R. v. C.Y. Date:, 2015 BCPC 463

Citation: R. v. C.Y. Date: 20150312 2015 BCPC 463 File No: 23768 K-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.Y. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: S. Patola Counsel for the Defendant: J.F. Connolly Place of Hearing: Nelson , B.C. Date of Hearing: March 12, 2015 Date of Judgment: March 12, 2015

[1] These are reasons for judgment on Information 23768 K-1. The accused C.Y. is charged with the sexual assault of thecomplainant Ms. J. from October 1, 2011 to June 30, 2012. [2] The accused and the complainant were in a relationship. Their sexual practices were unusual. The complainant consented tosexual practices like nibbling and slapping, but says that she did not consent to choking, heavy biting or being urinated on. The accuseddenies that he choked or bit the complainant, or that he urinated on her. [3] The issue raised is credibility. [4] The principal witness for the Crown was the complainant, Ms. J.

The complainant testified by closed-circuit television. Shesaid that she had been in a relationship for about seven or eight months with the accused, starting in October 2011 until April or May2012. At the time, she and the accused were living in Nelson, British Columbia. [5] They lived together in a bachelor apartment on the outskirts of Nelson, but after a short period of time the accused left to live ina trailer. The accused began a relationship with another woman, and both relationships continued simultaneously.

On at least oneoccasion, the accused tried to have sex with the complainant and the other woman at the same time. [6] The complainant testified that the sex included consensual nibbling, but that she did not consent when he bit her harder. Shesaid she told him to stop, but he ignored her. She said she tried to use a system of safe words, like yellow light and red light, but theaccused would ignore them too. The complainant says that the accused left bite marks on her body, and that the hitting got moreaggressive.

She said that there were over a dozen incidents when the biting went past what consensual nibbling that she consented to. [7] She said that there was consent for him to urinate on her, but not in the way that he did when she was in the bathtub in anincident that I will come to. She said that there was consent to anal intercourse, because he did not really hurt her. [8] As the relationship continued towards the end of 2011, there was an incident when the accused choked her until she almostblacked out.

She says that she did not expect that, and she did not consent to that. [9] Sometime in the start of 2012, the complainant became pregnant. She testified that she had a doctor, but that she did not showthe doctor the marks on her body because she was pregnant with the accused’s child. [10] The relationship between the accused and the other woman progressed. Around March 21, 2012, the complainant’s birthday,the relationship between the three people became worse. Around that time, the accused and his other girlfriend moved out to a place onthe lake. According to the complainant, one day there was an argument.

She says that the accused threatened to hit her, or to have herbaby taken away, unless she dressed up in the schoolgirl costume and got into the bathtub. She says that she complied with his demandsand did so. When she was in the bathtub, he urinated on her, and then ejaculated on her. She said that she consented to none of this. [11] In April or May 2012, the complainant lost her child. The child died shortly after being born. [12] About a month after the death of her child, the complainant made a statement to the police. [13] The other woman was never present when the alleged assault took place.

The complainant’s doctor was never shown the bitemarks on her body. [14] The complainant left Nelson, and went to Fernie. She came back to Nelson, and spent one or two days in the accused’s home,which by that time he was sharing with the other girlfriend. [15] The complainant also gave evidence about the accused whispering to the unborn child in her stomach, and saying horriblethings. She admitted that she had not included this detail in the statement that she made to the police.

She said that she kept piecingeverything together, and that sometimes she would be in an amnesiac state, and then the memory would come back. [16] C.Y. testified in his own defence. [17] He admitted having a sexual relationship with the complainant. He said, “I am weak, I am a man.” [18] He denied biting the complainant or hitting her. He said that because of a variety of medical issues, he was far too weak to dothose things.

He denied choking her or urinating on her. [19] He claimed that the complainant got pregnant by stealing a used condom. [20] With respect to the issue of credibility, I have reviewed the decisions of the Honourable Judge Jardine in R. v. Miller, 2007BCPC 404 , 2007 BCPC 0404 and R. v. Daud, 2007 BCJ No. 549. [21] Those decisions summarized the ruling of the Supreme Court of Canada in R. v. W(D), 1991 SCR 742 at 757-8. As JudgeJardine said, the doctrine of reasonable doubt applies to the issue of credibility, as it does to every other issue in a criminal trial. The lawis that if I believe C.Y., I must acquit him.

If I do not believe C.Y. but am left in reasonable doubt by his testimony then I must acquithim. Even if C.Y.’s evidence does not raise a reasonable doubt, I must then look to the whole of the evidence in the Crown’s case, todetermine whether the Crown has, on the totality of the evidence, proven the material elements of the offence beyond a reasonable doubt.Finally, if after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must find C.Y. not guilty. [22] In R. v.

Mackenzie (1993) (SCC), 18 CR 4th 133 at 62, a case cited by Judge Jardine, Chief Justice Lamerruled that the version most favourable to the accused is entitled to the benefit of the doubt.

[ 23 ] When I apply that law to the facts before me, I have no hesitation in saying that I do not believe C.Y., nor am I left with a reasonable doubt because of his evidence. [ 24 ] However, I must still look to the whole of the evidence and determine whether the Crown has proven the material elements of the offence beyond a reasonable doubt. The Crown’s case consisted of the evidence of the complainant. When I consider her evidence, I am troubled by her evidence about amnesiac states and memories coming back to her.

I am troubled that her evidence of bite marks on parts of her body that a doctor might reasonably have seen, did not seem to have been seen. I am troubled by the fact that the manner in which the relationship ended, including the involvement of a new girlfriend and the death of her child are highly traumatic events, and that these highly traumatic events occurred shortly before the first complaint. When I consider the evidence, I find that I am left with a reasonable doubt. I find C.Y. not guilty.