R. v. A.H., 2023 BCPC 131

Citation: R. v. A.H. 2023 BCPC 131 Date: 20230531 File No: 30900-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. A.H. BAN ON PUBLICATION – s. 486.4(1) CCC CORRIGENDUM ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: E. Rines Counsel for the Defendant: L. Fadden

Place of Hearing: Prince Rupert , B.C. Dates of Hearing: April 17, 18, May 30, 31, 2023 Date of Judgment: May 31, 2023 A Corrigendum was released by the Court on February 9, 2024. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] These are my Reasons for Judgment. I reserve the right to order a transcript and edit these Reasons for Judgment to make them grammatically correct or more readable, but the result and substance of my decision will not change. I.

Introduction [ 2 ] The BC Prosecution Service alleges that the then 43-year-old A.H. sexually assaulted the then 18-year-old J.S. on or about September 11, 2020, in Prince Rupert, British Columbia, contrary to s. 271 of the Criminal Code . The prosecution proceeded by way of indictment. The events occurred in British Columbia. Neither the Court's jurisdiction nor the defendant's identification is in issue. [ 3 ] The Court heard from five witnesses during the Trial. The prosecution called three witnesses: the complainant, her mother, L.S., and the then 17-year-old R.H. R.H. is the son of the defendant.

He was also the complainant’s boyfriend at all relevant times. The defence called two witnesses: the defendant and his mother, D.H. [ 4 ] The prosecution alleges that sometime in the late evening of September 11, 2020, or during the morning of September 12, 2020, R.H. and the complainant were sleeping in R.H.’s bed, and the defendant entered R.H.’s bedroom in an intoxicated state. Specifically, the prosecution says that: i.

The complainant woke up to the defendant on top of her and kissing her while he held one hand on the right side of her face, pushing it into the bed, while his other hand went up her shorts and under her shirt, causing the complainant pain. ii. As the sexual assault continued, the defendant touched the complainant's breasts, buttocks, and vagina before inserting his fingers inside her vagina, resulting in the complainant's bleeding. iii. The defendant told the complainant that she was a good girl and that he wishes R.H. never breaks up with her so that she will stay around. iv.

At some point during the sexual assault, R.H. woke up, saw what his father was doing to the complainant, and kicked him out of the bed and his bedroom. The defendant said that he was sorry and rushed out of the bedroom. [ 5 ] The defendant strenuously denies the allegations. He says he did not enter his son’s bedroom on September 11 or 12, 2020, and did not sexually assault the complainant. [ 6 ] The principal issues in this Trial are the credibility and reliability of the witnesses. II.

Legal Backdrop [ 7 ] The first and most important principle of law applicable to every criminal case is the presumption of innocence. The defendant enters the Trial presumed innocent, and the presumption of innocence remains throughout the Trial unless the prosecution satisfies me beyond a reasonable doubt that he is guilty. [ 8 ] Two rules flow from the presumption of innocence: i. The prosecution bears the burden of proving guilt. ii. Guilt must be proved beyond a reasonable doubt.

These rules are inseparably linked with the presumption of innocence to ensure that no innocent person is convicted. [ 9 ] It is important to note that there is no burden on the defendant to prove he is innocent. He does not have to prove anything. The burden of proof rests with the Crown and never shifts. [ 10 ] Reasonable doubt applies to the issue of credibility. On any given point, I may believe a witness, disbelieve a witness, or not be able to decide. I need not fully believe or disbelieve a witness.

If I have a reasonable doubt about the defendant’s guilt arising from the credibility of the witnesses, then I must find him not guilty. [ 11 ] Reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the Trial. Instead, it is based on reason and common sense. A doubt arises logically from the evidence or an absence of evidence. [ 12 ] It is virtually impossible to prove anything with absolute certainty, and the BC Prosecution Service is not required to do so. Such a standard would be impossibly high.

However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than probable guilt. As a result, I must not find the defendant guilty unless I am sure he is guilty. Even if I believe the defendant is probably guilty or likely guilty, that is insufficient.

In those circumstances, I must give the benefit of the doubt to the defendant and find him not guilty because the prosecution has failed to satisfy me of his guilt beyond a reasonable doubt. [ 13 ] Finally, if I have a reasonable doubt about the defendant’s guilt arising from the evidence, the absence of evidence, or the credibility or the reliability of one or more of the witnesses, I must find him not guilty.

[14] In considering the evidence, including the defendant’s testimony, I have contemplated and applied the law and principles set outin the leading decision of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. I have also reminded myself that the determinationof guilt cannot become a credibility contest between the defendant and the complainant.

As a result, i. if I believe the evidence of the defendant denying his guilt, then I must find him not guilty; ii. even if I do not believe the testimony of the defendant, if, after considering his evidence in the context of the evidenceas a whole, it leaves me with a reasonable doubt as to his guilt, I must acquit; iii. even if I am not left in doubt by the defendant’s evidence, if I am not convinced of his guilt beyond a reasonable doubtby the evidence I do accept, I must acquit; iv. if, after considering all of the evidence, I cannot decide who to believe, that means I have a reasonable doubt, and Imust find the defendant not guilty. [15] As urged by defence counsel, I have followed the same formula as I stated in R. v.

V.O.S., 2022 BCPC 182: In considering the evidence, including the accused's testimony at Trial, I have considered and applied the law and principles set out in theleading decision of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. As noted by Justice MacNaughtonin R. v. Chambers, 2021 BCSC 799 (Chambers), at paragraph 154: [154] The W.(D.) framework should not be applied formulaically. As has been repeatedly said, the framework is not a magicalincantation or something to be slavishly followed.

Rather, it is the principles underlying the W.(D.) framework that are important. [155] In his article, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31,David Paciocco, now Justice Paciocco, of the Ontario Court of Appeal, discussed those principles: 1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred. 2. A criminal fact-finder who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused. 3.

Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether thatevidence is true, there is a reasonable doubt and an acquittal must follow. 4. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt. 5. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

I have reminded myself that the determination of guilt cannot become a credibility contest between the accused and the complainant. Ihave considered the accused's evidence in the context of the other admissible evidence presented to the Court during the Trial. As such, Ihave not assessed the accused's or the other witnesses' evidence in isolation and I have been careful not to subject the accused's evidenceto a stricter standard of scrutiny than the complainant's or other witnesses' evidence.

Moreover, I have reminded myself that an accusedperson is never required to prove their innocence or disprove any of the evidence led by the prosecution. Because of the nature of the evidence in the present case, I have identified and kept in the forefront of my mind the two legal rulesconcerning impermissible reasoning related to the plausibility of human behaviour as discussed in R. v. J.C., 2021 ONCA 131: 1. the rule against ungrounded common-sense assumptions; and 2. the rule against stereotypical inferences.

Similarly, I have instructed myself that I cannot use the complainant's lack of embellishment in her testimony to bolster hercredibility, R. v. Gerrard, 2022 SCC 13. [16] In R. v. Taylor, 2021 BCSC 1040, Justice Forth set out the legal principles that applied in cases of alleged sexual assault. Indoing so, she reviewed relevant case law and set out the following: [122] The core elements of a sexual assault charge under s. 271 of the Criminal Code are: the accused touched a complainant, thetouching was of a sexual nature, and the complainant did not consent to the touching: R. v.

Ewanchuk, (SCC), [1999] 1S.C.R. 330 at paras. 25–26. The accused must have intended to touch the complainant and have had the knowledge of, been reckless asto, or was wilfully blind as to the complainant’s lack of consent: Ewanchuk at paras. 41-42. [17] In reviewing the evidence and deciding, I have kept an open mind and carefully considered all the evidence, including exhibits,presented during the Trial. In doing so, I asked myself some basic questions: i. Did the witness seem honest? Is there any reason why the witness would not be telling the truth? ii.

Does the witness have any reason to give evidence more favourable to one side than the other? iii. Was the witness able to make accurate and complete observations about the event? Did they have a good opportunityto do so? What were the circumstances in which the observation was made? What was the condition of the witness? Was the event itselfunusual or routine?

iv. Did the witness seem to have a good memory? Does the witness have any reason to remember the things they testified about? Did any inability or difficulty the witness had in placing events seem genuine, or did it seem made up as an excuse to avoid answering questions? v. Did the witness seem to be reporting what they saw or heard? Or did they put together an account based on information from other sources rather than personal observation or memory? vi. Did the witness’s testimony seem reasonable and consistent? Is it similar or different from what other witnesses said about the same events?

Did the witness say or do something different on an earlier occasion? vii. Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different or because they failed to mention something? Is there any explanation for it? Does the explanation make sense? viii.

While appreciating that giving evidence in a Trial is not a common experience for many people and that people react and appear differently, I asked myself what was the witness’s manner when they testified? III. Discussion [ 18 ] In my review of the evidence as a whole, I found it significant that the complainant and R.H. both agreed in their testimony that: i. The complainant had been working and had just arrived back in Prince Rupert at the time of the alleged sexual assault. ii. On the evening preceding the sexual assault, R.H., the complainant, A. and J. were all hanging out at D.H.’s house drinking alcohol.

The intoxicated defendant came home and an argument ensued between the defendant and R.H. concerning something the defendant said and R.H. took issue with. iii. A. and J. left D.H.’s house due to the argument between R.H. and the defendant. iv. J.S. took R.H. away from the situation to calm him down. They went outside. After R.H. calmed down, they went back to R.H.’s bedroom, chilled, watched a movie, and fell asleep in R.H.’s bed. v. The complainant and R.H. both saw the defendant in R.H.’s bedroom. Moreover, the complainant and R.H. both saw the defendant on top of the complainant. vi.

The complainant and R.H. did not discuss the sexual assault on September 12, 2020. The complainant told R.H. about the sexual assault approximately one and a half months later. vii. There were house rules. They would help do chores like dishes and keeping R.H.’s room clean, albeit not to the standard that D.H. or the defendant wanted. viii.

D.H. kicked them out of her house on February 15, 2021, after a verbal altercation over the telephone with the defendant, in which the complainant confronted the defendant by calling him a rapist. [ 19 ] As pointed out by defence counsel during closing submissions, there were differences in the complainant’s and R.H.’s evidence. For instance, in his evidence, R.H. was confident it was dark in his bedroom when he saw the defendant in his bedroom, while the complainant testified, “It was bright out.

It was the morning time, and the TV was on.” Furthermore, the complainant testified that the defendant spoke to her during the sexual assault, while R.H. did not hear the defendant speak. [ 20 ] Overall, I found the complainant’s testimony to be coherent and believable, despite defence counsel in cross-examination highlighting differences in the complainant’s statement to police from 2021 and her Trial testimony.

Although some may find it strange that the complainant did not discuss the sexual assault with R.H. for six weeks or anyone else until February 15, 2021 – especially in the context of R.H. having been in the bedroom at the time of the alleged sexual assault and that the alleged attacker was R.H.’s father – I am not troubled by the time delay. [ 21 ] In my experience, everyone reacts to trauma differently. Based on my observations of the complainant giving her Trial evidence on April 17 and May 30, 2023, I do not doubt that the events she related to the Court traumatized her. Being sexually assaulted is traumatic.

The rules against ungrounded common-sense assumptions and stereotypical inferences are in place for situations like the present. [ 22 ] R.H., who self-admittedly suffers from short-term memory loss, confirmed that he had not invited the defendant into his bedroom on the morning in question.

R.H. also testified that the defendant, when drunk, would enter his bedroom and steal things: Yeah, like, say he'd come in my room, and then he would maybe like steal alcohol, or he'd maybe steal weed, or just batteries for a remote, or my gaming system 'cause he'd wanna use it. [ 23 ] When confronted with discrepancies between his in-court testimony and his verbal statement to the police in February 2021, R.H. showed his immaturity and became impatient with defence counsel.

Nonetheless, R.H. presented overall as a young man with no axe to grind against his father, the defendant, and was trying to relate the events he recalled from 31 months prior. [ 24 ] I found the defendant's evidence to be straightforward and surprisingly detailed, given the passage of 32 months since the alleged sexual assault and 27 months since the complainant called him a rapist and the matter was reported to the police. His use of exhibits 2 and 3, as well as text messages from friends he says he reviewed after the allegation came to light, gave him a remarkable level of

memory, considering the passing of time. [ 25 ] Even with the assistance of the exhibits and other things used by the defendant to refresh his memory of September 11 and 12, 2020, it is difficult to accept that the defendant was reciting in his testimony what he remembered from memory, as opposed to what he wanted the Court to hear. Cross-examination on several areas of his testimony compounded the problem. For instance, the defendant downplayed his struggles with alcohol abuse over the years and claimed that his memory was not affected by his alcohol consumption.

Remarkably, he also claimed that he could remember the exact number of alcoholic beverages he drank on September 11, 2020, and the three types of Chinese food he ate at home as a late-night meal. [ 26 ] Due to his level of intoxication, I am unsure if the defendant has merely forgotten the events of September 11 and 12, 2020, relating to his interactions with the complainant and R.H. or if he was deliberately untruthful in his testimony.

Regardless, I am unable to believe the testimony of the defendant as to what happened, or rather what did not occur, between the time he arrived home from J.D.’s in the late evening of September 11, 2020, until he left for work on the morning of September 12, 2020. IV. The Facts as Found [ 27 ] In considering the evidence as a whole, I have come to the following conclusions: i. On September 11, 2020, the defendant drove himself to work and later, after allowing his daughter to take his vehicle, got a ride home from work shortly after 6:30 p.m. ii.

On the evening of September 11, 2020, the defendant spent time with his then-partner J.D. and her family before going with J.D. to the [omitted for publication] Pub in Prince Rupert. He consumed one or more beers at the [omitted for publication] Pub over a short period. Sometime after 9 p.m., J.D. and the defendant left [omitted for publication] Pub and went to J.D.’s home, where the defendant continued drinking alcohol, consuming not less than four vodka ice teas. iii.

While the defendant was enjoying his time with J.D., the complainant and R.H. were at D.H.’s house in the [omitted for publication] area of Prince Rupert, where R.H., his brother and sister, plus the defendant, lived with D.H. The complainant, who was employed by [omitted for publication] and had just relocated from [omitted for publication] to Prince Rupert, surprised R.H. by going to his house around 7 p.m. After a trip to the liquor store, R.H. and the complainant had alcoholic drinks with their mutual friends, A. and J., in R.H.’s bedroom. iv.

R.H. and the complainant were having a good time when the intoxicated defendant arrived home late in the evening. v. R.H. and the defendant got into a discussion about abortion, and the debate turned heated. A. and J. left the house while the complainant and R.H. went for a walk to cool R.H. down. vi. After R.H. calmed down, they went back to R.H.’s bedroom, chilled, watched a movie, and fell asleep in R.H.’s bed. vii. Sometime in the morning of September 12, 2020, before 7:45 a.m., the defendant entered R.H.’s bedroom while R.H. and the complainant slept. viii.

The complainant was sleeping on her side, turned away from R.H. The defendant got onto the bed and sexually assaulted the complainant. Specifically, the complainant, wearing pyjama shorts and a sweater, was awakened by the defendant on top of her and kissing her. At the same time, the defendant held one hand on the right side of her face, pushing it into the bed, while his other hand went up her pyjama bottoms and under the sweater she was wearing. ix.

As the sexual assault continued, the defendant touched the complainant's breasts, buttocks, and vagina before inserting his fingers inside her vagina, resulting in the complainant experiencing pain and bleeding. The complainant was frozen in place and unable to react. x. During the sexual assault, the defendant told the complainant that she was a good girl and that he wishes R.H. never breaks up with her so that she will stay around. xi. At some point during the sexual assault, R.H. woke up, saw what his father was doing to the complainant, and kicked him out of the bedroom.

The defendant said that he was sorry and rushed out of the bedroom. xii. At no point did the complainant consent to being touched by the defendant, never mind agreeing to being touched in the manner the defendant sexually assaulted her. xiii. The complainant and R.H. did not discuss the sexual assault until approximately six weeks later. They did not discuss the sexual assault again until February 15, 2021, after D.H. kicked R.H. and the complainant out of her house for failing to do dishes or otherwise assisting with household chores. xiv.

R.H. and the complainant “broke up” in 2021, approximately three months after D.H. kicked them out of her house. V. Decision [ 28 ] After considering the defendant’s testimony in the context of the evidence as a whole, I am not left with a reasonable doubt as to his guilt. Based upon the whole of the evidence, and specifically, the evidence I accept, I am convinced of his guilt beyond a reasonable doubt. I have no trouble preferring the complainant's testimony about what occurred on September 12, 2020. I believe her.

And I believe R.H. that he awoke to his father being in his bedroom uninvited when the complainant was being sexually assaulted. [ 29 ] Based on the facts I have found, I do not doubt that the defendant sexually assaulted the complainant on September 12, 2020. Accordingly, I find A.H. guilty of Count 1 of Prince Rupert Court Information 30900-1.

[ 30 ] Those are my reasons. (REASONS CONCLUDED) CORRIGENDUM - Released February 9, 2024 In the Reasons for Judgment dated May 31, 2023, the following changes have been made: [1] Paragraph 2 should read: The BC Prosecution Service alleges that the then 43-year-old A.H. sexually assaulted the then 18-year-old J.S. on or about September 11, 2020, in Prince Rupert, British Columbia, contrary to s. 271 of the Criminal Code . The prosecution proceeded by way of indictment. The events occurred in British Columbia. Neither the Court's jurisdiction nor the defendant's identification is in issue. ______________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia