R. v. R.R.C., 2020 BCPC 3

Citation: R. v. R.R.C. 2020 BCPC 3 Date: 20200107 File No: 25249-1 Registry: Houston IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Redacted for Publication REGINA v. R.R.C.

Section 486.4 Ban on Publication CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Purewal, N. Counsel for the Defendant: Strimbold, K. Place of Hearing: Smithers , B.C. Date of Hearing: August 12, December 2, 2019, and January 6, 2020 Date of Judgment: January 7, 2020

A Corrigendum was released by the Court on June 26, 2023. The correction has been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] O.F. is a remote seasonal fishing village on the north side of B.L. It is accessible by boat from N.L. which is an 18 kilometre drive from G.I., BC. During the summer months, O.F. is sparsely populated by two extended families who return to their ancestral community to hunt, fish and gather. Typically the members of one family reside in the west side of O.F. and the other family, the east side.

It takes about 30 minutes to walk the entire length of the village. [ 2 ] On the August long weekend, the two families congregate for O.F. Days, during which O.F.’s population swells exponentially. As a number of the old buildings have been abandoned and now unsound, many visitors occupy tents. It was during this celebration in 2018 that V.H.P. was sexually assaulted while sleeping alone in her tent. She woke in the early morning hours of August 6, 2018, to discover someone inside her tent. Her pyjama bottoms were pulled down to her knees and her top unbuttoned.

The male intruder had his hands between V.H.P.’s legs and his fingers in her buttocks. She screamed and he fled. [ 3 ] Some of V.H.P.’s family members heard her screams. They observed her distress immediately after the assault. At the time V.H.P. could not or would not identify her assailant. V.H.P.’s family members conducted a perimeter search but found no suspect. Days later, V.H.P. said the accused, R.R.C., was the man who assaulted her. R.R.C. is a distant relative who V.H.P. had known for years. In 2018, R.R.C. was working at O.F.

V.H.P. said she initially withheld R.R.C.’s identity as her assailant to prevent anyone getting hurt. R.R.C. does not contest that someone broke into V.H.P.’s tent and sexually assaulted her; however, he steadfastly denies he was the perpetrator. ISSUES [ 4 ] The salient issue in this case is the identity of the offender. Has the Crown proven beyond a reasonable doubt it was R.R.C. who broke into V.H.P.’s tent and sexually assaulted her in the early morning of August 6, 2018?

PROCEDURAL HISTORY [ 5 ] By way of Information 25249-1 sworn November 2, 2018, R.R.C. is charged by indictment with the following offences: Count 1 R.R.C., from the 3 rd day of August, 2018 to the 6 th day of August, 2018, inclusive, at or near O.F., G.I., in the Province of British Columbia, did sexually assault V.H.P. contrary to

Section 271 of the Criminal Code . Count 2 R.R.C., from the 3 rd day of August, 2018 to the 6 th day of August, 2018, inclusive, at or near O.F., G.I., in the Province of British Columbia, did break and enter a tent with intent to commit an indictable offence therein, contrary to Section 348(1) (

a) of the Criminal Code . Count 3 R.R.C., from the 3 rd day of August, 2018 to the 6 th day of August, 2018, inclusive, at or near O.F., G.I., in the Province of British Columbia, did break and enter a tent and commit an indictable offence therein, sexual assault, contrary to Section 348(1) (

b) of the Criminal Code . [ 6 ] The matter came before me for trial on August 12, 2019, December 2, 2019, and January 6, 2020. I heard from Crown witnesses, V.H.P., J.B., C.G., B.G.J., T.G., S.P., M.P., Constable James Wingfield, Constable Deborah Goble, Constable James Fennema, I heard Defence witnesses R.R.C. and C.P.H.

I received into evidence the following exhibits: Exhibit 1: Notice pursuant to s. 30(7) of the Canada Evidence Act, R.S.C., 1996, c. 124, together with the affidavit of J.P. attaching the August 7, 2018 medical record of V.H.P.; and Exhibit 2: Nine photographs of O.F. taken by Constable Deborah Goble on August 4, 2018. [ 7 ] Upon the conclusion of the trial on January 6, 2020, I reserved my decision. These are my reasons for judgment. BACKGROUND FACTS [ 8 ] R.R.C. is the accused. He is 41 years old (born [omitted for publication]).

He is a member of the [omitted for publication] First Nations and ordinarily resides in B.N.L., BC. [ 9 ] V.H.P. is the complainant. She is 57 years old and also a member of the [omitted for publication] Nation. She ordinarily resides in G.I., BC, but was born and raised in O.F. at a time when it was a viable community. She is now an elected councillor to the [omitted for publication] Nation representing O.F.

She represents the [omitted for publication] Nation in its negotiations with the government in a frontal agreement and environmental assessment law reform. [ 10 ] V.H.P. is significantly hearing impaired for which she wears hearing aids. [ 11 ] The offences are alleged to have occurred in O.F., which is one of the “mother reserves” of the [omitted for publication] Nation.

In 1955, O.F. was amalgamated with F.B. and consequently never developed. Its residents relocated to T., a reserve community on the south side of B.L. or W., a reserve community within the municipal boundary of B.N.L., BC. O.F. withered as a thriving community and many of its buildings have been abandoned. It is only accessible by boat or float plane and is now considered a recreation site. [ 12 ] Two distinct, but related extended families return to O.F. during the summer months to socialize, hunt, fish and harvest berries. They settle in two separate communities, one in east O.F., and the other in the west.

The communities are not contiguous. R.R.C. estimates there is an expanse the length of two or three football fields separating the two communities. [ 13 ] One family, headed by V.H.P., occupies one side of O.F. (the “P. side”). V.H.P.’s son, M.P., owns a house (the “brown house”) on the P. side which once belonged to his father. V.H.P.’s sister, E.G., and her daughter, T.G., also have a house in O.F. (the “white house”), which is approximately 200 meters from the brown house.

Prior to his death, M.P.’s grandfather, J.A., owned what is alternatively referred to as the “blue house” or “company house.” The blue house has a communal kitchen available to the P. side seasonal residents. Behind the blue house is a community hall were O.F. residents hold their communal meetings, feasts or potlaches. [ 14 ] The second family headed by R.A. occupies the other side of O.F. (the “A. side”).

R.A.’s house is approximately 1.5 kilometres from M.P.’s brown house. [ 15 ] In March 2018, the [omitted for publication] Nation hired R.A. and M.P. to oversee the maintenance and repair of O.F. and prepare the site for O.F. Days. R.A. supervised R.R.C., a seasonal worker responsible for the maintenance of the A. side, and M.P. supervised RD. A., a seasonal worker responsible for the maintenance of the P. side. Occasionally, the two labourers and their supervisors worked together on larger communal projects, such as maintaining the three docks or the old cemetery.

Also if R.R.C. finished his assigned projects on the A. side, he would assist with cutting grass or brush on the P. side. [ 16 ] Ordinarily, while working in O.F., R.R.C. lived with R.A. and M.A. in their cabin on the A. side. M.A. cooked for the A. side residents. [ 17 ] Given the dearth of habitable dwellings, some of the seasonal residents of O.F. live in tents and access communal facilities available in some of the intact permanent structures. [ 18 ] V.H.P. set up her tent in the first week of June 2018, in close proximity to the brown house.

She had a domed tent with a screened seating area and a protective rain cover. In order to access the sleeping area of the tent, V.H.P. had to undo two zippers, one of which is in the shape of a backward “C”. Because of her hearing impairment, V.H.P. closed both zippers completely before retiring for the evening. She did so backwards, from the bottom to top because it made her feel safer. She felt this might increase the chance that she would hear someone trying to open her tent. [ 19 ] For years, V.H.P. returned to O.F. for the summer season. She set up her tent in early June and removed it in late September.

Although she had access to one of her family’s houses in O.F., she preferred the privacy of her own tent. In June and July 2018, V.H.P. spent much of her time in O.F., returning to G.I. from time-to-time to work, use the laundry facilities, and fetch supplies. [ 20 ] While in O.F., V.H.P. sometimes attended weekly team meetings held at the community hall with the supervisors, M.P. and R.A., and their workers, R.R.C. and RD.

A. [ 21 ] Also present in O.F. at various times in the summer of 2018, was V.H.P.’s friend, J.B., her son M.P. and his wife, S.P., V.H.P.’s niece and nephew, T.G. and B.G.J., her nephew A.P. and his girlfriend, C.G., and V.H.P.’s sisters, E.G., D.A. and M.A. Ordinarily E.G. cooked for the P. side residents. [ 22 ] Each August long weekend, former residents and their families return to O.F. to celebrate O.F. Days. J.B. estimates a couple of hundred people attended O.F.

Days in 2018, V.H.P. estimates there was 80 to 100 people, M.P. believed there was 30 to 40 people on the P. side, and R.R.C. estimates there was 50 to 60 people on the A. side. The returnees gathered in O.F. for a fishing derby and to socialize, feast, harvest and process fish. The children participated in water sports and watched fireworks. At various times, the two families, usually separately, but sometimes together, hosted communal breakfasts and dinners for their members. [ 23 ] In 2018, O.F. Days commenced on Friday, August 3 rd and continued to noon on August 6 th . Many people set up tents.

There were approximately 12 to 16 tents set up on the P. side during this time, of which six or seven were in the field between the brown house and white house. [ 24 ] In 2018, R.A. arranged for C.P.H. to provide the entertainment for O.F. Days. Each year, C.P.H. hauls his sound gear, music books, computer, cables, and karaoke equipment from his home base in Smithers to O.F. In 2018, he arrived in O.F. on Thursday afternoon before the August long weekend and set up camp.

Ordinarily he does not set up his sound gear until Friday, but in 2018, he did so on Thursday evening, August 2, 2018. [ 25 ] In 2018, C.P.H. hosted karaoke on the A. side from 9 pm to 3 am on Thursday and two other evenings of the three day August long weekend. Residents could hear the karaoke music on the Power side. R.R.C. assisted C.P.H. with the karaoke, which included setting up and taking down and storing the equipment. He also assisted inebriated karaoke singers finding the songs they wished to sing. [ 26 ] During O.F. Days, R.R.C. sometimes ran errands to the V.P. family at R.A. and M.A.’s bidding.

He ordinarily did so using R.A.’s quad. R.R.C.’s tasks included ferrying people from the P. side to the A. side, and delivering messages, invitations, equipment or supplies. [ 27 ] On the evening of August 5, 2018, about 25 members of the V.P. family and their friends were drinking and socializing around a campfire located near the brown house on the P. side.

The V.P. campfire was on the opposite side of the brown house to where V.H.P. had set up her tent, therefore her tent was not visible to anyone at the campfire or on the brown house porch. [ 28 ] Almost all the Crown witnesses knew R.R.C. personally; many had known him for years. V.H.P. knew R.R.C. most of her life

and considered him a distant relative. They had no intimate relationship. CROWN WITNESSES V.H.P.’s evidence [ 29 ] Over the course of the evening on August 5, 2018, V.H.P. consumed three beers and smoked some marijuana. She did not have any wine; she did not consider herself intoxicated. V.H.P. spent the later part of the evening visiting her sister E.G. on the deck of the white house. While at E.G.’s residence V.H.P. did not consume any alcohol because her sister does not drink.

From the white house deck, V.H.P. observed R.R.C. arrive at the campfire outside the brown house. [ 30 ] At 10:30 pm J.B. escorted V.H.P. back to her tent. V.H.P. zipped up her tent completely, put on her pyjamas, removed her hearing aids and went to bed alone. [ 31 ] At 4:30 am V.H.P. woke up to find her pyjama shirt unbuttoned and her bottoms down to her knees. A man was in her tent and had his hand between her legs and his fingers in her buttocks. She had not heard him enter. V.H.P. yelled loudly that someone was in her tent. The male intruder jumped up and ran out of the tent.

V.H.P. recognized him and called out his name, “R.R.C.” R.R.C. turned and looked at V.H.P. and when doing so tripped over her tent flap. V.H.P. jumped up, pulling up her pyjama bottoms and buttoning her shirt at the same time. She grabbed her hearing aids and left her tent. She saw R.R.C. run up toward the community hall on her right, so she ran to her left in order to get away from him. [ 32 ] V.H.P. heard people on the porch of the brown house. She ran to them screaming. S.P. let her inside the brown house and onto the porch. There she encountered C.G., B.G.J. and M.P.

V.H.P. told them someone was in her tent and had her clothes off. M.P. and B.G.J. went “running around” searching for the assailant. They checked all the tents on the P. side to ensure everyone was safe. V.H.P. later concluded that her tent was the only one that was touched. [ 33 ] Immediately after the incident, when V.H.P. ran to the brown house, she could hear the karaoke music emanating from the A. side of O.F. [ 34 ] Although she did not check a clock when she awoke, V.H.P. was confident it was 4:30 am. This is the time she ordinarily awakes to use the bathroom, at which time it was usually light.

V.H.P. says when she awoke it was not dark. She had a flashlight in her tent, but did not need it. Its interior was illuminated by the daylight which was coming through the open tent flap. She could see the community hall through her screen. She could clearly see R.R.C.’s face. She saw “his teeth, his cheeks, and his big fluffy eyebrows. His hair was spiked outside of his baseball cap.” When she got out of the tent, she could see R.R.C. running in the direction of community hall. [ 35 ] In cross-examination V.H.P. said the person in her tent was wearing a bomber jacket, although she did not describe it further.

She did not believe she told M.P. this detail. [ 36 ] V.H.P. did not tell anyone, at the time, she recognized her assailant as R.R.C. She withheld that information because she did not want anyone to get hurt. Alcohol was already involved and she feared that if she told her family the identity of her assailant, things might get out of control and she did not want that to happen. [ 37 ] Eventually V.H.P. returned to her tent alone with J.B.’s dog Z. She could not stop crying and was too upset to sleep.

After a half hour or so, at around 6 am, V.H.P. went to the blue house and met J.B. who was up having his morning coffee. She told him what happened, that someone was in her tent, but did not say who. J.B. tried to console her. Later that day (Monday, August 6, 2018), V.H.P. packed up and returned to her home in G.I. [ 38 ] V.H.P. did not invite R.R.C. into her tent and did not want him touching her. [ 39 ] On Monday (August 6, 2018), V.H.P. sent a text to Constable Deborah Goble, the First Nations liaison policing officer who she knew and trusted.

Constable Goble was on holidays, but agreed to meet with V.H.P. upon her return. [ 40 ] Shortly thereafter, V.H.P. went to Houston to report the assault. She parked in the mall facing the RCMP detachment, but did not recognize any of the officers she saw coming or going. She decided to wait for Constable Goble’s return before making a police complaint. [ 41 ] On Tuesday, August 7, 2018, V.H.P. went to see Dr. Christian Okebie in G.I. because she couldn’t sleep or stop crying and had an ongoing headache. He prescribed her Ativan. In her consultation with Dr.

Okebie, V.H.P. is reported to have said she “was in a camp 2 days ago when an unknown stranger came into her tent at night and wanted to rape her while she was asleep.” Dr.

Okebie’s clinical notes go on to state, “fellow campers tried to catch the man but he escaped into a nearby bush and was never caught . . . been so scared after the incident especially at night in her home, that a similar incident could happen again.” See Exhibit 1. [ 42 ] A couple of days after the incident V.H.P. told T.G. she knew her assailant and it was R.R.C. [ 43 ] On August 17, 2018, V.H.P. met with Constable Goble, who had recently returned from holidays.

V.H.P. gave her a formal statement identifying R.R.C. as the perpetrator. [ 44 ] V.H.P. returned to O.F. a week later but was too distraught to be in her tent and left. Eventually she took down her tent in September 2018. She did not return to O.F. again until O.F. Days in August 2019. J.B.’s evidence [ 45 ] J.B. is not a member of the [omitted for publication] Nation, but was in O.F. a few weeks in the summer of 2018 by invitation of V.H.P., M.P. and S.P. J.B. arrived in O.F. two weeks prior to O.F. Days. While there, he resided in the blue house and helped out with

the cooking and dishes. J.B. explained that by the summer of 2018, he and V.H.P. began to have “eyes for one another.” V.H.P. describes their relationship as “courting.” [ 46 ] J.B. was at the V.P. campfire on the evening of August 5, 2018. He had a couple of beer and at approximately 11 pm escorted V.H.P. back to her tent. He “tucked her in” and returned to the blue house, where he was staying. J.B. did not see V.H.P. again until 6 am the following morning, when she arrived at the blue house and told him of the assault. J.B. accompanied V.H.P. to G.I.

He stayed with her for a few days before returning to Smithers. He said V.H.P. was scared and was distraught as he had ever seen her. J.B. asked V.H.P. who was in her tent, but she would not tell him or anyone. When he returned to Smithers, J.B. left V.H.P. his dog Z. for company and security. [ 47 ] J.B. knew R.R.C. and believed he was at the V.P. campfire on the evening of August 5, 2018, for a couple of hours, drinking beer. C.G.’s evidence [ 48 ] C.G. was in O.F. for much of the summer of 2018 with her boyfriend, A.P., who is V.H.P.’s nephew.

C.G. is a member of the [omitted for publication] Nation and resides in T. [ 49 ] C.G. had been with the group of people drinking around the V.P. campfire on the evening of August 5, 2018. As the evening wore on, the group dwindled until it was just C.G., B.G.J. and S.P. sitting on the porch of the brown house socializing and drinking. [ 50 ] C.G. heard someone scream. A few moments later, V.H.P. came around the corner of the brown house in her pyjamas. She appeared terrorized – traumatized. C.G. and the others asked her what happened. V.H.P. was so shaken up it took her a couple of minutes to respond.

V.H.P. told the group that someone tried to break into her tent. C.G. and B.G.J. went to investigate, leaving V.H.P. in the care of S.P. C.G. and B.G.J. went to the shoreline of the lake, and then to the field near the community hall to see if they could observe anyone running across to the A. side, or anyone at all. They could not, so C.G. went to bed, taking her cousin S.G. to sleep with her out of fear for own safety. [ 51 ] C.G. says it was dark when she heard the scream, but does not believe she used a flashlight when searching for the perpetrator.

It was still dark when she went to sleep in her tent after she finished her search. [ 52 ] V.H.P. never told C.G. who was in her tent. [ 53 ] C.G. recalls R.R.C. coming to the V.P. campfire on a quad the evening of August 5, 2018. She did not recall him inviting people over for karaoke; she did not know how long he stayed at the campfire; and she did not recall hearing karaoke at any time either before or after the incident. B.G.J.’s evidence [ 54 ] B.G.J. is a member of the [omitted for publication] Nation and the nephew of V.H.P.

He was in O.F. with his wife and their two children on the August 2018 long weekend for O.F. Days. [ 55 ] B.G.J. says he was on the porch having drinks at 4:30 am with C.G. and S.P. M.P. was in the cabin. B.G.J. was not asked and did not explain how he concluded it was 4:30 am when V.H.P. came to the porch. [ 56 ] V.H.P. was in her tent which was on the opposite side of the cabin from where B.G.J. was drinking with C.G. and S.P. V.H.P. came around the corner, hysterical. She told them what had happened. She did not describe the person she says was in her tent.

B.G.J. could not recall what V.H.P. was wearing at the time. [ 57 ] B.G.J. and M.P. went around the brown cabin and checked out V.H.P.’s tent and the grassy hill behind it. It was dark and they used flash lights. They could not see anyone. B.G.J. could not recall if he and M.P. returned from their search at the same time. They consoled V.H.P. and went to bed. [ 58 ] B.G.J. remembers there being music that night but could not recall if he heard karaoke coming from the A. side at the time of incident. He did say he did not hear anyone at the time of the incident nor did he hear a quad.

T.G.’s evidence [ 59 ] T.G. is a member of the [omitted for publication] Nation. She lives in Prince George and attended O.F. Days with her brother, B.G.J. T.G. had been in O.F. for the summer and was staying in the white house. [ 60 ] T.G. did not join the others around the V.P. campfire on August 5, 2018. She was in bed sleeping at the time of the incident. Her brother, B.G.J., woke her up in “the middle of the night” and told her what had happened to V.H.P. T.G. went to see V.H.P., who was still in her pyjamas. V.H.P. appeared very frazzled, very upset and very scared.

T.G. tried to calm her down. [ 61 ] T.G. conducted a perimeter search with B.G.J. and M.P. to see if anyone else was about. She could not recall if S.P. participated in this search or stayed with V.H.P. It was dark and the searchers used flashlights. They checked the main areas beside the docks, the community hall and all around the houses on the P. side. They did not see anyone. When they were finished searching, they checked in with V.H.P., consoled her a little and went to bed. S.P.’s evidence [ 62 ] S.P. is married to M.P.

She did not recall there being a bunch of people around the campfire drinking in the early evening of August 5, 2018. S.P. does, however, recall R.R.C. coming over to the P. side that evening on a quad. He was there briefly to invite people over to the A. side for karaoke.

[ 63 ] S.P. says that at the time of the incident, she was sitting on the deck of the brown house drinking and socializing with C.G. and B.G.J. It was dark. V.H.P. approached them appearing shocked and afraid. She said someone was in her tent trying to bother her.

Prior to V.H.P. approaching the group, S.P. had heard nothing. [ 64 ] While the others went searching for the perpetrator, S.P. tried to comfort V.H.P. and let her know she would be okay. [ 65 ] S.P. says she heard karaoke music all night, including at the time V.H.P. came out of her tent and told her about the intruder. [ 66 ] S.P. testified that M.P. went searching for the perpetrator because there were children in the area. When he returned M.P. went to bed with S.P. in their tent. M.P.’s evidence [ 67 ] M.P. says he went to bed at 10:30 pm on August 5, 2018. He had not been drinking.

He does remember R.R.C. coming that evening on the quad inviting people on the P. side to come to the A. side for karaoke. R.R.C. was only briefly present at the V.P. campfire. [ 68 ] M.P. was lying in bed in his tent sleeping at the time of the incident. He woke up in the night to hysterical screams. He recognized them as coming from a female, but not from his mother specifically. He heard no words spoken, only terrified screams and outcries. While the screaming was ongoing he heard a rustling. He concluded it was someone running by his tent.

The runner tripped over the guy-wire securing the rain fly, fell to the ground, got up and continued running in the field toward the community hall. M.P. was inside his tent and did not see the runner. [ 69 ] Within a minute of M.P. hearing the screaming, his wife S.P. came and told him what had happened to his mother. M.P. got up and went to see V.H.P. who was at the campfire by the brown house. She told him someone was in her tent; she felt someone “going up her leg”; someone in a big fluffy jacket was over top of her.

She woke up and started screaming. [ 70 ] About 3 to 5 minutes after hearing the screams, M.P. got his flashlight and looked around to see if anybody was in the vicinity. He went by himself. He did not want to take anyone else with him because they were loud and had been drinking. [ 71 ] M.P. did not see anybody. He checked the community hall. He thought there might be someone running back to the A. side. He made this assumption because there is only bush and timber and no trails in the other direction.

He turned off his flashlight and proceeded quietly to listen in case the perpetrator broke any branches or make a noise. [ 72 ] M.P. snuck down the pathway with his flashlight off. When he approached the A. side, he sat and waited. All of a sudden, he noticed a flashlight approximately 100 yards away emanating from his Grandpa’s D.A.’s house. Its light was directed onto the walking path in front of M.P. As he believed the house was unoccupied and did not know what to make of it, M.P. abandoned the pursuit. [ 73 ] M.P. returned to the brown house and told V.H.P. he didn’t see anyone around and everyone was safe.

He and the others went to bed. [ 74 ] M.P. does not know the time of the incident, other than to say it was dark and after midnight. At the time he could hear the music from the karaoke on the A. side, which was still ongoing. [ 75 ] The next morning, around 7 or 8 am, M.P. went to his Grandpa D.A.’s house. There he found S.A. sleeping on the couch and R.R.C. emerging from one of the bedrooms. M.P. told R.R.C. he was looking for information on who was in his mother’s tent. He did not confront or accuse R.R.C. of being the perpetrator.

R.R.C. told M.P. it must have been S.A. [ 76 ] When M.P. spoke to him on the morning of August 6, 2018, R.R.C. was wearing a “big blue bomber jacket - a big fluffy winter style type of jacket, windbreakerish.” M.P. could not say if it was light or dark blue. [ 77 ] M.P. woke up S.A., advising him that he was searching for information about who was in his mother’s tent. He confronted S.A., who said he had spent the night with R.A. and was not feeling “too good”. M.P. then went to R.A.’s house in an attempt to get to the bottom of what happened.

In his view, the only way out of O.F. was by boat, so the perpetrator was still in the community. [ 78 ] When he left R.A.’s house, M.P. concluded he had done all he could. He had talked to everyone present. He did not get to the bottom of what happened. M.P. reported to his mother what he had learned from his inquiries in the morning of August 6, 2018. [ 79 ] M.P. says that V.H.P. described her assailant as a man of medium build wearing a big fluffy jacket. She did not identify him as R.R.C. M.P. says that when V.H.P. gave the description of her assailant he was present, as was J.B., C.G. and S.P.

M.P. felt his mother knew more than she said but didn’t want to tell him. [ 80 ] M.P. testified that R.R.C. looked the same on August 6, 2018, as he did in court. His hair was short at trial and M.P. said it was no longer the previous summer. M.P. said the jacket R.R.C. was wearing in court was not the jacket he was wearing the morning of August 6, 2018. Police Officers [ 81 ] None of the police officers were eye witnesses to the incident complained of. Constable Deborah Goble was in O.F. on August 4, 2018, for a visit in her capacity as the First Nations’ community policing liaison.

Quite coincidently, Constable Goble took the pictures of O.F. which were entered as Exhibit 2 in the trial. Constable Goble also took a statement from V.H.P. on August 17, 2018. [ 82 ] Constable Fennema lives in G.I., BC. On October 24 and 25, 2018, he took statements via telephone from T.G., C.G. and B.G.J. On November 2, 2018, he attended S.P. and M.P.’s home and took a statement from S.P. M.P. was not home then or on the many times Constable Fennema stopped by his residence to take a statement from him. Constable Fennema was unable to obtain a statement from

M.P. or J.B. until August 12, 2019, the first day of trial. On August 18, 2019, Constable Fennema obtained a statement from J.M. On September 16, 2019, the B.N.L. Police detachment took a statement from R.A. Sr. The police never obtained a statement from S.A. [ 83 ] Constable James Wingfield effected the arrest of R.R.C. in O.F. on September 6, 2018. R.R.C. was talkative and cooperative. The defence conceded voluntariness of R.R.C.’s statements. He admitted he was in O.F. on the offence date, as was V.H.P.

He made no admissions as to the offence. [ 84 ] No officer took photographs of the crime scene, even though V.H.P. did not remove her tent from O.F. until sometime in September 2018. Defence Witnesses R.R.C.’s evidence [ 85 ] R.R.C. testified on his own behalf. He said he was hired to work on the O.F. recreation site in early 2018. This was the first year R.R.C. worked for wages at O.F. He had been in O.F. helping R.A. the previous summer in 2017, but in a volunteer capacity. [ 86 ] While in O.F., R.R.C. ordinarily stayed with R.A. and M.A. in their cabin.

During the August long weekend, R.A. and M.A. had a full house for O.F. Days, so they opened up the uninhabited cabin belonging to D.A., now deceased. The cabin was 20 to 30 feet from R.A.’s cabin and a 10 to 15 minute walk from the P. side. R.R.C., S.A. and E.W. stayed in this camp during O.F. Days. [ 87 ] R.R.C. was not drinking during O.F. Days in 2018. In fact he has abstained from alcohol entirely for the past 2 years and 3 months. [ 88 ] R.R.C. recalls R.A. sponsoring karaoke events on Friday and Sunday of the August long weekend.

There was no karaoke on Saturday night because it was the night of the anniversary dinner. On Saturday (August 4, 2018), R.R.C. quadded over to the P. side to deliver a pressure cooker and extend to the V.P. family R.A. and M.A.’s invitation to join them for the anniversary dinner. All declined the invitation. [ 89 ] On Sunday (August 5, 2018), R.R.C. again quadded to the P. side to invite the residents to karaoke on the A. side. He did this at R.A.’s request. R.R.C. believes it was between 11:30 pm and 12:00 am when he arrived at the V.P. campfire.

R.R.C. stopped and talked to a large group at the V.P. campfire for five minutes or so. He says he saw M.P., S.P., T.G., C.G. and her sister, O., and R.A. Also present was V.H.P. and all her sisters, except E.G., who does not drink and has no tolerance for those who do. [ 90 ] Nobody from the P. side, except J.M. and his sister, wanted to attend karaoke. After five minutes or so, R.R.C. returned to the A. side. He was busy helping inebriated singers find songs, clearing empties and keeping the campfire going. After the karaoke ended at 3 am, R.R.C., C.P.H. and another person dismantled the equipment.

R.R.C. believes he finally finished with his karaoke duties at 3:30 am. [ 91 ] R.R.C. returned to D.A.’s cabin where he was staying for the night. It was a short walk from R.A. and M.A.’s place. Still, it was dark and he used a flash light. [ 92 ] D.A.’s cabin had three bedrooms. S.A. and E.W. were already present when R.R.C. arrived. They were either sleeping or passed out. S.A. was sleeping on the couch and E.W. in one of the bedrooms. R.R.C. was exhausted from the day’s activity and went to bed at 3:40 am.

He did not get up or leave the cabin after he went to bed. [ 93 ] R.R.C. woke up at about 8 am on Monday, August 6, 2018. He spotted M.P. and T.A. approaching D.A.’s cabin. He went outside to greet them. R.A. headed over to G.A.’s place. M.P. stayed and talked to R.R.C. M.P. told R.R.C. someone had been over on the P. side the previous evening and he was looking for information who that might have been. He told R.R.C. what had happened to V.H.P. R.R.C. told M.P. he didn’t know what he was talking about. He did not go to the P. side and he had just woken up.

He said S.A. and E.W. were also inside the cabin, and that he would go and see if he could wake them up. R.R.C. was unsuccessful in his attempts to wake either S.A. or E.W. and went back outside to talk to M.P. The only other information R.R.C. could convey to M.P. was that J.M. was reluctant to leave the A. side after the karaoke ended, and they had to ask him a few times to go back home because everyone had gone to sleep. R.R.C. and M.P. went on to discuss the fishing derby.

R.R.C. estimates his conversation with him took no more than five minutes. [ 94 ] R.R.C. denies going into V.H.P.’s tent or sexually assaulting her. In fact, he says he did not even know V.H.P. was occupying a tent. He knew the tent existed but did not know who used it. R.R.C. assumed younger members of the family would sleep in the tent and elders, such as V.H.P., would stay in one of the available P. cabins. C.P.H.’s evidence [ 95 ] C.P.H. testified that he arrived in O.F. with his karaoke equipment on Thursday afternoon, which would be August 2, 2018.

He provides a mixed bag of services, which include hosting karaoke, DJaying (Disc Jockey) and singing (collectively, “karaoke”). He set up a tent 40 feet from R.A. and M.A.’s cabin. [ 96 ] On the evenings he hosted karaoke, it began at 9 pm and ended at 3:00 am. The equipment had to be set up at the beginning of the evening and dismantled and stored at the end. It took half an hour or so to dismantle the equipment. [ 97 ] R.R.C. assisted C.P.H. with the karaoke. Although C.P.H. and R.R.C. were not continuously in each other’s presence, C.P.H. needed his assistance because R.R.C. was the only person not drinking.

A number of the guests were too intoxicated to find the songs they wished to sing without assistance. [ 98 ] C.P.H. believed he hosted karaoke on Thursday night and two other nights, which he initially thought were Friday and Saturday. He conceded that given it was a long weekend, the last Karaoke night could have been Sunday rather than Saturday night.

[99] When karaoke was ongoing, R.R.C. helped all night. Nevertheless, C.P.H. did not continually monitor R.R.C.’s comings andgoings. C.P.H. does not recall the quad being used in the last night he was in O.F. in 2018. ELEMENTS OF THE OFFENCE OF SEXUAL ASSAULT [100] R.R.C. is charged with sexual assault of under s. 271 of the Criminal Code and break and entering with intent and committingoffences under ss. 348(1)(

a) and (b). [101] The Crown must prove all the elements of the offences charged beyond a reasonable doubt before the court can make a finding ofguilt. The static elements for any criminal offence are: (

a) the identity in the sense that the person standing in the courtroom is the personwho is alleged to have committed the offence; (

b) the jurisdiction of the court over the person accused; and (

c) the timing of the offence.In this case there is no issues as to the static elements: a. The offences charged are alleged to have occurred on or about August 5, 2018; b. The offences charged are alleged to have occurred at or near O.F., British Columbia, which is within the jurisdiction of thisProvincial Court; c. The offences charged on Information 25249-01 are alleged to have been committed by R.R.C., born [omitted for publication];and d.

The R.R.C. appearing before the Court on August 12 and December 2, 2019, and January 6, 2020, is the same R.R.C. onInformation 25249-01. [102] The five essential elements specific to the offence of sexual assault are as follows: a. three criminal act (actus reus) elements: i. touching ii. the sexual nature of the contact iii. the absence of consent b. two criminal intent (mens rea) elements: i. intention to touch ii. knowledge, recklessness or wilful blindness about the lack of consent R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 23. [103] The essential elements of the offence of break and enter are set out in s. 348 of the Criminal Code, which states: 348

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, [104] The wrongful act consists of the breaking and entering of a place. The s. 348(1)(

a) offence requires proof of the criminal intent tocommit an indictable offence in the place broken into. No offence need actually be committed in the premises to establish culpability.Under s. 348(1)(b), the external circumstances include the break and entry of a place and the actual commission of an indictable offencetherein. [105] The Crown's proof of the requisite mental element is assisted by the presumption in s. 348(2)(

a) which states: For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he brokeand entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein. [106] Although there is a statutory presumption, the accused person may rebut that presumption by presenting "evidence to thecontrary" through either Crown or Defence witnesses. [107] Section 348(3) defines “place” to mean (

a) a dwelling-house; (

b) a building or structure or any part thereof, other than a dwelling-house; [108]

Section 2 of the Criminal Code defines “dwelling house” as follows: dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, andincludes

(

a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way,and (

b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence; [109] In R. v. Picard, 2018 BCPC 344 , Judge W. Lee held the definition of a dwelling house for the purposes of s. 348 caninclude a tent. He states at para. 29: [29] The decision R. v. Howe, (No. 2), [1983] N.S.J. No. 398 dealt with a break and enter into a tent. The tent was being used by fouroccupants, three of whom were related to the land owner.

In finding that the tent was a dwelling house, the court stated: 16 In my opinion the tent is a unit that is designed to be mobile and it was being used as a temporary residence for the four people whowere sleeping in it and consequently the tent falls within the definition of "dwelling-house" as outlined in s. 2 of the Criminal Code.Section 306(4)(

a) of the Criminal Code states that "for the purposes of this

section 'place' means 'a dwelling house'". I am satisfied thatthe tent was "a place" within the meaning of s. 306 of the Criminal Code. [110] At paras. 16-22 in Picard, Judge Lee goes on to cite the following passages from R. v.

Sappier, 2005 NBPC 37 : [16] However, not every house is a home and the law has recognized that there is a distinction between what, from a physical appearancestandpoint is a home, and what is categorized as such in law. [17] Rather than approach the issue solely from the standpoint of what the structure was intended for, the law obliges that an “in all ofthe circumstances” approach be taken in determining whether the structure is in fact a dwelling-house or kept as such. [18] Thus, a number of factors must be taken into account in determining whether, at the time of an alleged offence, the house inquestion was a dwelling-house.

In R. v. McKerness (1983), (QC CQ), 4 C.C.C. (3d) 233 (Que. Ct of Sessions) GrenierJ. Sess. drew from the Supreme Court decision of R. v. Springman (SCC), [1964] S.C.R. 267; 3 C.C.C. 105 (S.C.C.), anarson case, to assist in determining whether a small counter styled boutique in the middle of a shopping mall was a “place’ for thepurposes of the offence of break and enter under then s. 306(1)(

a) of the Code. In concluding that it was a “place” he relied to someextent on the intention of the builder: “The Springman case also illustrates that the intention which the builder had must also be taken into consideration when decidingwhether the object is a "structure" or "building". The English Court of Appeal, in the case of London County Council v. Pearce, [1892] 2Q.B. 109 at pp. 112-3, wrote the following in this respect: In all cases we must be guided by what I may call the intentions of the structure, and must require with what intention it was made. Thisseems clear from the case of Hall v.

Smallpiece (59 L.J (M.C.) 97), where it was held that a steam roundabout was not a woodenstructure or erection within the meaning of the Act. Why was that held? Not because a thing on wheels cannot be within the section, butbecause when one looks into the intention with which the thing was made, it becomes plain that it was made for the purpose oflocomotion and for erection in any place where it might be required.” [19] However, the intention of the builder often is not dispositive of the issue. That was evident in R. v.

Johnson (SCC), [1977] 2 S.C.R. 646; 34 C.C.C. (2d) 12 (S.C.C.), a case in which the intention of the builder was clear but the status of the houseunder construction still did not achieve the designation “dwelling-house.” The facts were set out by D.A.son J. (as he then was) asfollows: “The accused entered a partly constructed unoccupied dwelling-house at 3:30 a.m. through an open doorway leading into the house froma car-port. The door had not yet been installed.

The owner, as a temporary measure, had nailed a sheet of plywood over the opening, butit would appear that someone had removed it as it was lying on the ground at the time of entry by the accused and a companion. Theaccused was convicted on a charge that he did unlawfully break and enter a place, to wit, a dwelling-house under construction, and didcommit the indictable offence of theft therein.

It was common ground that the building was, by definition a "place" but that it was not adwelling-house.” (emphasis added) [20] While the Court made no finding to the effect that the house was not a dwelling-house in law, it is noteworthy that no issue wastaken with respect to the legal character of the house.

It was accepted as having been a place and not a dwelling-house because, at thetime of the offence, it had not yet attained the legal character of a dwelling-house. [21] If the intention of the builder is not the sole deciding factor used to determine what constitutes a dwelling-house what are the otherdeterminants that figure in that assessment? Traditional, temporary, seasonal or actual use, depending upon the circumstances, mayfigure in the equation.

As well, the strength of the temporal connection between any of these factors and the time of the assessment ofthe character of the house of the offence can also be relevant. [22] The use to which the structure is put very often determines its character. In some cases, very rudimentary housing can qualify as adwelling-house . . . [111] In this case, R.R.C. does not contest V.H.P.’s tent was a dwelling place. Rather he denies he was ever in V.H.P.’s tent on August6, 2018, or at any time, or that he sexually assaulted her.

ASSESSING RELIABILITY AND CREDIBILITY [112] In order to determine liability, I must assess what evidence I find reliable and credible. As Justice Cory commented in R. v. S.(R.D.), (SCC), assessing the credibility of a witness is more of an ‘art than a science’. It is a task that can beparticularly daunting where a court must assess the credibility of two witnesses whose testimony is diametrically opposed.

[113] Determining liability engages a highly contextual, fact-specific exercise requiring me to assess what evidence I find reliable andcredible. Reliability and credibility are not the same. Reliability involves the accuracy of the witness’s testimony. It engagesconsideration of the witness’s ability to observe, recall and recount. Credibility, on the other hand, concerns the veracity of a witness.Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [114] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’s evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent (

f) the witness’s demeanour while testifying, meaning not so much what is said but how it is said. [115] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true. Evidence that is crediblemay nevertheless be unreliable: R. v. H.C., 2009 ONCA 56 at para. 41 citing R. v. Morrissey, (ONCA). ASSESSING REASONABLE DOUBT [116] The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crownto prove the essential elements of the offences charged beyond a reasonable doubt.

Although the standard is not absolute certainty, proofbeyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144. [117] In R. v. W.(D), , the Supreme Court of Canada provided the trial Courts with an analytical framework to assessreasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the conceptof reasonable doubt to issues of credibility. It provides: 1. If I believe the evidence of the accused, I must acquit. 2.

If I do not believe the testimony of the accused but it leaves me in reasonable doubt as to the guilt of the accused, I must acquit. 3. Even though I am not left in doubt by the evidence of the accused, on the basis of the evidence I do accept, I must be convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. 4. If, after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit. R. v. C.W.H., . [118] In W.(D), Cory J. cautions trial judges that an accused’s evidence is not examined in isolation.

Reasonable doubt as to theaccused’s evidence must be determined “in the context of the evidence as a whole.” When assessing R.R.C.’s evidence, I must considerit in light of the evidence of all the witnesses, including that of the complainant, V.H.P.: R. v. J.J.R.D., (ON CA),leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69. [119] In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord differentweight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

ASSESSING THE RELIABILITY OF THE WITNESSES [120] I accept all the witnesses who appeared before me had the capacity to observe, recall and recount the events to which theytestified; however, this does not mean that I accept they always did so accurately or truthfully. [121] The evidence indicates that B.G.J., C.G. and S.P.’s had been up until the early hours of the morning drinking at the time of theincident giving rise to the charges before the court.

Still, even though M.P. describes them as being loud, there is no suggestion thesewitnesses were so intoxicated they could not remember the event. [122] One of the reasons police officers endeavour to take statements as soon as possible after an alleged offence is to record thewitnesses’ recollection of the event while their memory is still fresh. It is generally accepted that memories fade with the passage oftime, particularly with respect to peripheral details.

Also, after a while, a witness’s recollection of events can become cross-pollinated or“tainted” with the evidence of others with whom they have discussed the incident. A recorded statement taken shortly after the event is avaluable aide memoire to a witness who may be testifying at trial a year or more after the alleged offence. In this case none of thewitnesses were interviewed immediately after the incident.

V.H.P. made her complaint to Constable Goble on August 17, 2018, 11 dayslater, which I do not consider a significant delay. [123] Constable Fennema took statements from T.G., C.G. and B.G.J., 11 weeks after the incident, from S.P., three months after theincident, and from M.P. and J.B. on the first day of trial, over a year after the incident. I accept that in some instances, the witness’smemory of the peripheral details of the event were likely clouded by the passage of time. ASSESSING THE CREDIBILITY OF THE EVIDENCE OF R.R.C. (

a) the plausibility of the R.R.C.’s evidence [124] I found nothing implausible about R.R.C.’s defence. He was extremely busy helping out with O.F. Days and karaoke. His dayended at 3:30 am on August 6, 2018, after helping C.P.H. dismantle the karaoke system. He walked back to D.A.’s cabin, where he wasstaying. It only took a few minutes. He was exhausted and went to bed at about 3:40 am and did not wake up until 8:00 am. He did not gointo V.H.P.’s tent or sexually assault her. [125] The Crown suggests R.R.C.’s evidence he did not know V.H.P. was living in the tent on the P. side is unbelievable. I am not sosure.

I am left with the impression the families on the P. side and A. side had very little to do with one another. I find it likely thatV.H.P., as an [omitted for publication] Nation elected official representing O.F., was far more attuned to what was happening in O.F.

than a seasonable labourer like R.R.C. Even M.P., who worked as a supervisor at O.F., said he didn’t go across to the “other side” and hedid not know how many people were staying there. [126] R.R.C. said V.P. “pops in and out [of O.F.] stays a couple of days or nights - two or three days, maybe more, or longer.” Heconsidered her his supervisor’s supervisor, and it was not him but rather R.A. who regularly interacted with V.H.P. on O.F. business.V.H.P. testified that prior to the August 5, 2018 incident, she had never been alone with R.R.C.

She never invited him to come into hertent, in fact, she would have never given anyone permission to come into her tent. It does not logically follow that because V.H.P. hadincidental contact with him at a team meeting or in the community that R.R.C. knew where she was sleeping. [127] I accept R.R.C.’s evidence that his attendance at the P. side to interact with the V.P. family was generally at the instance of R.A.or M.A. R.R.C. was expected to work on O.F. Days, assisting the residents and helping out with the evening entertainment. As R.R.C.testified, he had no time to fish himself during O.F. Days. (

b) any independent supporting or contradicting evidence [128] R.R.C.’s role in assisting with karaoke is supported by C.P.H. The fact there was karaoke or music ongoing on the evening of theoffence is corroborated by those witnesses who remember R.R.C. coming to the V.P. campfire on August 5, 2018, to invite people to theA. side for karaoke that evening. J.B. and B.G.J. confirmed the people on the P. side that evening could hear karaoke music comingfrom the A. side.

R.R.C.’s evidence in this regard is further corroborated by V.H.P., M.P. and S.P., who recall hearing music emanatingfrom the A. side at the time of the offence. There is no evidence to suggest there were sources of music other than that provided byC.P.H. Also, there is no evidence of music being played on the P. side.

In fact, R.R.C. testified the V.P. family didn’t play music out ofrespect for E.G. [129] R.R.C.’s evidence there was karaoke on Friday and Sunday nights was somewhat contradicted by C.P.H. who initially thoughtthe karaoke was Friday and Saturday nights, but then conceded it might have been on Sunday. V.H.P. confirmed there was ananniversary dinner for B.M.P. on the Saturday night which supports R.R.C.’s evidence there was no karaoke on Saturday.

I find thepreponderance of the evidence establishes there was karaoke on Sunday, August 6, 2018. [130] R.R.C.’s evidence as to when he went to the V.P. campfire to invite people to karaoke on August 5, 2018, and who were presentat that campfire, was contradicted in part by T.G., M.P. and V.H.P. T.G. said she was never at the V.P. campfire in the evening ofAugust 5, 2018. M.P. said he remembered R.R.C. coming to the V.P. campfire on a quad that evening to invite people to karaoke.However, M.P. says it was earlier in the evening because he went to bed at 10:30 pm.

M.P. also said he was not drinking that evening.V.H.P. says she too saw R.R.C. arrive at the campfire, but at the time she was sitting with E.G. on the white house porch. As V.H.P.went to bed between 10:30 – 11:00 pm, R.R.C. had to have arrived prior to that time. V.H.P. admits to drinking beer that evening, but notwine.

She says she was not drinking while visiting with E.G. on her white house deck. [131] I prefer the evidence of the Crown witnesses who testified R.R.C. came to the V.P. campfire earlier in the evening than he claims.I also accept T.G.’s evidence she was not present at the campfire on the evening of August 5, 2018, and M.P.’s evidence that he was notdrinking. I also accept V.H.P.’s evidence as to what she had been drinking and when.

I find it unlikely those three witnesses would haveall been mistaken as to when R.R.C. came to the V.P. campfire and whether they were drinking that evening. [132] R.R.C.’s evidence there were three people occupying D.A.’s cabin during O.F. Days, namely, himself, S.A. and E.W., iscontested by M.P. who says he only saw R.R.C. and S.A. on the morning of August 6, 2018. As M.P. did not check the bedroom whereR.R.C. says E.W. was sleeping, I do not consider their evidence contradictory. [133] M.P. said R.R.C. claimed S.A. went over to the P. side earlier that morning. R.R.C. denies this to be the case.

M.P. also says hewent inside D.A.’s cabin the morning of August 6, 2018, which R.C.C. refutes. (

c) the external consistency of R.R.C.’s evidence [134] There is no suggestion that R.R.C. gave any out-of-court statements inconsistent with his evidence at trial. (

d) the internal consistency of R.R.C.’s evidence [135] I do not find R.R.C.’s evidence internally inconsistent. I do find his evidence in cross-examination as to events of Saturday,August 4, 2018, to be somewhat confusing, but I attribute this in part to the Prosecutor seemingly conflating the events of Saturday,August 4, 2018, when R.R.C. delivered an invitation to the V.P. family to attend the anniversary dinner, and Sunday, August 5, 2018,when he invited the V.P. family to karaoke. (

e) the “balance” of R.R.C.’s evidence [136] R.R.C. did not exhibit any significant animus toward V.H.P. or any of the other Crown witnesses. In fact, he seemed somewhatdeflated by the fact he and M.P. are no longer friends as a result of these proceedings. I do find, however, R.R.C. exaggerated the amountof alcohol he observed in the hands of the V.P. family members at their campfire on the evening of August 5, 2018. [137] The Crown submits that in his evidence R.R.C. disingenuously tried to distance himself from V.H.P., suggesting they had little orno interaction.

Although there is some evidence to support this argument, I do not give it much weight. As I have stated previously,V.H.P. was a politician representing O.F. As such, she was understandably interested in its residents and their activities. R.R.C. struckme as primarily interested in what his supervisor, R.A., wanted him to do. Motive to fabricate [138] A witness’ motive to give evidence is a relevant factor in assessing his or her credibility. This raises special concerns where thewitness is an accused because his or her entitlement to the presumption of innocence. In R. v. Laboucan, 2010 SCC 12 , Justice

Charron for the Court stated: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome . . . In R. v. B.(L.) (1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherentdanger in considering the accused’s motive arising from his or her interest in the outcome of the trial.

In an often-quoted passage, shestated as follows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest inthe outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have totestify to answer the case put forward by the prosecution.

However, it cannot be assumed that the accused must lie in order to beacquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth inhis evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie,however, cannot be turned into an assumption that one will occur. (

f) R.R.C.’s demeanour while testifying [139] There is nothing about R.R.C.’s demeanour while testifying which detracts from his credibility. Assessing the credibility of V.H.P.’s evidence (

a) the plausibility of the V.H.P.’s evidence [140] Generally, I find nothing implausible of V.H.P.’s evidence. She says she awoke to find a man in her tent in the throes of sexuallyassaulting her. Her tent, although fastened with zippers, was not otherwise secured. V.H.P. has a serious hearing impairment and does notwear her hearing aids in bed because they interfere with her sleep. [141] Although I do not find it implausible, I doubt V.H.P. clearly recognized R.R.C. as the assailant at the time of the offence.Certainly, she never disclosed his identity to those embarking on a search to find the perpetrator.

I accept as perfectly sensible V.H.P.’sconcern for persons under the influence of alcohol spearheading a campaign of vigilante justice in the middle of the night. I acknowledgethat as a councillor for the [omitted for publication] Nation representing O.F. she would be genuinely concerned about fuelling a conflictbetween the two families. Understandably, she did not want any of her relatives getting in trouble for taking the law into their own hands.Nevertheless, it strikes me V.H.P.’s desire to protect R.R.C.’s identity for that reason would likely be the product of sober calmreflection.

By all accounts V.H.P. was profoundly distressed by the assault. Witnesses who observed her immediately after the incidentdescribed V.H.P. as hysterical, traumatized, distraught, shocked, afraid, scared and frazzled. She was shaking so badly it took her acouple of minutes to tell her family what had happened.

I am sceptical that in her distraught state V.H.P. had the presence of mind todeliberately conceal the perpetrator’s identity in the best interest of the community. [142] I also find it implausible V.H.P. would withhold the identity of the perpetrator when her family members were actively searchingfor him out of concern for the safety of others, including children sleeping in tents. There is no evidence to suggest that V.H.P. attemptedto discourage her family from searching for the perpetrator.

In fact, B.G.J. testified that V.H.P. advised him, S.P. and C.G. what hadtranspired and “that got the ball rolling.” V.H.P. testified that M.P. and B.G.J. were going to all the tents to make sure everyone was safe.It wasn’t until they had completed their search V.H.P. learned she was the only victim. It seems to me that by deliberately withholdingthe identity of the person she knew to be the actual perpetrator, V.H.P. would have increased the risk to the safety and well-being ofother vulnerable people.

She also took the risk the searchers would nab someone who happened to be out and about who was totallyinnocent of the offence. (

b) any independent supporting or contradicting evidence [143] V.H.P.’s evidence she had been a victim of sexual assault by a male intruder is corroborated by all the civilian Crown witnesseswho heard her frightened outcry and observed her distraught condition in the immediate aftermath of the attack. In R. v.

James, 2014SCC 5 , at para 5, the Supreme Court held when assessing the issue of consent, a trial judge ought to consider the complainant’sdistraught condition a short time after the sexual contact. [144] V.H.P.’s claim that R.R.C. was the assailant is contradicted by the fact she, M.P. and S.P. could hear karaoke shortly after theattack. R.R.C. was engaged in helping with the karaoke until it shut down at 3:00 am and then with its disassembly until 3:30 am. Noneof the persons present at the time of the incident say they heard a quad.

This means that if R.R.C. was the assailant, he would have had towalk from the A. side to the P. side and back again while the karaoke was ongoing without C.P.H. noticing what would necessarily havebeen a significant absence. [145] V.H.P.’s claim it was 4:30 am at the time of the attack is contradicted by C.P.H. and R.R.C. who said the karaoke shut down at3:00 am.

If V.H.P., M.P. and S.P. heard karaoke or music emanating from the A. side, it would have been before C.P.H. shut down hissound system at 3:00 am. [146] V.H.P.’s assertion there was sufficient natural light for her to clearly see R.R.C. is contradicted by the other Crown witnesses,namely M.P., T.G., S.P., C.G. and B.G.J., who said it was dark at the time of the incident. All but C.G. said they used flashlights tosearch for the assailant. Even C.G. said when she went to bed in a tent after having searched for the perpetrator it was still dark in thetent.

R.R.C. said he also used a flashlight to make his way back to D.A.’s cabin after karaoke, and M.P. testified he did see a flashlight inthat cabin at the time of his search.

[147] V.H.P.’s evidence that there is daylight in O.F. at 4:30 am in early August is weakly supported by Constable Fennema who sayshe lives in G.I. and habitually gets up at 4:00 am. He testified that by 4:30 am in August, it is “on the verge of getting light.” C.P.H. alsosaid that it was getting toward daylight when he dismantled the karaoke system. With respect to the degree of natural light, I prefer theevidence of those witnesses who were actually present at the time of the incident. [148] V.H.P.’s evidence is inconsistent with the following evidence of other witnesses: a.

M.P., who was in a tent in close proximity to his mother, claims he heard a female screaming, but no words. I understand this tomean he did not hear V.H.P. yell that someone was in her tent nor did he hear her yell R.R.C.’s name; b. V.H.P. says she watched R.R.C. run towards the community hall. She made no mention of him tripping over the fly guy wireon M.P.’s tent and falling; c. M.P. says that his wife S.P. woke him up and told him what had happened. He then went to search out his mother who was bythe campfire.

V.H.P. says when she went to the brown house porch immediately after the incident, M.P. was already there; and d. C.G. testified that she and B.G. first went to the shoreline to look for the perpetrator. The community hall is in the oppositedirection of the shoreline. V.H.P. was aware the family members were searching for the perpetrator. It is inexplicable why she would nothave at least told the searchers the direction in which she saw the perpetrator running. None of these inconsistencies seriously undermine V.H.P.’s credibility. Not all are mutually exclusive.

Even so, witness rarelyexperience or perceive an event identically. Still, the inconsistencies does makes it challenge to reconstruct a cohesive narrative of theevents of that evening. [149] V.H.P. testified that a couple of days after the incident she disclosed to T.G. that it was R.R.C. who had assaulted her. In herdirect examination, T.G. denied speaking to anyone else about the incident after its occurrence.

T.G. was not asked in direct or crossspecifically about any discussions she had with V.H.P. about the identity of her assailant after the evening of the incident. [150] Given the defence’s allegation of post-offence fabrication, I would have thought it relevant to have the Crown witnesses explainexactly what it was V.H.P. did say about the perpetrator’s identity on August 6, 2018. (

c) the external consistency of V.H.P.’s evidence [151] V.H.P.’s assertion she always knew it was R.R.C. in her tent is contradicted by her statement to Dr. Okebie that “an unknownstranger came into her tent at night and wanted to rape her while she was asleep.” In cross-examination, V.H.P. admitted to making thisstatement to Dr. Okebie. She went on to say, “I always knew who did it. I just didn’t want to create trouble within the community.” Whendefence counsel pointed out to her that Dr.

Okebie was not a member of the O.F. community, V.H.P. responded, “He was not a memberof the community, but I didn’t have to tell him anything until I saw the police.” [152] Similarly, V.H.P. did not tell J.B. it was R.R.C. who was in her tent, even though she spent several days with him in G.I. after theincident. J.B. said he asked her the identity of the assailant, and she did not tell him.

J.B. is not indigenous nor a member of hercommunity. [153] V.H.P.’s evidence is also externally inconsistent in that in her August 17, 2018 statement to Constable Goble, she did not say thatshe called out R.R.C.’s name when she saw him in her tent. V.H.P. explains this discrepancy as follows: When I gave my statement, Constable Goble said I didn’t have to give everything because of the fact it was my story. I rememberedwhen I was re-reading my statement, and I wondered why I left it out. I started thinking about it and I remembered why he tripped overthe flap, is because I yelled his name “[R.R.C.]”!

He turned around and looked at me and tripped over the flap. [154] I note that Constable Goble was never asked by the Crown or the defence whether or not she advised V.H.P. that she did not haveto provide all the details of the offence. (

d) the internal consistency of V.H.P.’s evidence [155] V.H.P.’s evidence was generally internally consistent as between her evidence in direct examination and cross examination. (

e) the “balance” of V.H.P.’s evidence [156] There is nothing in V.H.P.’s evidence to suggest she had any motive to fabricate evidence against R.R.C. There is no indicationshe held any particular animus against R.R.C. [157] Although I find no evidence of V.H.P. having a motive to fabricate allegations against R.R.C., I am mindful that R.R.C. bears noburden to prove she did have such a motive. Moreover, the absence of evidence of a demonstrated motive to fabricate is distinct fromaffirmative proof of no motive to fabricate: R. v. O.M., 2014 ONCA 503, para. 108. In R. v.

L.(L.), 2009 ONCA 413 , at para.44, Simmons, JJ.A., at para. 44, citing R. v. B.(R.W.) (1993), 24 B.C.A.C. 1 (C.A.), stated: “it does not logically follow that becausethere is no apparent reason for a witness to lie, the witness must be telling the truth.” [158] The fact that V.H.P. did not disclose the name of her assailant at the earliest opportunity or provide Constable Goble with all thedetails of the incident, is not in itself determinative of whether V.H.P. was been truthful when she testified in Court. Such a conclusionrisks reviving the now debunked doctrine of recent complaint. [159] In R. v.

D.D., 2000 SCC 43 , the Supreme Court, held the doctrine of recent complaint in sexual assault cases as aprinciple of law no longer exists in Canada, and a failure to make a timely complaint must not be the subject of an adverse inferencebased upon rejected stereotypical assumptions of how persons react to sexual abuse. In assessing the credibility of a complainant, the

timing of the complaint is simply one circumstance to consider in the factual mosaic of this particular case. (

f) V.H.P.’s demeanour while testifying [ 160 ] There is nothing about V.H.P.’s demeanour while testifying that detracts from her credibility. Assessing the Credibility of the other Civilian Witnesses J.B. [ 161 ] Although I accept that J.B. was attempting to be truthful, I believe the delay in formalizing his statement to the police likely contributed to what I find to be inaccuracies in his evidence. Specifically, I do not accept his evidence R.R.C. was at the V.P. campfire for a couple of hours drinking on the evening of August 5, 2018.

It is contradicted by other witnesses who say R.R.C. was present briefly to invite people to the A. side for karaoke. I accept R.R.C.’s evidence that he doesn’t drink.

Moreover, it would not make sense for R.R.C. to remain at the V.P. campfire for a couple of hours when he tasked with assisting with the karaoke event that was underway on the A. side. [ 162 ] J.B. testified that V.H.P. knew her perpetrator but wasn’t telling anybody because she believes in the law and “she didn’t want anybody getting in trouble by going over there and trying to find him .” I regard this as a little advocacy on J.B.’s part and he was relaying information V.H.P. conveyed to him sometime after they had left O.F. on August 6, 2018.

As such, it runs afoul of the rule against prior consistent statement, and in any event does not assist the court in its truth seeking function. C.G. [ 163 ] Although her memory of the peripheral details of the events in the early morning of August 6, 2018, are vague, I found C.G. was attempting to be truthful about what she did recall. With respect to her evidence she did not believe the searchers used flashlights, I prefer the evidence of those who said they did.

She was not unequivocal on this point, and other witnesses, most notably M.P. and T.G., who had not been drinking and had gone to bed early that night testified they did use flash lights in the course of their search. Moreover, C.G. did say it was dark at the time of the incident and shortly thereafter when she went to bed in her tent. T.G. [ 164 ] I found T.G. a truthful and reliable witness and I accept her evidence as accurate to the extent of her recollection. B.G.J. [ 165 ] B.G.J.’s memory of peripheral details of the incident was also vague.

Nevertheless, I generally consider him a truthful and relatively reliable witness to the extent of his recollection, except as to the time of the incident. Neither the Crown nor defence pressed B.G.J. on why he believed it was 4:30 am at the time of the incident. I do not consider this bald assertion of the time corroborative of V.H.P.’s evidence the offence occurred at 4:30 am. S.P. [ 166 ] I found S.P. a truthful witness whose memory about some of the peripheral matters had obviously faded with the passage of time. M.P. [ 167 ] M.P. did not provide a statement to the police until a year after the incident.

There are aspects of his evidence which I find inconsistent with or contradicted by the evidence of others. Unfortunately, it is not readily apparent whose version was correct, if either. For example: a. M.P. said he went to bed at 10:30 on August 5, 2018, and he had not been drinking at the campfire. R.R.C. said M.P. had a beer in his hand when he arrived around midnight to invite the V.P. family over for karaoke. I accept M.P.’s evidence in this regard over that of R.R.C.; b. M.P. said that after he heard the screaming he went to speak to his mother who was by the campfire near the brown house.

The evidence of the other witnesses present at the time of the offence indicate they and V.H.P. were on the porch of the brown house immediately after the incident. As to this inconsistency, I accept that V.H.P. was on the porch as opposed to sitting by the campfire; c. M.P. says his mother provided a description of the assailant to him and others present at the time. He says V.H.P. did not name her assailant but described him as having a medium build and wearing a big fluffy jacket. He said one of the persons present when V.H.P. provided this information was J.B.

J.B. did not see V.H.P. from the time she went to bed until 6:00 am the following morning. Moreover, no other witness, including V.H.P., corroborates M.P.’s evidence in this regard. In fact, V.H.P. says she did not provide M.P. with a description of her assailant or the fact he was wearing a bomber jacket. J.B., B.G.J. and C.G. all testified V.H.P. did not provide a description of her assailant. I conclude that V.H.P. did not describe her perpetrator as a medium built man wearing a bomber jacket to the others in the immediate aftermath of the offence; d. M.P. testified he conducted a search by himself.

This is contradicted by the evidence of all others present at the time of the incident, including T.G., who had also gone to bed early and had not been drinking. I prefer the evidence of the other Crown witnesses who say they participated in the search for the perpetrator; e. M.P. testified he heard someone running behind his tent so that is the area he went to look. B.G.J. said the first place that he and M.P. searched for the perpetrator was in V.H.P.’s tent. It seems odd they would do this if M.P. believed the perpetrator had ran away.

I do, however, accept M.P.’s evidence as to the runner tripping over his guy wire securing his tent’s rain fly;

f. M.P.’s tent was in close proximity to his mother’s. M.P. testified he heard someone trip over his fly guy wire and fall. V.H.P.says she watched R.R.C. run out of her tent towards the community hall. She made no mention of R.R.C. tripping and falling near M.P.’stent. I do not believe V.H.P. clearly saw the perpetrator either in her tent or running away from her tent. As indicated above, I acceptM.P.’s evidence of a runner tripping over the guy wire to his tent; g. M.P. says when he encountered R.R.C. the following day he was wearing a blue bomber jacket but could not rememberwhether it was light or dark blue.

R.R.C. claims he was wearing his work jacket that he had on in court and it was not a blue bomberjacket. Although I have no reason to believe M.P. fabricated this evidence, I don’t know who to believe about what sort of jacket R.R.C.was wearing on August 6, 2018; and h.

Similarly, I do not know who to believe about M.P.’s contested evidence that R.R.C. claimed it was S.A. who had gone over tothe P. side in the early morning of August 6, 2018, or that he went inside D.A.’s cabin to speak with S.A. [168] M.P. stated that he had a feeling his mother knew more about her assailant but didn’t want to divulge that information to him.M.P. did not explain what is was that V.H.P. said to lead him to believe she was withholding information about the assailant.

I find itdifficult to accept that four or five people went out searching for an unknown assailant in the middle of the night when they suspectedV.H.P. knew who it was and could have told them who they were looking for. This is reinforced in light of the family’s pressing concernfor the safety and well-being of children and others in tents who also vulnerable to an assault. [169] I had some difficulty making sense of when or even if M.P. considered R.R.C. the perpetrator. M.P. says that after he spoke toR.R.C., S.A., R.A. and others, he concluded what he could.

I would have thought that if M.P. had evidence which would help identify hismother’s assailant he would have provided that information to the police long before the first day of trial, which was a year after theoffence. This is particularly so given his wife, S.P., provided a statement to police on November 2, 2018. [170] It is also somewhat murky as to what conversations M.P. had with V.H.P. after the incident. The defence suggested to V.H.P. incross-examination that she concluded the perpetrator was R.R.C. because the perpetrator wore a bomber jacket and M.P. told her R.R.C.had a bomber jacket.

V.H.P. denied this to be the case. C.P.H. [171] I found C.P.H. to be an unbiased witness, however, his specific memory of the 2018 O.F. Days was likely compromised by thepassage of time. I accept his evidence that he hosted the karaoke event on Thursday and Friday; however, I prefer the evidence of thewitnesses who testified there was a karaoke event on Sunday rather than Saturday as C.P.H. first assumed.

Also, I prefer the evidence ofthe witnesses, including R.R.C., who testified he quadded to the V.P. campfire on the evening of August 5, 2018 and invited the V.P.family to the A. side for karaoke. [172] I do not accept C.P.H.’s impression that between 3:00 am and 3:30 am when he was dismantling the sound equipment, it wasgetting daylight. R.R.C. said they left on the lights in order to take down the equipment. All of the Crown witnesses save for V.H.P.testified it was dark at the time of the offence, which would have been even later than when C.P.H. and R.R.C. took down the karaokeequipment.

Assessing the Credibility of the POLICE OFFICERS [173] There is nothing about the RCMP constables’ testimony which gives me concern as to the veracity of their evidence. They wereprofessional witnesses testifying to their involvement in the investigation of the offence after the fact. Having said that, I do find itunfortunate the investigating officers took no photographs of the crime scene and delayed taking statements from key witnesses. ANALYSIS [174] The salient issue in this case is whether V.H.P. recognized her assailant.

Recognition evidence is distinct from identificationevidence: R. v Downey, 2018 NSCA 33 . In R. v. Bob, 2008 BCCA 485 , Neilson, J.A., writing for a unanimous courtsaid [citations omitted]: [13] … this was a case of recognition, rather than identification. There is a significant difference between cases in which a witness isasked to identify a stranger never seen by him before the offence, and cases in which a witness recognizes a person previously known toher.

While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generallyconsidered to be more reliable and to carry more weight than identification evidence: . . . [175] I have no doubt V.H.P. would recognize R.R.C. if she had in fact seen him clearly. The defence argues that V.H.P. did notrecognize her assailant at the time because it was too dark. [176] The Crown witnesses provided little detail on what it is that V.H.P. actually said to them about the perpetrator in the immediateaftermath of the incidence.

This evidence would be an exception to the prohibition against

[…]