R. v. A. J. Q. Date:, 2017 BCPC 421

Citation: R. v. A. J. Q. Date: 20171108 2017 BCPC 421 File No: 23668 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A. J. Q. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON PUBLICATION BAN (pursuant to s. 486.4(2) - Complainant or Witness for listed sexual offences and 486.4(3) - Complainant or witness under 18 Counsel for the Crown: L. Feinberg Counsel for the Defendant: J. McCarthy Place of Hearing: Hazelton , B.C. Date of Hearing: May 15-17, June 6, Sept 7, 8 & Oct. 13, 2017 Date of Judgment: November 8, 2017 Back ground

[ 1 ] A.J.Q. was charged with committing a sexual assault against J.H. on March 13 th , 2015 in [omitted for publication] B.C. The court heard testimony spread over seven days. Counsel agree that the decision on this case hinges on the facts. Evidence [ 2 ] An agreement of facts and documents was filed as Exhibit 1. It included admissions as to jurisdiction, the age of the complainant, and the identity of the accused as the person named in the information. [ 3 ] The complainant testified and adopted her video statement given to the RCMP on March 14 th , 2015. She is a relative of the Q. family.

She stated that on March 13 th , 2015 she went to the accused’s home at the invitation of the accused’s daughter N.Q. [ 4 ] The complainant testified that she drank with N.Q., the accused and D.J. who left leaving the three alone in the house. She stated that N.Q. passed out on the couch and she continued to drink and talk with the accused about the loss of his son. [ 5 ] The complainant testified that the accused suggested that she go sleep on his bed and he would wake up N.Q. to go in and sleep on his bed as well.

The complainant stated that she was really tired and “very, very, very stoned” from smoking marijuana. She stated that she had slept over before but usually in a basement room. [ 6 ] The complainant stated she later awoke from the accused kissing her and she pushed him back and swore. She stated that her pants and underpants had been removed. She added that the accused was on top of her, with his pants and underwear down. She stated that he told her to be quiet and covered her mouth with his hand.

She stated that she removed his hand before she pushed him off. [ 7 ] She added that the accused had his penis in her vagina, that he was “humping” her and he kept saying “sorry.” She testified that when she got off the bed, she noticed a wet blood stain on the bed. She stated that she was bleeding from the vagina although as she told the interviewer, it was not due to her menstrual cycle. [ 8 ] The complainant testified that she saw the accused’s penis when she bent over to grab her pants and underwear as he was standing right in front of her.

She added that she went to the bathroom after she collected her clothes and then went to the living room couch and tried unsuccessfully to wake N.Q. [ 9 ] The complainant testified that the accused was very drunk, in her estimate 8 on a scale of 10 and that she had seen him very drunk several times before. She added that after she left the Q. residence she met three girlfriends and walked with them for a while and talked about the incident. [ 10 ] The complainant stated that she went home and sat with her family but didn’t disclose at that time as she was afraid of her mother’s reaction.

She added that she then went for a walk by herself, returned home and disclosed to her mother. She was then taken to the hospital. [ 11 ] The complainant testified that after her return from the hospital she found N.Q. in the H.’s residence and heard her mother tell N.Q. about the incident. At the end of cross-examination she hesitantly responded yes to the question “You don’t have an actual memory of A.J.Q. (the accused) having sex with you, you just remember his face.

Immediately before she had rejected several similar suggestions by the defence counsel and said that she was as sure about everything she had testified to as she was to those responses. The question was rephrased and put to her in different forms to which she had said she saw the accused’s face. During the series of questions she stated she was confused and appeared to be so. [ 12 ] The complainant’s mother V.A. testified that the complainant came home approximately 7:00 to 7:30 p.m. March 13 th , 2015 and disclosed the incident at 11:30 p.m.

She and the complainant’s father then accompanied the complainant to the hospital. She added that they arrived home approximately at 3:00 a.m. and later Cpl. Leask attended and took the complainant to the detachment to obtain a statement. [ 13 ] V.A. testified that the complainant had not been drinking at home, before N.Q. phoned her to come over. She added that the complainant said after that she had only drank one beer and one mixed drink at the Q. residence but that she was mostly stoned. [ 14 ] The complainant’s father A.A. testified that the complainant returned from a walk approximately at 10:30 p.m.

He added that at approximately 11:00 she came out of her room and disclosed to her mother. He stated they then accompanied her to the hospital. In cross-examination he indicated first that he could not remember anyone coming to their house after they returned from the hospital. When pressed he stated that neither the accused nor N.Q. came to the house. [ 15 ] Cpl. Leask testified as the person who interviewed the complainant and as the exhibit custodian after their collection and filing by other officers. Cst. Vanderham seized items (RCMP Exhibit 31 to 35) from the accused.

Approximately one hour later he seized a penile swab (RCMP Exhibit 30) from the accused. [ 16 ] Cst. Landrum testified that he seized items from the complainant. As well, he testified that after finding on his desk RCMP Exhibit 30 (the penile swab from the accused) that he had temporarily stored it in the detachment lunch room fridge. He added that he had not disturbed the packaging in which he received it. [ 17 ] Cst. Reed testified that he seized a forensic sample from a toilet seat on the Q. residence (RCMP Exhibit 39). [ 18 ] Cst.

Baylin testified that he moved RCMP Exhibit 39 from the main Exhibit locker to the temporary Exhibit locker for court but that he did not enter that movement in the Major Exhibit Flow Chart but that he did record it in his disclosed notes. [ 19 ] A DNA analysis report was filed as tab G of Exhibit 1. It stated that a DNA forensic analysis was done on RCMP Exhibit 2 which was the vaginal swab of the complainant. As well, the accused’s underwear (RCMP Exhibit 31) was forensically analysed. There

were two results obtained. The first result was that only the complainant’s DNA was found in her vaginal swab. [ 20 ] The second forensic result was that female DNA was found in three sites on the front inside panel of the accused’s underwear and that the probability of that DNA not being from the complainant was 1 in 440 quintillion. As well, he testified that the three sites in the underwear contained “sperm fractions”. [ 21 ] Exhibit 1, tab B contained the hospital records for the examination of the complainant on the evening of March 13/14 th , 2015.

The patient care report notes “some vaginal bleeding unassociated with menstrual period.” Similarly, the Emergency Department Note by Charles Eckfeldt on March 18 th , 2015 which states that a repeat pelvic exam is required “to determine source of bleeding…”. [ 22 ] By admission 21 in Exhibit 1, Steven Dennison was qualified as “competent to testify as to the extraction, quantification, amplification and capillary electrophoresis on the DNA Exhibits that was conducted by laboratory staff.” [ 23 ] In cross examination, he testified that the female DNA on the inside panel of the accused’s underwear could have migrated from the outside.

However, he added that was unlikely because the large amount of DNA material present at the three sites would have required the underwear to come into contact with a substantial and wet amount of female DNA. Also, he testified that there were no visible brown stains, such as blood on the outside of the front panel of the accused’s underwear consistent with such contact. He did note that there were white spots visible on the front of the underwear. These were not tested. [ 24 ] The defence called N.Q. to the stand.

She testified that on March 13, 2015, she, her father (the accused) with two friends drove to Terrace. They drank on the way, while in Terrace, on the way home and after they arrived home. She testified that she was drunk. She added that the complainant knocked on the door and came in for 10 minutes while waiting for M.J. [ 25 ] N.Q. added that when M.J. arrived the complainant left with him to go drinking with two other friends. She stated that she then sat drinking with the accused for a couple of hours. She testified that the complainant returned to the Q. residence with S.L.

She wouldn’t let the complainant and S.L. enter but went outside and smoked with the complainant. [ 26 ] N.Q. went on to testify that she entered her home and went to sleep in her parents’ room. She added that she was awakened by her father who told her that the complainant was again at the door. She met the complainant who was “really upset and really drunk.” She stated that the complainant was upset because of a problem with the other people with whom she had been drinking. [ 27 ] She again had a couple of cigarettes with the complainant.

She testified that she then told the complainant that she had to leave as N.Q. was sleepy. N.Q. said that after the complainant left, N.Q. had another drink and went to bed although she didn’t remember where in the home. [ 28 ] N.Q. testified that the next thing she remembered was when the RCMP woke up her father. She added that she was a heavy sleeper. When she awoke she found herself lying on the foot of her parents’ bed. [ 29 ] N.Q. stated that she then went to the complainant’s home but only M. was there.

She added that approximately 90 minutes later the complainant and her parents and grandmother returned from the hospital. She testified that V.A. did not tell her what happened in the incident alleged by the complainant. [ 30 ] N.Q. was then cross-examined on differences between her testimony and a statement she had given to the RCMP on March 14 th , 2015.

There were many inconsistences between the statement and testimony but she remained firm on her testimony that the complainant came over three separate times and was only inside the house with her for ten minutes on the first visit. [ 31 ] The accused gave relatively brief testimony. He described a pattern of heavy drinking from approximately 10:00 a.m. on the way to Terrace and in Terrace.

He stated that because he was drunk he did not remember leaving Terrace or the trip home. [ 32 ] The accused testified that he did remember arriving at home, getting out of the truck and sitting in the house having a few drinks but that he did not remember with whom. He added that the next thing he remembered was being awoken by the RCMP “pounding on the door”. When he awoke he was on the left side of his bed which was shown in the Exhibit 1, tab E photo. He added that N.Q. was also on the bed sleeping.

He stated that when he awoke he was wearing the underwear seized by the RCMP and analysed in the DNA report as RCMP Exhibit 31.

Submissions [ 33 ] The defence submitted that the careless procedure of the RCMP in handling the exhibits seized put the reliability of the DNA analysis in doubt. [ 34 ] As well, it was submitted that the complainant’s DNA found in the inside panel of the accused’s underwear could have been deposited innocently, if the accused had come into contact with her DNA from the wet blood stain the complainant said existed on the accused’s bed. [ 35 ] It was submitted that the DNA could have been on the inside of the underwear from three alternate innocent methods. First, seeping through the underwear from the outside.

Second, by A.J.Q.’s hand touching the blood stain and then the inside of his underwear. Third, if A.J.Q. had been wearing the underwear inside out. [ 36 ] The defence submitted that portions of N.Q.’s evidence were consistent with the testimony of the complainant such as N.Q.’s attendance at the H.’s home after the RCMP had become involved.

Yet, it was submitted that N.Q.’s evidence that V.A. did not tell her about the incident contradicts the complainant but is consistent with the evidence of A.A. [ 37 ] Other examples of contradictions between the evidence of N.Q. and the complainant were that N.Q. denied that she passed out on the couch, that D.J. was not present, that she did not invite the complainant to the house and of course that the complainant was never

in A.J.Q.’s bedroom. It was submitted that because the complainant does agree on other points such as having met N.Q. outside thehouse, as a whole the evidence of the complainant is unreliable. [38] The defence further submitted that the complainant’s testimony was unreliable because she was in her own words, “really,really, really stoned” and “very drunk”. The defence stated that its theory was that the complainant remembered waking in the accused’sbed, bleeding from her vagina and “reconstructed” the sexual assault to make sense of the situation.

Accordingly, it was submitted on aconsideration of the evidence as a whole, that it would be dangerous to pick and choose some of the complainant’s testimony to acceptand that the court should have a reasonable doubt. [39] The Crown submitted that each physical exhibit seized was individually packaged and none of the seals or packaging on theexhibits was disturbed.

Accordingly, it was submitted that contamination was impossible and that the expert Dennison had testified thecomplainant’s female DNA on the inside of the accused’s underwear from seeping was plausible but not reasonable in this case. [40] The Crown recited the evidence of the complainant and stressed that little weight should be given to her agreement that shedidn’t remember the accused sexually assaulting her but only remembered his face.

It was submitted that when she agreed to thatproposition in cross-examination she was hesitant and confused. [41] The Crown noted that V.A. had not been asked if N.Q. was at their residence after their return from the hospital. [42] The Crown submitted that as per paragraphs 47 and 48 of R v F. (C.C.) (SCC), [1997] 3 S.C.R 1183, if thereis inconsistences between the video statement of a child witness admitted under s715.1 and viva voca, evidence goes to weight. Therewas a 715.1 statement of the teenage complainant admitted in this trial.

It is for the trial court to determine which version, if any, toaccept. [43] The Crown agreed with the defence that an R v W. (D.R.) (SCC), [1991] 1 S.C.R. 742 analysis should be donebut that there were no major internal or external inconsistencies in the complainant’s testimony. If accepted, all elements of a sexualassault are made out. [44] The Crown further submitted that the testimony of N.Q. was unreliable due to its internal and external inconsistences andshould be rejected.

Finally, the Crown submitted that the DNA evidence corroborates the evidence of the complainant and on aconsideration of all the evidence that this court should be satisfied beyond a reasonable doubt of the guilt of the accused. [45] Both counsel referred this court to a number of authorities.

The defence referenced, R v Gostick (1999) (ONCA), 137 C.C.C. 3d 53 (O.C.A.) and R v Owen, (2001) (ON CA), 150 O.A.C. 378 to remind the court to assess bothCrown and defence witnesses in a similar manner and to weigh the evidence of the witnesses on more than demeanor. [46] As well, the Crown referenced paragraphs 27 and 28 of R v Johnson 2010 ABCA 230, which holds that issues concerning theprobability of DNA numbers goes only to weight and does not render the evidence inadmissible. [47] Finally, the Crown referred this court to an unreported decision R v Harris and Shanoss, BCPC Smithers #23352 (Sept. 23.2016).

In paragraphs 114 through 128 the presiding judge analysed and found major portions of the complainant’s testimony unreliable. In paragraph 119 it was noted that in cross examination the complainant agreed with the proposition that what she remembered did nothappen.

However, in considering the DNA evidence in that trial, the judge held that it provided a strong and sufficient confirmation asto the presence of the accused leading to an eventual conviction. [48] In paragraph 133 of the R v Harris and Shanoss decision, the trial judge held that: There is no evidence to support the possibility that EES’ DNA (the complainant) would have been deposited onto (the accused who wasconvicted) in some other occasion other [sic] then as alleged by (the complainant)… Analysis [49] In this case the court accepts the evidence of the complainant as to being invited to and her attendance at the Q. residence.

V.A.corroborated the invitation by N.Q. Accordingly, I reject N.Q.’s testimony in that regard. [50] This court accepts the complainant’s evidence that she went to sleep on the accused’s bed and awoke to find him having sexualintercourse with her. Her presence in the bed is corroborated by the blood stain on the sheets shown in Exhibits Four and Five. [51] The blood stain also corroborated her evidence of suffering non-menstrual bleeding from her vagina.

In turn the forensicevidence of the complainant’s DNA on the inside panel of the accused’s underwear corroborated both the complainant’s evidence ofphysical contact with the accused and her presence in the bed. [52] The procedural mistakes of the RCMP in the handling of RCMP Exhibit 30 are irrelevant to the forensic findings in RCMPExhibit 31 (the accused’s underwear) as the two samples were both securely packaged and were collected at different times. [53] A.J.Q. candidly testified that he remembered nothing after having a few drinks at his home after returning from Terrace.

Indeed, he could not remember with whom he was drinking. [54] This court rejects the testimony of N.Q. where it contradicts that of the complainant. That testimony on the witness stand wasriddled with contradictions with her earlier statement to the RCMP. It is also unreliable in that, if it was accurate, it would be impossiblefor both blood of the complainant to be on the accused’s sheets or the DNA of the complainant to be on the accused’s underwear. [55] Accordingly, on a consideration of the evidence as a whole, this court is satisfied beyond a reasonable doubt that A.J.Q. is guiltyas charged.

______________________________ W. F. M. Jackson Provincial Court Judge