R. v. J.A.S., 2020 BCPC 89

Citation: R. v. J.A.S. 2020 BCPC 89 Date: 20200130 File No: 34183 Registry: Dawson Creek IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.S. BAN ON PUBLICATION 486.4(2) CCC ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.A. DALEY Counsel for the Crown: T. Golinsky Counsel for the Defendant: N. Bauder Place of Hearing: Dawson Creek , B.C. Dates of Hearing: February 13, 14, May 15, 16, June 17, and November 13, 14, 2019 Date of Judgment: January 30, 2020 [ 1 ] These are my oral reasons for judgment in R. v. J.A.S . , Dawson Creek Registry File 34183-1.

[ 2 ] Inasmuch as this is an oral decision, I reserve the right to make editorial corrections, but any such changes would not affect the substance of what I am about to read in open court. [ 3 ] I shall use the given names of the witnesses, but if the reasons are transcribed, I direct that the complainant be identified only as R.T., but for the purposes of my oral reasons, I will also refer to J.A.S. as the defendant and to R.T. as the complainant or I will use adjectives such as he or she, as make sense contextually. [ 4 ] Having heard testimony from both Crown and defence, it is not disputed that the acts alleged to have been committed would have occurred when the complainant was 15 years old and the defendant was 30 or 31 years old. [ 5 ] The defendant faces the following charges: Count 1, on or between April 30, 2014, and the 30th day of April, 2016, at or near [omitted for publication], in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of R.T., a person under the age of sixteen years, contrary to s. 151 of the Criminal Code .

Count 2 is the same time, same place, that the defendant is charged with, for a sexual purpose, invite, counsel, or incite R.T., a person under the age of 16 years, to touch, directly or indirectly, with a part of her body, the body of J.A.S., contrary to s. 152 of the Criminal Code . And the third count, the same time, same place, the defendant is charged with having committed and sexually assaulting R.T., contrary to s. 271 of the Criminal Code . [ 6 ] The information was sworn on February 9, 2018.

The significance of the ages of the complainant and the defendant, the complainant being 15 and the defendant being at least 30, is that the defendant is unable to avail himself of the defence that the complainant consented to the sexual acts alleged in the information: see s. 150.1(2.1) of the Code . [ 7 ] At the time of the alleged acts, the defendant and the complainant were living in a residence owned and occupied by A.P., more commonly known as C.P. Each occupied a separate bedroom on the main floor. C.P. was "a close friend" of the defendant, as well as in a stepfather relationship to the complainant.

The Crown alleges that during the time that both the complainant and the defendant were residing at C.P.'s residence, there was a particular evening when the defendant encouraged the complainant to drink alcohol. The defendant, the Crown alleges, then persuaded the complainant to come to his bedroom and coaxed or cajoled her to manually stimulate his penis and to fellate him. The Crown does not allege that the defendant used or applied any physical force. [ 8 ] The defendant denies that the complainant was ever in his bedroom and testified that the charges are false. CASE FOR CROWN

Summary Of The Testimony Of The Complainant [ 9 ] The complainant's date of birth is [omitted for publication], 1999. She testified on February 13, 2019, and again on June 17, 2019. C.P. is her stepfather.

C.P. and her mother separated, but C.P. made an effort to keep in contact with the complainant. [ 10 ] The complainant moved to C.P.'s residence because she was having problems in her relationship with her mother, due to her not wanting to attend school, acting out, and underage drinking, and that behaviour, she also confirmed, continued and increased even at certain times when she was living at C.P.'s residence. [ 11 ] The complainant recalls an incident with the defendant which happened about one month before she moved out of C.P.'s house.

When asked to recall when the incident happened and when she moved out of C.P.'s house, she recalled her 16th birthday was [omitted for publication], 2015, and that she had moved out of C.P.'s residence before her 16th birthday. C.P.'s house is in [omitted for publication], British Columbia. He had other persons who lived there when the complainant moved in, namely T.A. and C.B. C.P. and T.A. lived downstairs, while the complainant, the defendant, and C.B. had their own bedrooms upstairs. The complainant's bedroom was in the middle and the defendant's bedroom was on the north side of the house.

The complainant thought that the defendant was living at C.P.'s before she moved in, and the defendant and C.P. were good friends. [ 12 ] The complainant said that she had a positive impression of the defendant in the following way. She described him as a "very well put together man," that he treated her nicely, he treated her as an adult, and that he would occasionally give her a cigarette if she asked. She testified that an incident happened sometime in January 2015.

Prior to the incident, the complainant had begun to have chats and conversations with the defendant and felt close to him. [ 13 ] On the day of the incident, the complainant arrived home at about 3:00 p.m. after school, and the defendant arrived home a few hours later. She asked the defendant for a smoke and both went outside for a smoke, and to talk before watching TV in the living room for some hours. At some point, the defendant produced some wine, a light and fruity-tasting brand called Barefoot.

Between the two, that is the complainant and the defendant, she testified that four bottles of wine were consumed and the complainant said she had not drunk wine before. [ 14 ] After consuming the wine, the complainant said she felt tipsy and disoriented, had trouble talking, could not walk straight, and was tripping over furniture. She said that she informed the defendant how she felt, but that he had observed to her that wine would not make her drunk because it has a low alcohol content. [ 15 ] The defendant, she testified, then invited her to watch movies in his bedroom.

They sat on his bed as the movie played, but were more focused in talking to each other. They continued to drink wine. While they were eating nachos, the complainant testified the defendant threw a nacho that landed in her cleavage and he made a light remark that her chest was quite big and that he was a good aim.

[ 16 ] At about 1:00 a.m., the complainant's stepfather, C.P., knocked on the defendant's door and said he had seen wine bottles in the kitchen and the living room. She said that her stepfather, C.P., was not impressed and that C.P. asked the complainant why she was in the defendant's room and why she was drinking.

She testified that she then went to her own room and C.P. went upstairs. [ 17 ] Possibly an hour later, the complainant testified she got a text on her phone from the defendant expressing how much he had enjoyed their conversation, saying how mature she was, and asking her whether she would like to go back to his bedroom to talk. [ 18 ] The complainant went to the defendant's room. The defendant was in bed and the room was dark.

The complainant said that she stood talking in his doorway for a few minutes and then went and sat on the foot of the defendant's bed and moved closer to the head of the bed and sat in the middle. The complainant testified as follows and this is a lengthy extract, it is verbatim from the transcript: A And I remember him asking me if I've ever done anything before, anything like that. He didn't say anything specific, he just motioned towards like if I've ever done anything sexual or anything like that before, which I answered no, I have not. Q Keep going, okay, so -- and then what happens?

A He was laying on his stomach and kinda talking to me with his head facing half off the pillow so he could kinda look at me and talk to me and asked if maybe I was interested in giving a massage. Q Okay, and how did you respond? A I didn't really know and I didn't really say that I wanted to. I felt really awkward and said I don't really know if I want to do that. Q Okay, and then what happened?

A He said that he hopes that I didn't feel pressured and he's not forcing me to do anything and hoped that I was comfortable and said oh it's fine if you want to, I really wouldn't mind if you would give me a massage on my back. Q Okay. Go ahead. A And so I did end up doing that and started up where his neck was, he had had his shirt off, as far as I could see from the covers where they were placed just below the lower back area. And started to give a massage at the top.

Q Are you still sitting sort of [off] the edge of the bed or have you moved on to the bed at all or -- A Yeah, I'm sort of sitting on the edge of the bed, just kinda like this and not really moving up or over and I was not on top of him giving him a massage. Q Okay, so you're indicating you're reaching your two arms out, sort of in front or to the side . . . . . . Q So giving him a massage and you said it started at the neck area, so continue on. A And so I continued and he said it's okay if I keep going and pulled over and massaged [and turned over and massaged] his whole back. Q Okay.

A And I had kinda froze and stopped a little bit and said that I was nervous and I didn't really know what I was doing. Q Okay. A And he said that I don't need to feel nervous, that it was okay and as far as I recall, he kinda grabbed my arm and placed it back on his back. And I had continued on. Q Okay. . . . A And had gotten lower to his lower back area, which were would -- which would be where the buttocks is placed and near the lower back of the butt. Q Okay.

A And I had to move the blankets and I said well, I'm getting kinda low and I don't really want to go any further and your blankets are starting to come off so -- and from what I seen, I had a feeling and I just assumed that like he didn't have any clothing on underneath. Q Okay, all right. So what do you recall happening once you're sort of at his lower back area?

A Again, I got kinda spooked and took my hands off again and said I don't really want to massage there any more. . . . [and continuing with the answer] A And so far as I can remember, he had turned over and said -- and was laying on his back now and facing towards me on the edge of the bed.

Q Okay, and what happened? A Well I said, are you wanting me to massage your front half or I don't really know what you want here. He then said, well, there's things that people like and you don't have to massage if you don't want to, maybe you could kiss down from my neck on my body. Q Okay, is that something that you did? A No, I leaned in and kinda felt really awkward and didn't want to do it and I did say I don't really feel like I should do that, I don't really want to and I don't know exactly how to do that. Q Okay. All right, did you -- something else happen or what happened next?

A Yeah, he said that I could continue massaging instead, then, and so I was giving him massage down his -- the front half of his upper body. Q Okay. A And he said that I could go lower and asked me if I could and I went lower, my hands massaging a little bit further down and had gotten really close to where his belly button was around the private area and I remember him stopping and saying well do you mind if I take off my blankets. Q Okay. A And I didn't really know how to feel about that and kinda shrugged and said well I don't -- I don't know about that. Q Mm hmm.

A And I didn't know if he was fully nude underneath so I kinda stopped and said I was getting very low and very close to his private area so -- Q All right. So did he -- he asked if he could take off the blankets, is that something that he did? . . . A He was nude underneath. . . . Q And what did you see? A Just about everything, I had seen the blankets maybe reached to below the kneecaps where it was now and I could see his penis exposed and everything else. . . . Q What do you remember happening after the blankets were removed?

A He had grabbed just the side of my wrist here -- Q You're indicating your right wrist? A I'm not sure which body –- like, which arm it was but it was on my wrist area and it was really grabbed just kinda saying it's okay, you don't have to be nervous. If you want to keep massaging, you can do that. Q Okay. All right, so what happens? A I had ended up having my hand kinda placed on his penis. Q Okay, and what did you do with your hand when it was on his penis?

A Nothing really, I didn't -- I felt really -- I didn't know what to do and so his hand was over top of mine on top of his penis and he said that I could move it and he kinda guided me to move my hand up and down. Q Okay. A And so I ended up doing that for a little bit there and kinda just went with what he was showing me. Q Okay. What do you recall happening after that or how did things change? A Well we started adjusting how we were sitting in bed and I ended up moving further off the edge into the middle of the bed. Q Okay.

A And as I recall, [J.A.S.] had sat up while I'm pretty sure my hand was still on his penis and started to rub my lower back and close to my butt. And near my shoulders and my hand was still where it was placed.

Q Okay. A And continued to do that with him as well and we're facing each other. Q Okay, has something changed? A Yes, he had stopped touching me and had kinda laid back a little bit in the middle of the bed, kinda sideways and so I was sitting cross legged still facing him, but more of looking down and still having my hand on his penis. Q Are you sitting on the bed still? A Yes. Q Okay, and then what? It's okay. . . . A And he asked me if I had ever or know how to give a blow job. Q Okay. A Which I answered no, 'cause I've never done anything before and this was my first time.

Q Okay and so you said no, you didn't know how, and what happens? A I'm not too sure what actually was said after that but I ended up continuing on with the hand job that I was giving at the moment and he said that I could give him a blow job if I wanted to. Q Okay. A And I ended up leaning over and just kinda looking at him and where my hand was. Q Okay. A And told him that I -- I wasn't comfortable in doing that and I don't know how and don't really know what he's asking me to do. Q Okay.

A And ended up laying down on the bed, kinda on my knees, bent over and had kinda had his hand on his penis and he kinda said well you can just lean in closer a little bit. Q And did you do that? A I -- I did do that, yes. Q Okay, and then what happened? A Then I just, kinda -- it was near my mouth and he still had his hand on his penis and kinda was motioning it towards my mouth. Q Did it end up touching your mouth? A Yes, I actually ended up putting my mouth on it and just kinda sat there and didn't really know what else was gonna happen or what I was supposed to do. . . .

A I had kept going, I had actually ended up actually giving him a blow job while his hand was still there, listening him kinda tell me how to do it. Q Okay. And how does this come to an end or -- A Well he said that he was going to ejaculate and I didn't really know exactly what that was meaning or what was -- how that was going to happen and I still had my mouth around it and ended up spitting all over his penis and groin area and -- because he did ejaculate but it was into my mouth and I didn't know what it was. Q And when that happened, how did you react or what did you do?

A I was very surprised, I spit it out of my mouth and just kinda went -- I don't know what just happened, what you just -- what happened there, what you did. And he said oh well, I'm sorry, I did give warning that I was going to ejaculate. Q Okay. Do you remember him saying anything else about it or -- A Not specific, but what I recall is he said is that I had made a mess -- . . .

A Because I had spit it out on to his groin area and he said he had to clean himself up. Q What else happened or what happened after as you're kind of recovering from what happened there? A I just continued to sit on the bed while he had gotten up and said that he just needed to clean off and get ready for work the next morning. Q Did you stay in his room then or -- A No, I had actually gotten up and actually I said that I need to go to school and I don't feel good and need to go to bed. Then I proceeded to go to my room.

Q Did anything sexual happen between you and [J.A.S.] after what you've described here today? A No. Q Did you and [J.A.S.] ever talk about what happened? A Maybe a couple days after we had talked about it. I think he was driving me to school at the time because I had missed my bus and C.P. at the time was already at work and was already in town, driving to town into work. Q Okay, and what was said, do you recall? A I had brought up how long I had known [J.A.S.] and my age that I am young and if that happened between us and why and I remember him telling me he was sorry.

He -- he didn't know why and I was the only person that he's ever done that with that young. Q Did you and he ever talk about doing it again or anything like that? A I don't really recall but I think he might have said that he wouldn't mind if that happened again. But he wasn't going to ask me to do that. [ 19 ] The complainant testified that she stayed at C.P.'s, her stepfather's, for about one month more and then moved back to live with her mother. She did not tell C.P. about the incident. She did, however, mention an incident to her aunt's boyfriend, R.M.

This was about one year after the incident, and that she told him that she had done something with an older man while she was living with C.P., but did not mention anyone's name, let alone the defendant's name. [ 20 ] She also had told one of her closest friends, R.B. She had spoken to R.B. within a couple of months of the incident. [ 21 ] In 2018, C.P. sent her a text on her phone.

He mentioned he had seen a Facebook post about the defendant, and C.P. wanted to know if something had happened between her and the defendant when both were living at his home. [ 22 ] The complainant was unaware of any Facebook post, but she testified she then took a look at the post. She texted C.P. to say: . . . there were things that happened between me and [J.A.S.], and this is why I did move out of [the] house. [Transcript of February 13, 2019, page 29, lines 42 to 43.] [ 23 ] The complainant, however, did not disclose any details as to what had happened between her and the defendant.

The complainant told C.P. that the Facebook posts, however, were not about her. As far as the complainant knew, it was right after she and C.P. had exchanged telephone texts that C.P. gave a statement to police, and this had the effect of the complainant feeling, in her words, "forced to make my statements at that day after he was done": [Transcript, February 13, 2019, page 30, lines 4 and 5.] [ 24 ] An officer, a Constable Allen, came to the complainant's door and asked her to make a statement.

The complainant's first police statement was given on January 31, 2018, which is within a day or two of C.P.'s police statement. The complainant expanded on her conversation with R.M. in her testimony on February 14, 2019, and again there is a very brief portion of the transcript which I will quote verbatim: Q Okay. How did it come up? What -- why -- what inspired you to confide with him that way? A Actually we just really bonded. We were actually on a job together. I was working with him in construction on helping him build a house, doing sanding and all those kind of things, and we had a very good relationship.

For me, he was an uncle to me. So we ended up talking a lot about a lot of different things, and mostly of something that happened in my life regarding the incident between me and [J.A.S.], which I did not mention his name to [R.M.], but told him that something had happened in my life between me and an adult, and I just needed to vent to a family member. Q So, you -- you didn't tell [R.M.] who this person was? A No, I did not. Q Did you give him any indication of where or when it happened? A Yes. I did tell him that I was living with C.P. at the time.

Q And did you give [R.M.], pardon me, details of what happened or . . .

A No, not really, as I recall. Cross-examination of the complainant [ 25 ] The complainant's mother is C.H. and her biological father, C.W. Her father passed away some three to four years ago from the date of her testimony. The complainant's biological father, the complainant testified, was abusive and he spent time in jail.

The complainant testified that she sought counselling to address the trauma and the resulting anger and sadness that she felt toward her biological father. [ 26 ] The complainant said that she knew that the defendant was a volunteer at the [omitted for publication] Fire Department and that the defendant had a pager sometimes, and that she and, in fact, C.P. on occasion would hear loud transmissions.

The complainant also said that she knew that the defendant volunteered with the [omitted for publication] Search and Rescue, and also worked for a company called [omitted for publication] Service. [ 27 ] The complainant said that she knew the defendant was in a relationship with a T.P. and that T.P. would visit the defendant and often stay overnight at C.P.'s residence.

The complainant said that she and the defendant both on occasion smoked marihuana, and the complainant agreed that she was drinking excessively while she was living at her stepfather's. [ 28 ] The complainant had gotten "blackout drunk", she testified, on one occasion before the incident with the defendant. It was on this prior occasion, she testified, when she was raped. That sexual assault, including penetration, occurred, she testified, at an area just outside of [omitted for publication – Community 2] commonly referred to by locals as "the windmills".

A sexual assault at the windmills took place, as best she could recall, close to New Year's 2015 and perhaps two weeks or so before the incident with the defendant.

The complainant testified that she had told the defendant about the incident and being raped at the windmills, and this conversation had taken place during a 25- to 35-minute drive when she and the defendant were alone in his vehicle. [ 29 ] In a later conversation, the complainant testified the defendant said to the complainant, "I could have been your first" or "I would like to be your first": [transcript, June 17, 2019, page 89, lines 12 to 14.] [ 30 ] She testified that on the day of the incident, C.P. had arrived home at about 5:00 or 6:00 p.m., and C.P. went downstairs.

The complainant said that she was certain that she and the defendant consumed four bottles of wine over a six- to an eight-hour period on the night of the incident. She testified that she had not asked the defendant for wine. She testified that C.P. was upset at her drinking underage but that C.P. may not have noticed how many wine bottles were on the kitchen table.

The complainant testified that she recalls hearing the defendant's pager going off early that morning, perhaps 6:00 to 7:00 a.m., following the incident. [ 31 ] The complainant stated that her memory of the incident is good because the experience was traumatic. The complainant testified that, as best she could recall, the defendant was still living at C.P.'s on January 31, 2015, but the complainant did agree that the defendant may have moved into C.P.'s house as early as November 28, 2014.

Summary of the testimony of C.P. [ 32 ] C.P. testified on February 14, 2019. C.P., as of the date of testimony, was 37 years of age and worked as a courier delivery driver. He testified that the complainant is his stepdaughter from a former relationship with C.H., and he testified that while in a relationship with C.H., he grew close to her daughters, and following the separation with C.H., tried to maintain, as best he could, a relationship with C.H.'s daughters. [ 33 ] C.P. said that he has known the defendant for many years and had become very good friends with the defendant.

He testified that the complainant had a falling out with her mother and had moved into his residence at his house in [omitted for publication], B.C. He testified that while living with him, he and the complainant got along well, but did butt heads over issues related to school. At about the same time, he testified the defendant had a falling out with his wife and came to live with C.P. [ 34 ] In the spring of 2015, C.P. recalls an incident involving the complainant and the defendant, and this was in his testimony of February 14, 2019.

C.P. testified that he came home in the afternoon or evening after work and "everything felt wrong. The air felt wrong." He went to investigate and saw the defendant standing in the doorway of his room with a cup of wine in his hand, and behind him, he could see "little feet hanging off the end of his bed", which C.P. determined was the complainant in the defendant's room. [ 35 ] In response to this situation, C.P. testified that he demanded of the complainant that she leave the defendant's room, telling her, "Do not ever put yourself in this situation.

Do not ever put me in this situation." [ 36 ] C.P. also said that he informed the defendant, "Don't ever put me in this situation again, or yourself. This is not a good situation." [ 37 ] C.P. testified that the complainant was rosy-cheeked, which he took to indicate that the complainant had been drinking.

Afterwards, C.P. testified the complainant went to her room and the defendant went out of the house at some time for a period of time. [ 38 ] Just before the complainant moved out of his house, C.P. testified she had become less open with him and, at one point, the complainant had said to C.P. that he "couldn't possibly understand what she was going through".

In any event, he testified that the complainant moved out within days of that conversation and that, in fact, was one of the last conversations C.P. had with the complainant. [ 39 ] C.P. testified that the defendant also had moved out of his home by the end of the same month that the complainant had moved out.

C.P. testified that the defendant had explained to him that he was moving out because he had found another place to live where he could have his children come over and stay with him. [ 40 ] In mid-January of 2018, C.P. said that he received several texts which were making allegations against the defendant, which

C.P. says, "sent me back to that moment when I walked into my house the three years previous. It was the first thing that came into my mind. So I texted my daughter" and said, and again this is a direct verbatim quote from the transcript: "Look, there's some things going around about J.A.S. In lieu of what's going on, I -- I've asked you for years why you moved out of my house and you've never told me . . . But years have gone by, and in lieu of what's going on with J.A.S., I need to know, just answer me this straight up.

Does it have anything to do with J.A.S. why you moved out of my house?" [ 41 ] In response to that text query, the complainant said that it was because of J.A.S., but that she would need a few days before she could talk further with C.P. So C.P. waited, he testified, one or two days and then reinitiated contact with the complainant, but he testified he was not able to speak with her directly, but he did speak with his former partner, C.H., and that it was C.H. who let him know what had happened.

He continued to testify that after the conversation with C.H., that in the course of C.P. making a delivery to the local RCMP detachment, he was approached by an RCMP member who asked him what did he know about J.A.S. C.P. testified that, "I guess my face gave me away" and the RCMP brought C.P. into a room at the detachment to make a statement to Constable Allen, and this was on January 30, 2018. [ 42 ] During the same period of time, C.P. said he received some texts from the defendant.

One text was asking for a place to stay, to which C.P. said he denied the defendant’s request, and another text where the defendant indicated he was "looking for support". In relation to this text, C.P. said he did not reply. Cross-examination of C.P. [ 43 ] C.P. agreed that it was possible that the defendant had moved into his home in November, on November 28, 2014, and had moved out by the end of January 2015. C.P. asserted that the complainant and the defendant had moved out close or at about the same time.

C.P. said that he thinks that the defendant left the house the same evening that he saw the complainant drinking wine with the defendant, but he does not know why the defendant would have left that evening, and this again is from the transcript, verbatim, as follows: Q For purposes related to employment? A He would generally leave in the morning. Q And return when? A Whenever the job was done. Sometimes the afternoon, sometimes evening. Q Do you know when he would leave for call-outs for fire department or search and rescue? A No.

Q So the evening that you gave evidence about -- your evidence was words to the effect of, "I came home" -- you came home from work, the best way to describe it, you went into the home, everything felt wrong. Air felt wrong. And that you usually took your boots off, but you didn't. Is that correct so far, or words to that effect? A Yeah, 'cause I needed to see what was going on in my home because something felt wrong. Q And that you looked down the T-shaped I guess hallway into your home, correct? A Yeah. Q And that you said you saw J.A.S. standing in his bedroom with a cup in his hand, correct?

A A cup of wine, yes. Q A cup of wine. Okay. And you notice some feet in the bedroom, but you didn't notice [R.T.] at that point, correct? A The only little feet that would be in that room, and knowing that my daughter was home, would be my daughter, considering I said, "Are you in his bedroom?" and she said, "Yes," so yeah, it was my daughter. Q Okay. Because you recognized her voice, obviously? A Well, yeah, I'd recognize -- yeah. Q But you didn't physically observe her there? A She stood up and looked right at me. Q Okay.

And you told her to get the F out of -- A No, after I observed -- or I said, "Are you in his room? Are you drinking?" And then, she said, "Yes." And then, she stood up and I saw the glass of wine in her hand, I saw the glass of wine in his hand, saw her rosy little cheeks, and said, "Don't put yourself in this situation." Q Yeah. A And I told them both that.

Q And did you see her leave his bedroom then? A She left his bedroom after I said, "Get the fuck out of his bedroom," yes. Q And you observed her doing that? A I'm quite sure that she went into her room, yeah. Q Are you -- do you have any doubt with respect to that, sir? A No. I don't think she went right away because she was arguing with me, but she went to her room. Q Okay. She went to her room in your presence, that's what I'm asking. Did you observe that? A Yes. Yeah. Q And she didn't have any problems walking to her bedroom, correct? A No. Q Physical problems?

A Not at that time, but she did have some pretty rosy cheeks. Q Was she able to talk to you okay? Were her words slurred? A They -- well, she was pretty agitated. There -- I think her words were coming out pretty fast, but there may have been actually some slurring because she was trying to backpedal pretty fast there that she hadn't -- that it was okay. But it wasn't okay. Q Aside from the -- the rosy cheeks, you didn't observe any other indicia of severe intoxication, did you? A Well, she wasn't puking everywhere, if that's what you mean. Like severe intoxication, like barely like crawling into her room?

Q Yeah, that drunk. A No. No. She -- she -- she was able to make it to her room, but I'm not -- I'm not a breathalyzer, so I can't really tell you how much she drank or how drunk she was, but she definitely had rosy cheeks. Q Okay. All right. A There was evidence that she was drinking considering that it was in her hand. Q All right. And that was the -- A And I believe the bottle of wine, I'm not -- I'm trying to think, maybe it was an empty bottle, but I'm pretty sure there was a bottle on the dresser, if I remember correctly. Q A bottle on the dresser? A I think there was. Q Okay.

You gave a statement to the police, you recall, January 30th, 2018, correct? A Mm-hmm. Q Okay. And you provided them with an accurate statement? Nothing in that statement has caused you to feel it's inaccurate, correct? A Not -- well, to the best of my knowledge it's accurate, yeah. Q Okay. Did you review your statement before coming to court here today? A Yes, I did. Q You did? A Yeah. Q Okay. When? A Last night. Q Okay. Did you talk to anybody else -- did you talk to [R.T.] before coming into court today about this case? A No.

Q Okay. Have you talked to C.H. about this case before coming into court today? A I'll make it clear, my daughter pretty much doesn't want anything to do with me after this incident, so no, I haven't spoken to my daughter. Q Okay. Didn't need a qualification, but you provided it, I respect that. Thanks. Did you talk to C.H. about this case? A No. Q Okay. Have you talked to anybody aside from Crown counsel about this case before giving your testimony today?

A No. [ 44 ] C.P. firmly denied the suggestion put to him by counsel that he observed the complainant and the defendant drinking wine in the kitchen or the living room area. Again, I quote from portions of the transcript beginning with the following answer by C.P. A No. I didn't see them in the kitchen or the dining room. I saw them in his bedroom. That is the only place that I saw them drinking wine.

Q I'm going to suggest that you -- I'm going to suggest that you didn't express any sort of aggravation towards the situation about them drinking wine, but you did question the fact that she was drinking wine with him. Is that a fair comment? A No, it's not. Q Okay. A I was extremely upset, but I kept my calm and said what I needed to say and made it very clear. Q And I'm going to suggest to you that at no time did you make a comment to the effect of [R.T.] and [J.A.S.] drinking wine was to never happen again. You never made that statement at the time? A Most likely said that, yeah.

I'm pretty sure I said, "This is not happening again. Don't put yourself in this situation." Yeah, I -- I said that. Might not have said it earlier at the moment, but I know I'm -- I know I would have said, "This is not happening again." No, because I did say that because I've said, "Do not put yourself in this situation. Do not put me in this situation again. That is my daughter.

This is my home." And what -- the situation was pretty obvious, that the -- with the drinking and the being alone with him in his bedroom is -- that was the situation. [ 45 ] C.P. was not sure when queried about what time of day the wine incident "happened", but he did say it was after he had returned home from work and he also testified that, as best he could recall, the defendant did leave the house at some time after the wine incident. [ 46 ] C.P. was pretty sure that the defendant did not come downstairs to watch TV with him.

Again quoting from the transcript: Q So my question wasn't about the time period after you observed J.A.S. I'm talking about before he left the house, before J.A.S. left the house, I'm going to suggest to you again that you, him, and T.A. watched TV downstairs in your living room, correct? A No, I don't believe so. I'm pretty sure he was pretty uncomfortable. We didn't really talk. He left. Q So you're saying that he left -- you're aware that he left the house right after the incident as you've described it? A I'm pretty sure he left not long after, yeah.

I don't believe that he came downstairs and we watched TV together. Q Okay. You don't believe, or are you saying you're certain of that, or it was possible? A Oh, I'm pretty certain that he didn't come downstairs because he was -- he was pigeon-toeing around me. He was walking on eggshells around me, feeling pretty uncomfortable. I don't believe that he came downstairs and watched TV with me when he was pretty uncomfortable. Q He just -- he left the -- A I think he stayed -- Q -- he left the building? A -- in his room for a bit and then he left. Q And how do you know that he left?

A Because I heard the door close, and I believe I came upstairs to probably get a glass of water or a snack or something like that and noticed that his boots weren't there, probably. Q Okay. And you noticed that [R.T.] was in her bedroom at that time? A Yeah. Q Did you talk to her?

A I tried to. She didn't really want to talk to me. Q There was a question put to you by my friend, words to the effect of, ever talked to J.A.S. since? And your evidence were words to the effect of, "Oddly enough he contacted me the day of or day after I found out, he called me up, was in hiding for days." Do you recall giving that evidence, or words to the effect? A Yeah. Q Okay. [J.A.S.] did not tell you that he was in hiding, correct? A Yeah. Q You're saying he used the words, he was hiding? A Well - Q In hiding?

A -- I'm not -- I'm not sure if he said he was in hiding, but I know that he -- once things came out on Facebook, he skipped town for about two or three days. Nobody knew where he was. I know that for a fact. And that he said, "I can't come back there. My life is ruined there. I'm done." And then he disappeared and I believe -- yeah, he -- a few days later, type thing, or three days after he was missing type thing, or on the lam, he got ahold of me looking for a place to stay and I told him, "Not happening", and then that's when he I guess skipped town afterwards.

I know they found his van down in Hope, abandoned or something like that. That's all I really know after. Q Okay. He did not use words to the effect -- he did not say that "I'm in hiding." "I'm hiding." He didn't tell you that at any time? A I don't believe he said specifically, "I'm in hiding," but he said, "I -- I can't be there, I can't deal with this," blah-blah-blah, that kind of thing. Q So you agree he didn't say hiding or -- he wasn't hiding or in hiding; he didn't say that to you, correct?

A I don't believe he said it specifically, but you could -- you could very much tell that he was -- he didn't want to be around. [ 47 ] At the conclusion of his cross-examination, C.P. expressed that he was certain that the wine incident he had described had occurred in the defendant's bedroom, and that that bedroom was at the northern end of the house and not in a spare room, although C.P. did acknowledge that at some point during the time that the defendant lived at his home, the defendant did live in the spare room. Testimony of K.L.J. [ 48 ] THE COURT: K.L.J. gave her evidence in Voir Dire Number 1.

The court ruled her testimony to be admissible. In order to place the critical portions of her testimony in context, I am now going to read verbatim the court's ruling on that voir dire application: [1] The court has had an opportunity to hear the evidence of witness [K.L.J.]. The bulk of her testimony was under a voir dire. She testified in essence that at some point in 2015 she had moved to Australia. She met a man, [R.M.], who I am going to refer to as [R]. He is originally from the United Kingdom, but she met him in Australia where he was employed as an electrician in an underground coal line prep plant.

I do not know what that is, but that is what she [told us]. [2] She met the gentleman, [R], in May 2015. In March 2016 she and [R] returned to Canada, where they lived in [omitted for publication] area on a farm. At some point, [R] met the complainant, [R.T.], and he described his relationship with [R.T.] as, in essence, basically being like an uncle. [3] K.L.J. herself has known [R.T.] since [R.T.] was only 12, or I think she was three years old, but knew her better from the point she was 12 or 13 years old. [4] K.L.J. explained that [R.T.] and [R], her significant other, spent much time together.

They shared a number of interests in common, particularly regarding construction, renovations and repairs. [5] She explained that in either late fall, October or November of 2017, [R] had told her that [R.T.] had shared with him that she had been with an older man. What came out, both in direct and cross, that this statement by [R] came about in the context of an argument that was taking place between K.L.J. and [R], the argument having arisen because [R] had shared with K.L.J. that he had asked of [R.T.] whether or not she, K.L.J., had cheated on he, [R], during their relationship.

K.L.J. was understandably quite upset about that and I would even describe her as being indignant, and indicated that if [R] had questions of that type, they really ought to come to her in her capacity as [R.T.]'s niece [sic].

To which [R] responded that in fact he considered himself to be [R.T.]'s confidante and that she had shared many confidences with him, to which K.L.J. replied, "Like what?", to which [R] replied that she, [R.T.], had shared with [R] about an experience with an older man at some time prior to that. [6] The next significant item that happened was that early January 2018, K.L.J. went to the United Kingdom, early to mid- January for about two weeks, returning back home on January the 30th.

During the time she was in United Kingdom, she said that at some point between January 27 and . . . 29 of 2018, she became aware of the Facebook posting which involved suggestions or allegations about J.A.S.

Her evidence was that she had a feeling, a very strong feeling at the time, and she asked [R] specifically who the older man was that he had mentioned to her some time ago when they had had their argument. [R]'s response was that -- my note is that it was "[J], [J], something like that," to which K.L.J. responded, "Was it [J.A.S.] or [J.S.]?", to which [R] replied, "Yes." It was at that point that [R] looked for the first time, as I understood K.L.J.'s evidence, at the Facebook posting and, as I understood her evidence, after looking at the Facebook posting, [R] went on to say, "It was [C.P.]’s mate."

[7] K.L.J. was given a [very] thorough cross-examination, but essentially the evidence she gave in direct was to a large extent really supported and bolstered by a very thorough cross-examination. [8] The issue before me, explained by Crown, is whether the evidence of K.L.J. that [R] had told her that [R.T.] had told him she was with an older man, is that admissible, at least at the threshold level?

In addition, the fact that when K.L.J. was in the United Kingdom, she and [R] had a further conversation where she inquired of [R], "Who was the older man?" to which at the end of the day [R] agreed that it was [J] or [J.A.S.] And lastly the third statement that [R] replied, "It was C.P.'s mate." [9] The test as to whether or not these statements are admissible at this point is, as Crown pointed out, on the principled approach; is it necessary, and is it reliable? I have concluded that both tests have been met.

I do not propose to go into great detail given the very reasonable position taken by defence that they are not really objecting to the admissibility per se , but would certainly have thorough submissions on the weight to be given to this evidence. [10] [R] is no longer in this jurisdiction. There is no other means for his evidence to come before the court.

On the reliability laying of the test, the context in which the disclosures or information from [R] came forward have a very clear ring of truth or authenticity and so I have no difficulty, for the purposes of the voir dire, in admitting three statements as I have just briefly outlined, and I so rule.

And of course it will remain for the question of weight to be canvassed more fully when we get to the submission stage at the conclusion of the trial. [ 49 ] Then there are just some housekeeping incidents where there was a colloquy between counsel and the bench, but I concluded by saying the following: [14] THE COURT: Very well. And I further direct that my conclusion on the voir dire as to these statements which are admissible are directed and hereby become evidence in the trial proper. Thank you for that, [counsel]. Testimony of R.B.

Direct examination of R.B. [ 50 ] R.B. testified on November 13, 2019, that she is now 20 years old and has been friends with the complainant since Grade 1. [ 51 ] R.B. lived in [omitted for publication] for most of 2015 and she knew that the complainant and the defendant were both living at C.P.'s house. She also was aware that the defendant was living in one of the upstairs bedrooms.

She testified that the defendant would occasionally drive both her and the complainant to school on the occasion that they might miss the bus. [ 52 ] She said that she and the complainant would hang out, watch TV, smoke weed, watch movies, and visit their mutual friend Albert who worked at a convenience store.

She said that on one occasion that she could recall the defendant had taken her glasses and that she had to go into the defendant's bedroom to get them, but nothing untoward happened. [ 53 ] In about 2017, she testified that the complainant told her for the first time that something had happened between her and J.A.S. in a bedroom.

She said that the complainant at the time was upset, telling her about the incident, and what the complainant said is that the defendant did something he ought not to have done, but the complainant did not tell R.B. when the incident happened. [ 54 ] R.B. testified that she did not know that the complainant had gone to the police and given a police statement. She also acknowledged that her memory was not good at times, and agreed that her memory had been adversely affected by excessive smoking of marijuana and the fact of her pregnancy.

Cross-examination of R.B. [ 55 ] R.B. testified in cross that she did discuss the incident with the complainant in the summer of 2018 and this had assisted her memory somewhat. R.B. said that she knew about the windmills sexual assault that had happened in New Year's 2015.

R.B. said she was in fact at the windmills at the same time and she observed directly that the complainant was both very drunk and very upset, and that she, R.B., also knew the male involved and that that individual was very well known in the [omitted for publication - Community 2] and local area. [ 56 ] She concluded her testimony in cross by advising that she was first informed of the incident by the complainant when R.B. mentioned the defendant's name.

It is possible, however, R.B. agreed with defence counsel that the complainant may have been referring to the male who had sexually assaulted her at the windmills. CASE FOR DEFENCE Testimony Of Defendant, J.A.S. [ 57 ] The defendant testified on November 13, 2019, that he was 35 years old. He had separated from his wife in late 2014, and he later asked if he could live at C.P.'s house for a short time. He recalls moving into C.P.'s house on November 28, 2014. At that time, the following people were also living in the home: T.A., the complainant, C.B., and C.P.

The defendant said that he was seeing a female companion at the time, and that individual spent occasional nights with him while he was living at C.P.'s residence. [ 58 ] The defendant said that the first bedroom he occupied at C.P.'s was on the north side of the house, but in about mid-January, he relocated to a bedroom at the southern end of the house, which he said had formerly been the spare room, and had done so because he anticipated he would be moving out fairly soon.

The defendant testified that he told C.P. around January 20, 2015, that he would be moving out at the end of January, and explained that he had arranged for new accommodation as of February 1, 2015. The defendant testified he moved out of C.P.'s residence on either January 30 or 31, 2015, to go to a place that had more room and could accommodate his children staying with him overnight.

[ 59 ] The defendant testified that he had been friends with C.P. since as early as 2004, and he had first me the complainant perhaps as early as 2006, and he had met her some years later at a music festival in 2011. The defendant said that he was aware that the complainant was 15 years old. He testified that he tried to help her as he could see that she was struggling and that she was drinking. She was disobeying C.P.

She was being rebellious and she liked to party. [ 60 ] On the night of the alleged incident, January 8, 2015, the defendant testified he got home at about 5:00 p.m., at which time the complainant was already in the home. He testified that he had a bottle of rosé wine which he had opened a couple of days earlier.

He testified that he and the complainant were in the dining or kitchen room area, and that he gave the complainant a six-ounce glass of wine, even though he had some concerns or reservations about allowing her to consume alcohol. [ 61 ] He testified that about 20 minutes later, C.P. came into the kitchen and asked why there were two wine glasses on the table. The defendant told C.P. that he and the complainant were talking, conversing, and that the complainant had asked if she could have some wine.

The defendant testified that C.P. commented that it was a school night and C.P. then went downstairs. [ 62 ] The defendant said that he and the complainant sat in the kitchen area and talked for perhaps up to an hour, and that during that period of time, the complainant consumed, at most, half a glass of wine. [ 63 ] He continued in his testimony in direct to say that he, the defendant, then went downstairs and watched TV with T.A. and C.P. for about two hours, and that he then went to bed.

He testified that he was awoken by his pager at about 11:00 p.m., and that he left quickly to respond to the alert from the [omitted for publication] Fire Department. The defendant testified he was on scene for about 15 minutes or so before being stood down by his supervisor, B.D. The defendant testified that he was home at C.P.'s residence by 1:00 a.m.

Upon his return, he observed that no one else was up and about, and he went to bed and slept in, as he was not scheduled to work on the following day. [ 64 ] A day or so before moving out, the defendant said that he was at C.P.'s residence to get his chequebook in order to pay his new landlord. The defendant said he was very happy to have new accommodation. On that occasion, the complainant was home and he testified that he and the complainant each had one glass of rosé to celebrate the occasion. [ 65 ] The defendant denies that he and the complainant shared four bottles of wine.

He testified that the complainant had only ever been in his bedroom on one occasion and that was simply to retrieve a movie. He testified that he denies any physical contact with the complainant, getting a massage from the complainant, asking for a blowjob or asking the complainant to touch his penis. He denied that the complainant was intoxicated and denied that she was watching a movie in his bedroom at any time. [ 66 ] The defendant stated that he had no contact with the complainant after the one-hour chat before he went downstairs to watch TV for about two hours.

The defendant denies flirting with the complainant. The complainant did mention to him that she had been assaulted and raped at the windmills. The defendant concluded his direct by observing that his impression of the complainant was of a young woman trying to find herself. Cross-examination [ 67 ] Under cross-examination, the defendant maintained that he drank with the complainant on two occasions: January 8, 2015, and just before he moved out. He said that the complainant drank one glass of wine on each occasion.

The defendant testified that he recalled a sense of bonding with the complainant when she asked to go for a drive and the complainant confided to him that she had been sexually assaulted at the windmills. [ 68 ] The defendant agreed that he did permit the complainant to drink a glass of wine on two occasions, and he expressed that on those occasions he was trying to treat the complainant as a young adult who was rapidly coming of age. [ 69 ] He concluded his cross-examination by saying that C.P. is mistaken, namely that the first bedroom occupied by the defendant was at the southern end of C.P.'s home.

Testimony of [omitted for publication] or B.D. Direct examination of B.D. [ 70 ] He was a volunteer with the [omitted for publication] Fire Department in the capacity of a captain as of January 2015. He reviewed an incident report for January 8, 2015. Although that report had not been filled out by him, he was very familiar with its format. [ 71 ] B.D. said that the incident report showed that he and the defendant had both been listed as "firefighters in attendance" on January 8, 2015. The total time elapsed from the alarm time to the end was 92 minutes.

Cross-examination of B.D. [ 72 ] B.D. described the defendant as a very conscientious individual. B.D. did not know if the defendant did in fact attend at the site of the fire or stayed at the fire hall on this occasion. He also explained that the [omitted for publication] Fire Department's alcohol policy is zero tolerance.

A member is not to go to a fire site after consuming any alcohol, but if they have only consumed a few drinks, they can help clean up at the fire hall. [ 73 ] He concluded his cross in observing that it is simply very hard to know if anyone was indeed under the influence of alcohol or had even consumed any alcohol. APPLICABLE LAW [ 74 ] This case, at its heart, revolves around the credibility and the reliability of the complainant and the defendant's respective

testimony. [75] As the Honourable Judge Doherty stated in R. v. Shields (2017 BCPC 395 CanLII): [59] I must have regard to the credibility and reliability of each witness’s evidence . . . [76] A number of cases are cited, in particular a decision of Watt J.A, R. v. C.(H.), 2009 ONCA 56 . Quoting from Watt,J.A.’s decision: [59] . . . Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Anywitness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is nota proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R.(3d) 514, at 526 (C.A.). [60] There are many factors to take into account when assessing a witness’s evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event?

Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on othersources? 5. Was the testimony of the witness reasonable and consistent? Was the witness’s evidence consistent with the other evidence inthe case? 6. Do any of the inconsistencies in the witness’s evidence make their testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail? 7.

Was the witness’s evidence plausible? [77] Sexual assault cases, by their very nature, pose significant difficulties for trial judges. In R. v. Hughes, (BCSC), Justice Romilly summarized as follows: [9] Cases involving charges of sexual assault are very difficult. Although the law in these cases is quite straightforward, the level ofemotion that surrounds them from all sides makes them challenging to adjudicate.

In these kinds of cases, courts must be particularlyvigilant in applying the principles of law on which our system of justice is founded. [10] In this respect, I think that the remarks of Galligan J.A. in R. v. J.(F.E.) (1990), (ON CA), 74 C.R. (3d) 269(Ont.C.A.) are appropriate.

Although that case dealt with sexual abuse of children, I think that his remarks are applicable to any casewhere there is an allegation of a serious and disturbing offence such as sexual assault. [and quoting] Galligan J.A. [as follows]: While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, itwould be horrible for an innocent person to be convicted of it.

For that reason, I think the courts must be vigilant to ensure that the zealto punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction ofthe innocent. [11] Mr. Justice Finlayson in R. v. P.(M.B.) (1992), (ON CA), 13 C.R. (4th) 302 at 313 (Ont.C.A.) articulated asimilar sentiment . . . he emphasized that in their efforts to protect those most deserving of protection, the courts "must not neglect ourtraditional role as protectors of the rights of the accused to a fair trial." There is a risk, as Wood J.A. in R. v.

K.(V.) (1991) ... 18(B.C.C.A.) at 35, that the inappropriate gender-related stereotypical thinking that led to improper assumptions about the credibility ofcomplainants will be replaced by "an equally pernicious set of assumptions about the believability of complainants which would have theeffect of shifting the burden . . . to those accused of such crimes." [78] Although the credibility and reliability of the complainant and the defendant are prominent issues in this case, I cannot and I donot approach this case as a contest as to which of the two I believe.

The defendant enjoys the presumption of innocence and it is the taskof the trial judge to determine if the Crown has proven, beyond a reasonable doubt, each element of the offence. This task requires me toconsider, on the totality of the evidence, whether the Crown has dislodged that burden of proof. [79] Inasmuch as the complainant and the defendant have given conflicting testimony, the law requires me and I so instruct myselfon the basis of the following directions set out in the Supreme Court of Canada in R. v. W.(D.) (SCC), [1991] 1 S.C.R.742 at page 757:

a) if I believe the evidence of the accused, I must acquit;

b) if I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit;

c) even if I am not left in doubt by the evidence of the accused, I must decide whether or not, on the basis of all the evidence Iaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[80] There was a fourth step added in the R. v. H.(C.W.), (BC CA), [1991] B.C.J. No. 2753 (B.C.C.A.) decision,again Mr. Justice Wood, as follows:

d) if, after a careful consideration of all the evidence, I am unable to decide who to believe, I must acquit. [81] I would also note that sexual assault cases have, in the past, often promoted what are now regarded to be sexual stereotypes or,if you will, sexual myths.

The most pernicious and insidious of those stereotypes, or what are often called rape myths, are the following: 1. women often provoke or precipitate sexual assault; 2. women often agree to have sex, but later complain of sexual assault; 3. women say no when they do not necessarily mean no; 4. women who do not want to have sex will physically resist; 5. women of bad character, example those who drink or use drugs, are more likely to consent; 6. women who are sexually assaulted will tell someone immediately; and the last myth 7. a woman scorned is more likely to concoct a false accusation of sexual assault. [82] At the same time, however, the trial judge must be vigilant and endeavour to strike a delicate balance so as to ensure theparamountcy of the presumption of innocence, and to resist cultural and societal pressures that advocate the proposition that allcomplainants in all sexual assault cases should be believed.

At the same time, it must be recognized that those who complain of beingassaulted in this most personal and intimate manner do so at considerable risk and with little to gain personally. [83] Madam Justice L'Heureux-Dubé in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, noted that sexual assault is anoffence that most often goes unreported. In respect of the reliability of such complaints, she wrote at paragraph 171 as follows: The preoccupation of the law with the credibility of the complainant in such cases and the blatant stereotyping of such complainants asuntrustworthy are difficult to comprehend.

As we have seen, sexual assault is the most under-reported of all violent crimes. Even after areport, the police and prosecutors filter out a significant number of the complaints based upon their congruence with rape myth andstereotype. Logically it would seem that the likelihood of false complaints is, in this context, much reduced compared to that for mostcrime. Indeed, there is no evidence to support the contrary. [84] The defendant has proffered as his defence what is sometimes called a flat denial and, as such, it is the easiest defence tofabricate.

However, I note my brother Judge Blake, made the following observation in R. v. E.H.S., 2012 BCPC 450: [45] In the present case, the defence amounts to what is sometimes called a “flat denial”. E.H.S. takes the very straightforward positionthat he simply did not commit the alleged act or acts of wrongdoing. It is important for a court not treat such a defence as somehowillegitimate or as somehow less worthy of the W(

D) form of analysis than other, more complicated types of defence. As the AlbertaCourt of Appeal said in R. v. McIntosh, 2010 ABCA 352 , [2010] AJ 1331 (CA),at paragraph 12, there are no doubt plenty ofsituations in which one might fairly ask “what more can an accused do” than offer a denial under oath and open himself up to cross-examination. That sort of question may be particularly appropriate, it seems to me, when a historical sexual assault is alleged. [85] In the British Columbia Court of Appeal decision, R. v.

P.W., 2004 BCCA 542 the Court made the following observation: . . . the mechanical approach to credibility set out in R. v. W.(D.) . . . may be deferred until the evidence of the Complainant and theAccused can be looked at together and an overall conclusion is reached on the basis of the whole of the evidence. ANALYSIS [86] The defendant demonstrated or professed to demonstrate a prodigious memory and a remarkable eye to detail with respect to anincident alleged to have occurred in January 2015. The defendant testified in November 2019, just two months shy of five years fromJanuary 2015.

The defendant testified, for example, as to the exact date he moved into C.P.'s house, the exact date he moved out, theamount of wine, the exact amount of wine, not more than six ounces, which he says the complainant consumed, as well as remarkabledetails as to the location of furniture and appliances at C.P.'s house on the evening of January 8, 2015. [87] For the most part, there is a paucity of evidence to support or corroborate the accounts of either the defendant or thecomplainant.

One notable exception, however, is the complainant's testimony that the sexual acts she alleges all took place in thedefendant's bedroom located on the north side of the house owned by her stepfather, C.P. [88] The defendant testified that not only were these allegations false, but that the complainant was only ever in his bedroom on thesole occasion she went in to get a movie. [89] C.P.'s testimony, however, is in direct contradiction to the defendant's testimony on this point. C.P. was very certain that it wasin the defendant's bedroom that he caught the complainant drinking.

He remembers "seeing little feet hanging over the end of the bed".He remembers confronting the complainant and the defendant, and telling the complainant to "get the fuck out" of the defendant's room,and telling the defendant to "never put [him] in that position again". C.P. recalls how, after the incident, the defendant either avoided himor walked around "on eggshells" in his presence. [90] C.P. was both a responsive and a careful witness. He readily acknowledged being unsure of dates and times, but he was adamantand unshaken in cross-examination as to what he observed in the defendant's bedroom.

[ 91 ] C.P. rejected unequivocally defence counsel's suggestion that C.P. had, on one occasion, observed the complainant and defendant each having a glass of wine in the dining room or kitchen area. C.P. had not discussed this incident with anyone until January 2018, three years later, when he was accosted by Constable Allen. I found C.P. to be an honest witness who did his utmost to be fair and tempered in his testimony.

He neither embellished nor exaggerated his testimony. [ 92 ] Given the passage of time, I found C.P.'s memory to be understandably vague as regards peripheral details such as precise and exact dates and times, but he has a clear and vivid recall of the circumstances surrounding his having found the complainant and the defendant drinking wine in the defendant's bedroom. [ 93 ] In other words, the complainant and C.P. have, despite barely speaking to each other for almost five years, given an account that places the complainant in the defendant's bedroom with both drinking wine and having been confronted by a very angry and highly upset C.P.

I reject the evidence of the defendant on this point and I find as a fact that on some evening in January 2015, the defendant and the complainant were drinking wine in the defendant's bedroom, where they were confronted by C.P. [ 94 ] Given the significance of this finding, that the complainant and defendant were drinking wine in his bedroom when confronted by C.P., I have determined that the defendant is not a credible witness and I do not believe the evidence of the defendant where it conflicts with the evidence of the complainant. [ 95 ] I also find that the evidence of the defendant, having been rejected as false, does not raise a reasonable doubt in my mind. [ 96 ] Having found that I am not left in doubt by the evidence of J.A.S., I must now decide, on the totality of the evidence, if I am convinced beyond a reasonable doubt of his guilt.

In this regard, I have considered the following factors: 1. The complainant was a candid witness. She acknowledged being uncertain of dates or times or who was in a particular room in C.P.'s house at any given time. 2. The complainant was able to explain any apparent inconsistencies in her police statement and her evidence in court. I found her explanations to be reasonable and there was no element of artifice or disassembly. 3. Her account of what happened in the defendant's room has the ring of truth.

Her testimony, for example, of how she was surprised by and spat out the ejaculate is not something one could easily or readily fabricate. 4. Similarly, her testimony of the defendant telling her that she had "made a mess" by spitting out his ejaculate is not, again, in my respectful opinion, the kind of detail that lends itself to fabrication. 5. There was no hint of animus or spite or even resentment towards the defendant in the complainant's testimony. 6. The complainant did not initiate or come forward on her own with allegations of sexual abuse against the defendant. 7.

It was only after C.P. had given the statement to Constable Allen, and only after she was approached directly by Constable Allen that the complainant provided, reluctantly, a statement to the RCMP. 8. My overall sense, having observed the complainant give her testimony, is that she was extremely reluctant to advance her allegations as to what had transpired between her and the defendant in his bedroom at C.P.'s house. 9. The information that the complainant confided to R.M. is consistent with a 15-year-old girl who had experienced a traumatic sexual experience such as she recounted in her testimony. 10.

Similarly, the testimony of R.B. is very clear that the complainant confided to R.B. that the defendant had done something to her that he ought not to have done and which occurred in the defendant's bedroom. CONCLUSION [ 97 ] Firstly, I do not believe the denials of the defendant.

He is not a credible witness and it follows that his evidence is inherently unreliable. [ 98 ] Secondly, I find the complainant to be both a credible witness and a reliable witness. [ 99 ] Thirdly, I am not left in reasonable doubt by the evidence of the defendant. [ 100 ] Fourthly, on the basis of the evidence I do accept, the testimony of the complainant, of C.P., K.L.J., and R.B., I am convinced beyond a reasonable doubt that the guilt of the defendant has been proven. [ 101 ] Please stand, J.A.S. J.A.S., I find you guilty on all of the counts, 1, 2, and 3. [REASONS CONCLUDED]