R. v. C. L., 2022 BCSC 2494

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. C. L., 2022 BCSC 2494 Date: 20221026 Docket: 35519 Registry: Cranbrook Between: Rex And: C. L. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: The text of the judgment was corrected at the front page and paragraphs 24, 26 and 47 on January 16, 2024.

Before: The Honourable Madam Justice Wilkinson Oral Reasons for Judgment Counsel for the Crown: K. DeJong Counsel for the accused: C. Manucci Place and Date of Trial: Cranbrook, B.C. October 18-20, 2022 Place and Date of Judgment: Cranbrook, B.C. October 26, 2022 [ 1 ] The accused is charged with one count of touching for a sexual purpose his daughter, a person under the age of 16 years, on or about June 30, 2016 to July 2, 2016, at or near Creston, contrary to s. 151 of the Criminal Code, RSC 1985, c C-46 .

The original indictment set out dates in August 2017, however after the close of the evidence of the Crown I amended the indictment under s. 601(2) of the Code to conform to the evidence at trial with regard to the 2016 dates [ 2 ] These are my reasons for judgment after trial of the charge. I have edited them to provide anonymity with respect to the complainant. Undisputed Facts [ 3 ] As the evidence was presented at trial there were a number of undisputed facts from witness testimony.

The complainant is the daughter of the accused. [ 4 ] The accused and the complainant’s mother separated when the complainant was about seven years old. The accused had liberal parenting time with the complainant. By 2016, the complainant was spending every second weekend with the accused as well as many vacations and holidays. [ 5 ] The complainant was 13 years old in June and July 2016.

The accused and complainant took a motorcycle trip at that time with two women, Arlene and Janet, who rode their own motorcycles. [ 6 ] Arlene, the complainant, the complainant’s mother, and the accused all testified at trial. [ 7 ] The complainant rode on the back of the accused’s motorcycle. They were going south from Edmonton through British Columbia to Montana. They stopped the first night, June 30, 2016, in Nordeg, Alberta. They stayed at a hotel where Arlene and Janet shared a room and the accused and complainant shared another room. The accused and complainant each slept in their own bed.

[ 8 ] They rode the next day, July 1, to Creston, British Columbia. On that ride the complainant was “coconutting” with the accused. That is, she was getting tired and her head was dropping forward often causing her helmet to hit the accused’s helmet. [ 9 ] There they all stayed at a house owned by Arlene’s parents. The bikes were washed in town. Arlene doesn’t recall if that happened the day of arrival or the next day. The accused testified the bikes were washed that day and he recalls because he left his motorcycle trunk lock at the car wash. He went back to retrieve and saw it hanging in the closed office.

This meant he could not get into the trunk until he retrieved the key the next day when the wash reopened. Arlene and Janet’s bikes had fallen over and the accused conducted repairs on their bikes when the reached the house. [ 10 ] In the evening the complainant went to bed before the others. She testified, she and the accused were assigned to sleep in the second bedroom on the left of the hallway. Arlene testified that she and Janet shared that room, and the complainant and accused were assigned the first bedroom on the left of the hall.

The accused could not recall to which bedroom he and the complainant were assigned. I do not find this to be a significant discrepancy. It is common ground that the accused and complainant were assigned to share a double or queen sized bed in one of the bedrooms. [ 11 ] It is with regard to the events of the evening of July 1, where the testimony of the complainant and the accused diverges. [ 12 ] The complainant testified in direct that the group arrived around dusk.

They had picked up simple food at a store, took their belongings of the bikes, made up dinner, and after dinner she retrieved and ate cherries from the tree in the back yard. She could not recall details of the night before in Nordeg other than she slept in her own bed some where.

In Creston she recalled details of the bedroom: the bed had a floral printed bedspread, there were 2 side tables with lamps, there was a closet at the foot of the bed, the floor was laminate, and there was a window looking out to the back yard. [ 13 ] She testified that she sat in the living room with everyone talking and eating the cherries. Arlene testified that alcohol was consumed by the adults, including the accused, but not very much.

The complainant testified that she assumed the accused was drinking alcohol as she saw him drink pop in a glass and he normally would not drink it in a glass unless he mixed it with alcohol. She presumed the alcohol would be rum as that is what he usually drank. When asked about the alcohol consumption on cross examination she added that she had seen an empty alcohol bottle in the kitchen in the morning. She could not recall what kind of alcohol.

When asked why this was not mentioned when she gave her statement to police in 2020, she stated that she doesn’t remember much from that night, but that now she remembers the bottle. [ 14 ] Arlene did not know whether the complainant and accused slept in the same bed or room, or whether the accused may have slept on the couch. [ 15 ] It got late and everyone decided to go to bed. Everyone got up and went to bed. She got into bed first and the accused then got in after she did.

Later in her testimony the complainant clarified that she had gone to bed and fallen asleep for a while before the accused came into the bedroom. On cross examination, she further clarified that she was the first person to go to bed. At that time, she was half- awake and tying to get back to sleep. The accused came into the bedroom and took his clothes off. He usually sleeps in his underwear and that is what he kept on. The complainant was wearing her pyjama bottoms and t-shirt. She faced away from the accused and lay on her right side.

He turned off the light that was on in the room and then got into bed and lay on his right side facing towards her and closed his eyes. [ 16 ] The complainant then testified that the accused put his arm around her stomach. She clarified that he put his right arm under her body and then around her stomach and pulled her in toward him.

She testified this did not concern her as it was normal for him to put his arm around her and cuddle her in his sleep. [ 17 ] Then, with his left arm, he reached around, under her shirt and under her pants, and grabbed her left breast for 15 to 30 seconds, then her buttocks cheek for another 15 to 30 seconds, then back to her breast for 15 to 30 seconds then back to her buttock cheek for 15 to 30 seconds again, then again, her breast for 15 to 30 seconds. He touched her bare skin each time. She tried to roll away but his grip was too strong.

His right arms grip relaxed and at that point she was able to crawl away from him on the bed. [ 18 ] The complainant confirmed on cross-examination that the accused has shoulder injuries that make him unable to sleep on his side. He normally sleeps on his back or his stomach. At that point, she clarified that the accused was not fully on his side or shoulder but more on his back when his right arm reached under her and pulled her toward him. [ 19 ] She said she was astounded and didn’t know what to think when the touching took place. Neither said anything after she moved away from him.

She turned around to look at him and his eyes were closed and he was sleeping. She testified that she cried and stayed awake all night. [ 20 ] The complainant clarified that the 15 to 30 seconds was an estimate, it was a guess. On cross examination, she explained that she researched on the internet how to testify in court as a victim and learned that the court would want to know how long the touching occurred and so she just said 15 to 30 seconds. [ 21 ] The complainant testified that in the morning when the sun was up the accused got up and left the room. She eventually got up and proceeded with the day.

On cross examination, she agreed that the accused tried to wake her up and that she was pretending to be asleep at the time. She got up at that point. When they were making up the bed she testified the accused asked her “Did I do anything, if so please tell me”. She testified that she knows the incident happened because he asked her that question. She further testified that she remembers the incident vividly. [ 22 ] After the accused’s question, she did not say anything, testifying that she was scared at the time.

They continued on with their trip and she never mentioned the incident to the accused or anyone else during the trip. She testified that she was then terrified of him but in her head she thought she had to love him. [ 23 ] The complainant could not recall what clothing she and the accused wore other than what they wore to bed.

[ 24 ] The complainant testified she told her best friend at the beginning of school in September, and at some point she told her boyfriend, her current boyfriend, and other friends. She told her mother about the incident in 2020. At the time she told her mother, in early 2020, the complainant and accused had disagreements over her post secondary education plans and her relationship with her boyfriend three years her senior. She felt the accused was being controlling which she did not like.

She testified that her relationship soured with the accused at that time and some of the reason for that was these disagreements. [ 25 ] She and her mother went to her therapist together. She gave a statement to police in July 2020. She testified, she expressed her concern for the accused’s step children with his girlfriend Y., believing she put that in her statement but this information was not concluded in her statements. She also testified that she contacted children’s services about her concern for Y.’s children.

As well, she testified that she asked her mother to contact Y. to make sure the children were safe. [ 26 ] She testified that she, her mother, and T. had lunch with Y. at a restaurant to confirm the timing of the incident. On cross examination, the complainant stated the lunch was at Y.’s home. The meeting was her idea and her mother wanted to go as well. Y. confirmed that she was not dating the accused in 2017. The complainant then realised the trip must have taken place in 2016 and not 2017 as she reported to the police.

Arlene and the accused confirmed in their testimony that the trip took place in June and July 2016. [ 27 ] The complainant’s mother has a different recollection of meeting with Y. She stated that she was not present at the lunch meeting between the complainant and Y.. She also stated that she did not contact Y. first. The thought that accused’s older daughter contacted Y. and then she got in contact with Y. with one of them texting the other. [ 28 ] The complainant testified that she reviewed her police statements again just before the trial, with her mother.

Her mother testified that did not occur. [ 29 ] The complainant’s mother testified that after the 2016 trip, she observed the complainant shows signs of anxiety, weight gain, being confused about her sexuality, cutting herself, and not wanting to spend time with the accused. [ 30 ] On cross-examination, she testified that these issues appeared over a period of time. The weight gain was not significant and really started in 2019. The cutting started in 2018 or 2019, when she was 15 or 16 years old. It was in December 2017, when it started being more of a struggle to get the complainant to visit the accused.

She did not tell the accused about this or about the cutting. They did discuss anxiety, depression, and the counselling the complainant underwent. [ 31 ] The complainant in her testimony did not mention cutting or telling her mother, she didn’t want to see her father during his parenting times. She did testify that she has anxiety and depression. [ 32 ] The accused testified that Arlene and Janet’s bikes fell over after the car wash and on the way to the house in Creston. He also stated he had trouble with his bike starting properly.

When they arrived and started unloading, he realised he left his truck key at the car wash. He and Arlene went back to the car wash and saw his key hanging in the closed office. They went back to the house and the accused testified he started working on the bikes right away. He had to fashion some tools and repaired handlebars, one of the shields and a mirror.

He stated the complainant was in the house with Arlene and Janet during this time, which was about three hours, at least until 10:00pm and he drank coca cola when he was doing the repair work. [ 33 ] The accused testified he did not consume alcohol that evening as he wanted to ensure he repaired the bikes properly and wanted to ensure a safe drive the next day. He stated he does not mix rum with coke as it would keep him up at night. His usual drink is rum on ice. By all accounts he is a safety conscious motorcycle rider and social drinker.

He testified that in 2016 he seldom drank. [ 34 ] He did not see anyone else drinking alcohol and did not see any alcohol bottles. [ 35 ] When he was finished Arlene and Janet came out and tried out their bikes. They were satisfied for the most part although there was a complaint about the shield height. Arlene recalled that issue. [ 36 ] They went into the house and Arlene and Janet said they were going to sleep. He decided to sleep on the couch. The bedroom with the complainant only had a double bed and she had been very tired.

He went into the room to get his bag and when he entered he kicked the bag, not being able to see anything with no light on. The complainant was sleeping soundly as far as he could tell. He did not want to wake her up. He grabbed the bag and left the room. He went back to the couch in the living room and slept with his T-shirt and pants on under an Afghan blanket. He testified that he slept through the night as he was very tired. [ 37 ] He woke up very early as the sun came onto his face due to there being no curtains. He sat up for a while until he heard Arlene and Janet awake in their room.

He then went in to wake up the complainant. He flopped on the bed but she still did not wake up. He then grabbed her shoulder to rouse her and she woke up. He asked her if she had a good sleep as he was concerned about her being properly rested up. She said she was alright. [ 38 ] The accused denies touching the complainant in bed that night. He denies being in the bed with her that night. He was adamant he slept on the couch. He denies asking the complainant if anything happened or whether he did anything. [ 39 ] He testified, he then got up and left the room and went to the kitchen where Arlene was.

They spoke about getting ready to go and going to pick up the key at 8:00am when the car wash opened. He went with Arlene to get the key at that time and told Janet and the complainant where they were going. They retrieved the key and returned to the house. He recalled the complainant having some food at the table. The accused then took a shower and got ready for the day. He had a cup of tea and they loaded the bikes up.

They then left around 9:30am to continue their trip, heading toward the Selkirk Loop. [ 40 ] The accused describes the complainant as his travel partner until she stopped communicating with him in 2020. [ 41 ] The accused testified has never spooned with the complainant. They did often cuddle if they slept in the same bed by her putting her head on his shoulder when he slept on his back. His rotator cups in both shoulders are injured which does not allow him to sleep on

either side of his body. He sleeps on his back or sometimes his stomach. [42] He does not know why the complainant would say he touched her inappropriately. He thinks it may be related to their falling outin early 2020 over school and boyfriend issues. Sexual interference [43] On a charge of sexual interference under s. 151 of the Code, the Crown must prove beyond a reasonable doubt each of thefollowing essential elements:

a) That the complainant was less than sixteen years old at the time. This has been proven.

b) That the accused intentionally touched the complainant, either directly or indirectly; and

c) That the touching was for sexual purpose. [44] Unless I am satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, I must find the accusednot guilty of sexual interference. [45] On the second two elements, the defence denies the touching as alleged took place. The complainant does not allege anyone elsewas present when the touching took place. [46] As alleged, the touching would be touching for a sexual purpose. It was prolonged and repeated groping under the complainant’sclothing of her breast and buttock.

If it did occur as described, I find it would not have been accidental and would be, beyond areasonable doubt, touching for a sexual purpose. There could be no other reasonable explanation for that touching. [47] The accused testified at trial. He has given evidence that he is not guilty of the offence with which he is charged. When a personcharged with an offence testifies, I must assess that evidence as I would assess the testimony of other witnesses. I may accept all, part, ornone of the accused’s evidence. However, in accordance with the direction in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742,the requirement of proof of his guilt beyond a reasonable doubt applies to this situation in the following ways:

a) If I believe the accused’s evidence, I must find him not guilty;

b) If I do not believe the accused’s evidence but it leaves me with a reasonable doubt about his guilt, I must find him not guilty;

c) If I do not know whom to believe, I must find the accused not guilty; or

d) If I do not believe the accused’s evidence and it does not leave me with a reasonable doubt, I must then go on to consider whether, onall of the evidence, the Crown has proven his guilt beyond a reasonable doubt. [48] I am dealing with a sexual offence charge. Experience tells the courts that there is no typical victim, typical assailant, typicalsituation, or typical reaction at the time of an alleged sexual assault or thereafter. I must not reach conclusions based on commonmisconceptions about sexual offences in our society.

The defence tendered a significant amount of evidence showing the continuation ofparenting time, including trips where the accused and complainant slept in the small trailer tent bed while camping. This was notsubmitted, he says, to show the complainant did not act in a way consistent with someone who has been sexually interfered with. Instead,it was submitted to show the number of similar subsequent opportunities for the alleged conduct and the fact that it did not reoccur.

I donot find this evidence of no subsequent inappropriate touching to be relevant to proving whether the incident on July 1 or 2, 2016 tookplace. [49] As well, the complainant and her mother testified to the complainant developing anxiety and depression. The mother testified toweight gain, confused sexuality and cutting in the years after the incident. Again, I do not find this evidence helpful in determiningwhether the touching took place in 2016.

Consideration of this type of evidence of behaviour and experience in the years after theincident may lead me to a consideration that it is somehow more consistent with the injuries and behaviour of an assault survivor thanany other cause. This is the type of consideration that the direction in R v. W. (D.) cautions me to avoid. [50] The complainant’s testimony was generally consistent with the evidence of Arlene, the only independent witness. [51] However, I have concerns with regard to the reliability of her testimony.

At the age of 19, she now recalls details that were notreported in 2020, and some which she states she recently recalled. However, most of those details are peripheral to the significantallegation of interference. [52] It is the details of the circumstances surrounding the touching and the touching itself, and the complainant’s clarifications andchanges in that testimony at trial which concern me the most.

The complainant first testified everyone went to bed at the same time, butthen she stated that she went first, had fallen asleep, and was half asleep when the accused entered the bedroom. [53] The most significant detail is the position of the accused and how he allegedly held the complainant. When confronted with thefact that the accused has shoulder injuries, the complainant changed her testimony to accommodate that fact. He no longer was lying onhis right side, he was then more on his back and pulling her more on top of him in a position, where he was not spooning her and facingtoward her on his right side.

It may in fact have been possible for the accused to have engaged in the touching from this position, but bychanging her testimony it makes it difficult for me to find either version very reliable. [54] There is also the inconsistency between her saying when the accused entered the bedroom and got into bed, she was facing awaythe entire time, and yet she was able to see he had closed his eyes when he reached for her.

[ 55 ] In addition, the complainant was willing to tailor her evidence to support her allegation. She testified that she researched on the internet how to testify as a victim and made up an estimate of 15 to 30 seconds for each touching because she learned that the court would want to hear evidence of a detail like that. This raises credibility concerns. [ 56 ] As well, the complainant changed her testimony regarding the Y. meeting stating it did not take place in a restaurant, which she was earlier very sure of, but instead took place in Y.’s residence.

Although, this is evidence peripheral to the allegation of sexual interference, this meeting was in early 2022, not 2016. The complainant’s memory should be more clear. [ 57 ] The accused’s testimony was also generally consistent with Arlene’s evidence, although she was of the belief that he did have some alcohol with her and Janet. It is common ground that the complainant was tired after the drive that warm summer day. She went to bed before everyone else.

The accused did repair the bikes which, given the repairs required, likely did take a long time. [ 58 ] The accused did not change his testimony in direct or under cross examination. He was not evasive or combative. His description of the small bed size and not wanting to awaken the complainant, choosing instead to sleep on the couch, was very straight forward and consistent. Arlene could not say where he slept or what size the bed was.

If he did wake up before Arlene and Janet he could very well have slept on the couch and Arlene would not have known. [ 59 ] The accused denies asking the complainant about what might have happened. If he did ask the question it would go toward whether he had a guilty mind. The complainant was quite adamant that he did ask that question. He was equally adamant that he did not. [ 60 ] It is not up to the defence to provide an explanation as to why the complainant makes the allegation she does: R. v. Swain , 2021 BCCA 207 at paras. 27-33 .

The crown points out that the early 2020, disagreements about the boyfriend and school plans were not yelling matches or heated arguments. There is nothing to suggest that this would be the motive to fabricate the allegation of sexual interference. [ 61 ] I conclude both the accused's version of events and the complainant’s version of events are plausible. In all of the circumstances and on the evidence before me, this is one of those difficult cases where, ultimately, I do not know whom to believe. [ 62 ] As such I must acquit the accused of the charge. Conclusion [ 63 ] Mr.

L., please stand. [ 64 ] For the reasons I have stated, I find you not guilty of the charge under Count 1 of touching for a sexual purpose, contrary to s. 151 of the Code. [ 65 ] You are free to go. “Wilkinson J.”