R. v. E.S.D., 2021 BCPC 334

Citation: R. v. E.S.D. 2021 BCPC 334 Date: 20210824 File No: 237216-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. E.S.D. BAN ON PUBLICATION s. 486.4(2.1 CCC) ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. ALBERT Counsel for the Crown: S. Domaradzki Counsel for the Accused: D. Melville Place of Hearing: Surrey , B.C. Date of Hearing: August 24, 2021 Date of Judgment: August 24, 2021

[ 1 ] I am rendering my decision orally. Should a written version be released, I reserve the right to edit it for grammar, structure, complete citations and organizations without changing the reasonings or results. Introduction [ 2 ] E.D. is before the court, charged with two counts relating to an incident that allegedly took place on November 2nd, 2019. On that date, it is alleged that Mr. D., for a sexual purpose, touched his half-sister, S.D., who was (omitted for 15 years of age at the time, contrary to s. 151 of the Criminal Code . He is also charged with sexually assaulting Ms. D.

Both offences allegedly arise from the same set of circumstances. [ 3 ] The Crown called S.D., who explained that she was asked by the defendant to lie down with him and cuddle. She then described that she was touched in a manner that was sexual in nature. [ 4 ] Mr. D. testified that Ms. D. did lie down with him and that he put his arm around her but that he did not touch her in a manner in which she described. [ 5 ] I must consider the legal principles that are applicable in a trial where the evidence takes this form and determine whether the Crown has proven beyond a reasonable doubt that Mr. D. is guilty.

The Evidenc e [ 6 ] S.D. testified that, on November 2nd, 2019, she was 15 years old. She says that the defendant, E.D., her half-brother, had spent the previous night at her residence. She was living with her stepmother and two younger brothers. In the early morning hours, she entered the room where Mr. D. had been sleeping. This was the living room of the residence. Mr. D. had spent the night sleeping on a couch in that room. When she entered the room, Mr. D. was still on the couch where he had apparently spent the night, and her two brothers were also in the room.

She says that one brother was on a separate couch and the other brother was sitting on a rocking chair in the room. Her evidence is that her brothers were on their tablets and distracted from her interactions with Mr. D. She says that Mr. D. asked her to lie down on the couch with him to "cuddle". She was hesitant but agreed to lie down with him. [ 7 ] Mr. D. testified as well and his version of the events leading up to this moment are fairly consistent with Ms. D.'s testimony. He places her two brothers in similar locations.

He recalls them watching a particular television show and does not reference their use of the tablets. He confirms that he asked Ms. D. to cuddle and that, although she appeared hesitant, she ultimately agreed to lie down with him. [ 8 ] They are both lying on the couch with Ms. D. towards the edge and Mr. D. behind her. He says he places his arms over her shoulder and then falls asleep. At this junction of the narrative, Ms. D. describes Mr. D. touching her in a sexual manner. She says that he touches her stomach and tickles her.

She says he places his hand and finger on her vagina and digitally penetrates her and that he touches her breasts, squeezing them. She is not able to say how long this criminal touching goes on for. She describes freezing due to being scared but she eventually pushes his hand away and gets up off the couch. She describes Mr. D. also getting up and heading towards a room that I understand to be her stepmother's. Ms. D., therefore, goes into the bathroom and texts her mother telling her what has just occurred. Her stepmother contacts the police, who arrive at the home, speak to Ms. D. and arrest Mr.

D., removing him from the residence. [ 9 ] Mr. D. says that he fell asleep with his arm around Ms. D.'s shoulders and the next thing he recalls is Ms. D. getting up off the couch. He then says he falls back asleep and is awoken by the police, who are there to detain and arrest him. Mr. D. denies that he touched Ms. D. in the manner in which she described. Legal Framework Reference R. v. Virk , 2018 BCSC 2409 [ 10 ] Mr. D. is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt.

The presumption of innocence is a cornerstone of our criminal justice system originally embedded in our common-law tradition and now guaranteed as a fundamental legal right under our Constitution. The presumption of innocence, and along with it, the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty.

Without these protections, there would be a serious risk of wrongful convictions, an outcome that cannot be accepted in a free and democratic society. [ 11 ] The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is more likely than not: example, better than 50/50. In its landmark 1997 decision in R. v.

Lifchus , the Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this

demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [ 12 ] This instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendant in this case is likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence.

Before I can find the defendant guilty, I must be sure that he committed the offence charged. [ 13 ] The presumption of innocence and the standard of proof beyond a reasonable doubt apply in sexual assault cases just the same as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard a difficult one. [ 14 ] First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eyewitnesses apart from the complainant and the person accused of the offence.

Often, these cases come down to the word of one person against the other; the classic he said/she said scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt.

It is possible that the judge might not fully believe the defendant's version of the events and might find the complainant's version to be more credible but still be uncertain as to what actually happened.

In that situation, there is a reasonable doubt, the benefit of which must go to the defendant even where the complainant's story is more plausible or more believable than that of the defendant's. [ 15 ] To assist in the proper application of the burden of proof when there are competing versions of what happened, the Supreme Court of Canada has recommended that the issue be considered in three steps as follows, from R. v. W.(D.) . First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. This instruction, commonly referred to as a W.(D.) instruction, has become another standard instruction given to all criminal juries and criminal trial judges will generally instruct themselves in the same manner.

However, as was said in the W.(D.) case itself, and in subsequent decisions of the Supreme Court of Canada, there is no particular magic in the incantation of these three steps. [ 16 ] It is sometimes thought that the application of the principles that I have referenced above are unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused.

Those critics fail to understand the purpose of sexual assault trials which is to determine whether or not a criminal offence has been committed. [ 17 ] It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant; the focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt.

In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other witnesses. There will often be no physical or other corroborative evidence such as the case before me today. [ 18 ] For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden and one that is hard to discharge on the word of one person.

However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequences of ensuring that innocent people are never convicted. [ 19 ] Although the slogan, believe the victim, has become popularized of late, it has no place in a criminal trial.

To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. This is antithetical to the fundamental principles of justice enshrined in our Constitution and the values underlying our free and democratic society. [ 20 ] Where, as in the present case, there is directly conflicting testimony from the parties respecting the issue of any sexual contact between the accused and the complainant, I must assess the evidence with great care.

I must avoid the temptation of simply choosing between the two versions of events. It is not an all-or-nothing process and determining facts, that is, making findings as to what actually occurred in any given case, the court is free to reject some aspects of a witness' evidence and accept others and indeed to assign different weights to different parts of a witness' evidence. [ 21 ] There is no issue in this case that if I am satisfied as to the facts as set out by Ms. D. that Mr. D. will be guilty of the two offences he is charged with.

It is, therefore, unnecessary to discuss the elements of the two offences. [ 22 ] I have carefully considered the evidence of Ms. D. She is a young person and I have specifically directed myself to principles relating to the evidence of children and the importance of not placing the same exacting standards on their evidence as that of an adult. For example, I do not find her inability to recall the background of how long Mr.

D. had been staying at the residence or how long the touching took place to detract from her evidence. [ 23 ] I have carefully reviewed the evidence that defence counsel has directed me to relating to the relative location of her two younger brothers and the inference that it is less likely that the sexual touching would have occurred because of that. I found her to be a credible and reliable witness and do not think that the fact that her two brothers were in the room detract from her versions of events. There is, of course, no inviolable rule as to how a victim of a sexual assault will behave.

Her failure to draw attention to the incident while it was occurring does not impact my assessment of her credibility. [ 24 ] Mr. D. presented as an unsophisticated and not particularly articulate 21-year-old. I learned little about his background but clearly

his use of language at times was odd. He referred to passing out when it became clear that he was referring to falling asleep. Although his inability to discern the passage of time during his narrative of what occurred may have raised issues as to his credibility overall, I have found little or no objective evidence to assist me in determining how much time actually passed at any given part of the morning that was described. [ 25 ] The very act of asking his younger half-sister to cuddle raises some concerns with me, as it seems odd. In fact, Ms.

D. said she was hesitant, which demonstrates that she may have also found the request unusual. [ 26 ] As earlier referenced, I find Ms. D.'s evidence to be credible and reliable and I applaud her bravery in pursuing this matter with the authorities and then testifying in court. I have applied the principles set out above and particularly those that apply when the defendant in a trial testifies. I do not believe the evidence of Mr.

D. and had this matter been a question of determining proof on a balance of probabilities, I would have likely found him guilty, but that is not the test. [ 27 ] I find that after considering his evidence in the context of all the evidence I have heard, I am left with a reasonable doubt and, therefore, I find him not guilty of the two charges before the court. (REASONS FOR JUDGMENT CONCLUDED)