R. v. J.S.P. Date:, 2017 BCPC 287

Citation: R. v. J.S.P. Date: 20170620 2017 BCPC 287 File No: 39470-1-K Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.S.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Bakken Counsel for the Defendant: P. Pearson Place of Hearing: Duncan , B.C. Date of Hearing: June 1, 2017 Date of Judgment: June 20, 2017

INTRODUCTION [1] THE COURT: J.S.P. (the "Accused") is charged with an allegation that he committed assault of S.M. (the "Complainant") onor about December 24, 2016, at or near Duncan and Cobble Hill, both in the Province of British Columbia. [2] The Complainant was the sole witness for the Crown, and the Accused was the sole witness for the defence. There was verylittle in the way of corroborating evidence of any kind provided by either Crown or defence.

Hence, the court's determination of theoutcome of this case, and the determination of whether or not Crown has satisfied its burden of proving all the elements of the offencewill turn on the issue of credibility of the only two witnesses. PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT [3] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen, can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [4] Reasonable doubt is not an imaginary or a frivolous doubt, nor is it based on sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. [5] The Crown must prove more than probable guilt; however, reasonable doubt does not involve proof to an absolute certainty,since that would be an impossibly high standard. [6] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. (See R. v.Lifchus, (S.C.C.); [1997] 3 S.C.R. 320, and R. v.

Starr, 2000 SCC 40 ; [2000] 2 S.C.R. 144.) THE W. (D.) FORMULATION [7] I must instruct myself that in the trial of criminal matters, it is not a question of which witness's evidence or version of theevents I believe, but rather whether on the totality of the evidence Crown has proven each essential element of each offence beyond areasonable doubt. [8] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself, andI must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.); [1991] 1 S.C.R. 742,found at paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [9] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6;[2012] PEIJ No. 10 at paragraphs 30-31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a Complainant coupled with disbelief of anaccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken as awhole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at paragraph 18).

Proper application of the third step involves movingthe focus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) onthe criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paragraphs 28-31). The Supreme Court ofCanada recently stated in R. v.

J.H.S., 2008 SCC 30 , at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., atparagraph 7). [10] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J.

No. 2735, adds afourth step to the W.(D.) analysis; namely, if after consideration of all the evidence the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted. [11] Josiah Wood J.A., as he then was, suggested that logically this ought to be second in order in the W.(D.) analysis. [12] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. [13] The lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. (See R.v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.)

[ 14 ] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of the witnesses who provided this conflicting evidence. In doing so, I must weigh all the evidence.

In so weighing the evidence, I may reject or accept some or all of the witness's testimony, after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency. [ 15 ] I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [ 16 ] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson , 2007 BCSC 636 ; see also R. v. Mann ,

(2010) A.J. No. 1094 .) ASSESSING CREDIBILITY AND RELIABILITY OF WITNESSES [ 17 ] As noted above, I have heard evidence that is conflicting on material matters regarding the alleged offence, and, therefore I must assess the credibility and the reliability of those witnesses who have provided this conflicting evidence. In doing so, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness, whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity, whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions; and

c) the accuracy of their observations, their abilities to observe, remember, and communicate accurately. [ 18 ] In the decision of R. v. Cuhna , 2015 BCPC 60 , at paragraphs 5 and 6 , the Honourable Judge Merrick provides a useful review of the factors to be considered when assessing the testimony of a witness from these three perspectives: A.

Truthfulness Relevant factors for truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful, inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of the witness and the attitude and the demeanour of the witness. However, when considering demeanour, it is important to consider all the possible explanation for the witness's attitude, and to be sensitive to individual and cultural factors that may affect demeanour. B.

Objectivity When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness's expectations, the assumptions of unproven fact, or by subsequent events. C. Accuracy Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period of observation and the circumstances of the witness's observations. The reasons for recalling an event and the length of time between witnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability.

Some witnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness. THE EVIDENCE Uncontested Facts [ 19 ] The Complainant is a registered nurse who works at the [omitted for publication] Health Care Centre and resides in [omitted for publication]. [ 20 ] The Accused works in Alberta as an apprentice welder and his work

schedule allows him to return back to his home on a regular basis in the Cowichan Valley located near the Cowichan District Hospital. The Accused's parents reside in Cobble Hill, south of Duncan. [ 21 ] The Complainant and the Accused were in an exclusive, romantic and domestic relationship that has ended. That relationship produced a child, being Child A, age seven months at the time of trial. [ 22 ] At the time of the alleged event, Child A was approximately two months old.

There is no court order or agreement in place regarding guardianship or parenting time of Child A, or about parental responsibilities, but Child A was and is, I presume as at today's date, under the day-to-day care of the Complainant and resides with her. [ 23 ] The Accused had parenting time with Child A from time to time when he was home from Alberta and while the Complainant and the Accused were residing together, all of which preceded the alleged events of December 24, 2016. [ 24 ] The Complainant has two other children who reside with her, namely, Child M, age 8, and Child Aa, age two and a half.

The natural father of those children is B.B. [ 25 ] The Accused and B.B. had an unhappy encounter in the past, wherein B.B. apparently punched the Accused. I understand that their relationship remains quite strained. [ 26 ] The alleged events giving rise to the criminal charges before the Accused occurred on the day and evening of December 24,

2016, and, thus, immediately before Christmas Day. It is conceded by both parties that the Complainant and the Accused had slept in the same room with Child A on the night of December 23, 2016, and that they had lunch together at a local restaurant earlier that same day. [ 27 ] The plan made by the Complainant and the Accused was to take all three children to the Accused's parents' house in Cobble Hill for a Christmas Eve dinner.

That did occur, but what happened on the way there and at the Accused's parents' house is in dispute. [ 28 ] Following the time spent at the residence in Cobble Hill, the Complainant reported certain allegations of assault to the RCMP on the evening of December 24, 2016, which resulted in the arrest of the Accused, his subsequent release, and the charges against him presently before the court. The Complainant provided a statement to the police that same night. [ 29 ] The Complainant also started family court proceedings against the Accused on January 10, 2017, with respect to Child A.

In connection with those proceedings, she has sworn an affidavit (the “Family Court Affidavit”) which, in part, provides a version of events that occurred and gave rise to this criminal charge. She has also attached a copy of the Accused's bail document to that affidavit. The Crown's Case [ 30 ] The Complainant testified that she and the Accused were not together in a committed relationship on December 23 or December 24, 2016.

In her Family Court Affidavit, she deposed that she chose to end that relationship with the Accused in June 2016 when she was pregnant with Child A. [ 31 ] In her cross-examination, she did concede that although she knew the relationship was over, she led the Accused to believe that the relationship would continue, stating that she was uncertain about his reaction if he was told the relationship had ended.

She did seem to indicate that they were “on-again/off-again” with respect to dating, and, again, that she led the Accused to believe that they had, at the least, a dating relationship. [ 32 ] In her viva voce evidence, she denied that her Family Court Affidavit statement was not true insofar that June 2016 was the date that their relationship had ended.

She further disagreed that she misled the police about the date of the ending of her relationship with the Accused. [ 33 ] She testified in cross-examination that the June 2016 end of the relationship date was the time that she was "thinking about the lack of commitment and she told him that things would have to change." I understand from the evidence that the Accused and the Complainant continued to cohabitate after June 2016 and that she obtained her own residence and completed a move out of the Accused's residence around the middle of December 2016 when the Accused was working in Alberta.

She said that he was initially unsupportive of the move but did become supportive of that move at a later period of time. [ 34 ] In her oral testimony, the Complainant testified that the Accused was upset on December 24, 2016, because she had arranged a Christmas Day event that included having all three children together, along with the Accused and B.B. [ 35 ] She testified in her examination-in-chief that she went to the Accused's residence because she wanted him to have the opportunity to share some time with their daughter, Child A. [ 36 ] What she did not mention in examination-in-chief but did admit on cross-examination is that she and Child A had spent the night of December 23, 2016, at the Accused's residence in the master bedroom.

She stated in cross-examination that she was not asked about this information by the police and did not provide this information to the police during her statement, stating that she did not think it was relevant. [ 37 ] She denied that there was any romantic or sexual activity taking place that night or the following morning. In cross- examination, she stated that the Accused tried to convince her to have sex, but she stated she did not want to do so, and they did not.

She testified that she and the Accused did not share a bed together that night, saying that he slept on a separate mattress on the side of the bed.

Child A was in the room with them. [ 38 ] The Complainant says that the Accused became unhappy and angry in the morning of December 24, 2016, when she suggested the arrangements to have the three girls, the Accused and B.B. all spend Christmas morning together. [ 39 ] The Complainant then described a series of events which were given in a somewhat confusing order. [ 40 ] First, she said that the Accused did not want her to leave, so he took away, and would not return, her car keys for the vehicle that she had used to bring herself and Child A to the Accused's residence.

Next, the Complainant said she got her cell phone and was going to call her mother to have her mother come and pick her and Child A up. [ 41 ] In her first recital of the evidence, she described that the Accused picked up her phone and threw it into another room and then closed the bedroom door with her on the outside and Child A inside with the Accused.

She then said that she went to get a butter knife to open the door and was trying to open the locked door, at which point the Accused opened the door. [ 42 ] When she re-summarized her evidence in chief, she said that the Accused opened the door, at which point she went to the bedroom to get her jacket and her phone, which was in the bedroom, and to take Child A with her. [ 43 ] At that point, she says the Accused picked her up and carried her out of the room, threw her phone into another room, and then closed the master bedroom door behind him as he entered back into it with the child in the master bedroom.

She says that she did not consent to the Accused picking her up. [ 44 ] In her police statement, she said that Child A was in her car seat in the master bedroom in an uncertain location. She tried to take the car seat, along with the child, when the Accused grabbed it away and told her to leave. She told the police that there was a

physical scuffle about who was going to have Child A and the car seat but not a physical struggle. [ 45 ] I understand she told the police that it was at that particular point in time that the Accused picked her up and moved her out of the room, closing the door, requiring her to get a butter knife, but further saying she was not sure how the door opened. [ 46 ] In her Family Court Affidavit, she deposed to the effect that after about five minutes of effort she was able to open the door with the butter knife.

As I understand it in her Family Court Affidavit, she was not saying that the Accused opened the door, but rather that she did so. When confronted with this discrepancy, she conceded that she was not sure if the butter knife opened the door. [ 47 ] In her testimony, the Complainant indicated that following the incident whereby the Accused had picked her up and moved her out of the master bedroom without her consent, he then agreed to take her home. [ 48 ] They departed from his residence, but she says that he drove past her house, saying he had to go to Wal-Mart where all three of them entered into the store.

When it became evident to her that he was not going to leave, she picked Child A up out of the car seat and walked home. She then suggested that eventually, after she had contacted the Accused's mother, he agreed to meet her with the vehicle. [ 49 ] She indicated that she had him take her to the post office.

She went on in her examination-in-chief to describe how she dropped off the Accused and later that afternoon went and picked him up around 4:30 p.m. in order to attend the family dinner in Cobble Hill. [ 50 ] Although she did not mention it in her evidence in chief, she did concede on cross-examination that while at the post office she said she discussed with the Accused, and he agreed, to take her to the Superstore location in Duncan for a stated purpose.

The Complainant testified to the effect that this was for the completion of the transfer of the motor vehicle, which they were using, from his name to her name using a transfer form that had been signed by him some time before.

She said that he agreed to this and, further, that he agreed she could amend the date on the form that he had already signed to make it valid for use to complete the transfer and to prevent the necessity of filling out and signing a new form. [ 51 ] She testified that they entered the Superstore and the Accused looked after Child A while she hurried to the ICBC agent's office inside the Superstore just before it was about to close. [ 52 ] In cross-examination, she denied that she had amended the transfer document and completed the transfer of the vehicle without his knowledge, and she denied that her actions amounted to a dishonest act. [ 53 ] In cross-examination, the Complainant was asked about her earlier request of the Accused to complete a tenancy agreement for the period that she was living with him to confirm that she was not in a common-law relationship with him and that she was paying rent, when, in fact, she was not.

This documentation was sought by her to prevent her from having to pay back amounts for possible disallowed child tax credits. [ 54 ] She said that she had raised this with the Accused. She further indicated in her testimony that she, on her own initiative, dropped this request, and it was not based on the refusal of the Accused to provide that form of document.

She denied that she was angered by the Accused's refusal to participate in this scheme. [ 55 ] She confirmed that starting around December 23, 2016, they had again argued about the issues of child support, the father's parenting time, and the lack of a written agreement relating to these issues.

She denied that she was threatening to the Accused about these issues, and, in particular, about family court proceedings, and suggested that it was he who was threatening to her particularly about the family court proceedings. [ 56 ] The Complainant did confirm that she did not tell the Accused that the relationship had come to a complete end in order to give these matters an opportunity of resolving themselves by way of a written agreement. [ 57 ] In her evidence in chief she stated that while she was driving the Accused, who was seated in the front passenger seat with the three girls in the back seat, to Christmas Eve dinner at Cobble Hill, the Accused repeatedly tried to touch her between her legs in an inappropriate manner to which she objected and clearly told him to stop, adding, "I'm not allowing you to do that", and then pushed his hand away.

She testified that this was observed by her eldest daughter from her position in the back seat and that it was upsetting for her daughter and for herself. [ 58 ] She further testified that while at the Accused's parents' house, the Accused was sullen and withdrawn, he threw a pillow at her, and he hit her while in the living room, which she thought was observed by the Accused's mother. [ 59 ] She also testified that during the same evening and while inside the residence, he grabbed her buttocks without her consent while she was holding Child A.

She was not certain if the Accused's mother was able to observe that unwanted contact. [ 60 ] In her Family Court Affidavit, the Complainant apparently deposed that she was grabbed by the Accused in front of his parents but says in her evidence that "in front of his parents" meant that the parents were there in the same room with the parties, but may not have necessarily seen the contact. [ 61 ] She stated that he also followed her outside of the residence and again attempted to grab her buttocks and also her breasts for a brief period of time and without her consent.

She turned and moved away to stop that unwanted contact. [ 62 ] The Complainant deposed in her Family Court Affidavit about the Accused calling her a number of very insulting and derogatory names, including the use of the word "slut" during the Christmas Eve family get-together while his parents were there. In cross-examination, she testified that this did, in fact, occur. [ 63 ] In her Family Court Affidavit, she apparently also deposed that she stated in front of his parents that it was not appropriate for the Accused to touch her.

[ 64 ] She testified that she left the Cobble Hill residence with the three children, drove home, and called the police. She stated that her intention in calling the police was because she thought the police would tell him not to touch her. She further stated that the subsequent arrest of the Accused and his being placed on bail conditions was not what she wanted to occur. [ 65 ] She denied that she struck the Accused at any time and only pushed his hand away to prevent the unwanted touching.

She admitted that there appeared to be a bruise over the eye of the Accused in a photograph of him that was shown to her during cross- examination. [ 66 ] She confirmed that she was neither bruised nor marked by any of the touching or grabbing.

The Defence Case [ 67 ] The Accused tells a significantly different story in his testimony, starting with the nature of the relationship between the Accused and the Complainant. [ 68 ] He testified that as of December 24, 2016, he and the Complainant were in a romantic relationship, citing the exchange of their text messages, the general tenor of the relationship, and the nude photos sent to him by the Complainant. [ 69 ] He did admit in cross-examination that the relationship was quite rocky most of December 2016, but believed that they were both still trying to go forward in the relationship. [ 70 ] With respect to the trip to the Superstore, the Accused denied knowing about or agreeing to the transfer of the vehicle with the use of the transfer form, which he says was not amended with his knowledge or consent. [ 71 ] The Accused says that an argument had arisen between the Complainant and the Accused when he refused to participate in what he considered to be a fraudulent scheme with respect to documenting the relationship between the Accused and the Complainant as a landlord/tenant situation.

The Accused said that particular request and resulting discussions occurred multiple times, and for the last time while on the drive to Wal-Mart. He said that was a heated argument between them. [ 72 ] The Accused testified that on the night of December 23, 2016, after watching television in bed, he and the Complainant had consensual sex and slept in the same queen-sized bed, along with Child A, saying that the mattress that the Complainant alleged was in the room had been removed from his house by the Complainant's father around December 16, 2016.

He stated that they had intimate sexual relations on the morning of December 24, 2014. As I understand it, on both occasions, Child A was sleeping in a swing beside the bed. [ 73 ] He indicated that the disagreement arose over the plan for Christmas arrangements involving B.B. The Accused said that because of a prior assault at the hands of B.B., he felt unsafe in his presence. He indicated that he had never thrown the Complainant's phone. [ 74 ] He did testify that she became angry with him, was rough with the car seat in which Child A was seated and that she threw a duvet cover which landed over top of Child A.

At that point, for the protection of Child A, he gently removed the Complainant four feet to a location outside of the door of the master bedroom, and then he closed and locked the door. [ 75 ] He claimed that the Complainant hit the door as he was consoling Child A. He stated that he waited five minutes for the Complainant to calm down. He then chose to unlock the door, and the Complainant did not have a butter knife in her hand. [ 76 ] He testified that on the trip to Cobble Hill in the late afternoon in order to attend the family Christmas Eve dinner, it was an uneventful trip.

He denied touching her between the legs, noting the immediate presence of the children, nor did she admonish him about doing so.

He said that nothing unusual happened upon arrival at his parents' residence. [ 77 ] He denied her allegations that he, on two or three occasions, grabbed her buttocks, and he denied grabbing her breasts or attempting to do so while outside of his parents’ house. [ 78 ] At his parents' house, the Complainant left him there and then called him and made a comment about not touching her inappropriately, to which he told her she was "crazy." He stated that he did not touch the Complainant following their sexual encounter in the morning of December 24, 2016, in any fashion, including any kissing. [ 79 ] He stated that he returned home from Alberta at 2 a.m. on December 23, 2016.

He indicated that just on the morning of December 23, 2016, she had struck him with an open hand, causing him a slight bruise to his left eye. He stated that she has anger issues. His response was his usual one, namely, to simply withdraw physically from her presence. He never reported the assault to the police at the time that it occurred, but did mention it when he was providing a police statement. [ 80 ] When police showed up and arrested him, he was told he was being arrested for assaulting and sexually assaulting the Complainant. He testified he was cooperative with the police and gave them a statement.

Crown Position [ 81 ] Crown says that they have proven the charges against the Accused beyond a reasonable doubt. Crown characterizes the Complainant as a reliable, credible and very careful witness. Crown also says that any differences between the various sources of her evidence were minor in nature. Defence Position [ 82 ] Defence says that this case turns solely on the credibility of the two witnesses. When the credibility of the Complainant is carefully assessed, defence says she was found not to be credible.

[ 83 ] Defence characterizes the Complainant as being tactically sharp, saying that she anticipated questions well, used cunning tactics in her response, especially about the inconsistency in her police statement, in her Family Court Affidavit, and in her viva voce evidence given in court. The Complainant was not straightforward.

She would prevaricate in her testimony, obfuscate throughout her testimony, give long and self-sustaining answers to simple questions, and she shaded the evidence. [ 84 ] Any admitted acts of dishonesty, such as wanting to fabricate the documentation for the child tax credit and the change in the use of the car transfer form without the Accused’s consent, were all, in the characterization of the defence, calculated falsehoods. [ 85 ] Defence also said that she refused to concede prior inconsistent statements, refused to admit she had done anything wrong or said anything to the contrary when it was clearly evident that she had done so.

Examples cited were the date of the breakup, the state of the relationship between the parties just before Christmas, the attempt to fake her personal situation for a tax benefit, and the butter knife story. [ 86 ] Defence says that the Complainant testified in what was described as a “campaigning style,” without answering the questions put to her. [ 87 ] In contrast, the defence says that the Accused testified in a direct, clear, and unchallenged manner. The Accused admitted that he had moved the Complainant out of the room for the protection of Child A, and he could have otherwise denied that.

Defence says that the Accused was unshaken in his testimony about the touching, sexual or otherwise, of the Complainant. Defence says that the act of moving the Complainant was at best de minimis and justifiable on the basis of s. 34(1) of the Code in order to protect Child A. [ 88 ] Therefore, defence states that the Crown has been failed to prove this charge beyond a reasonable doubt.

Crown Rebuttal [ 89 ] In characterizing the Accused's evidence in its reply, Crown says that there were several inconsistencies provided by that evidence and the stories provided by the Accused were unbelievable and were not consistent with what one would expect in terms of reality.

For example, the Crown says that the Accused would have had to have known about the admitted rocky personal relationship but he then goes on to say that the parties were in the process of pursuing that relationship. [ 90 ] Furthermore, Crown says that it is unbelievable that there was absolutely no touching for the rest of the day if what the Accused says was correct, namely, that the parties had engaged in a consensual sexual relationship in the early morning. [ 91 ] Also, the Crown says that the indication by the Accused that he did not reach between the legs of the Complainant does not make sense, given the significant level of stress in the relationship that was evidenced later at the parents' residence in Cobble Hill. [ 92 ] Also, Crown denies that there is any ring of truth to the allegations put forward by the Accused that the Complainant flipped the blanket or duvet cover over Child A in the master bedroom. [ 93 ] Therefore, Crown says that with respect to the evidence of the Accused, I should disregard that evidence and I should accept the better and more accurate version being portrayed by the Complainant because the Complainant was unshaken in her story.

ANALYSIS [ 94 ] This particular case, of course, raises the very set of circumstances which is described by Justice Wood in his reasons for judgment in R. v.

C.W.H .; that is, that after consideration of all of the evidence, if the court is unable to decide whom to believe with respect to the central issue in a prosecution, then the accused must be acquitted. [ 95 ] I must look at the evidence that is before me and determine whether or not I can, on my analysis of the different versions of events that have been presented by the two witnesses, determine whether or not Crown has established and proven the charge against the Accused beyond a reasonable doubt. [ 96 ] I note that in the Complainant's evidence, she was very focused on telling a particular narrative.

Throughout her evidence, she attempted not to answer the questions that were being put to her but rather was trying to bring her answers back to a set of facts which she felt were important. [ 97 ] In doing so, she came across as somewhat disjointed in her evidence. She also came across as being more focused on achieving a particular result rather than simply providing as objective a version of facts as she could, given all the circumstances of this particular case. [ 98 ] The Accused, on the other hand, I found to be quite straightforward in his evidence.

He did concede points when there may have been some inconsistencies in his information. He admitted when he did not have a clear recollection of what may have occurred. He was more precise in his description of the various events that took place than I found in the evidence of the Complainant. [ 99 ] Both of the parties have described in their evidence certain events that they say took place in starkly different terms. When assessing the evidence on the whole, I am faced with the same problem and result that Justice Wood referred to in R. v.

C.W.H .; that is, that I am unable to decide whom to believe with respect to the central issue in this prosecution, namely, whether or not there was one or even a series of assaults committed by the Accused upon the Complainant. [ 100 ] There is no doubt that there was a situation whereby the Accused did physically move the Complainant out of the bedroom as he has admitted. However, I do accept that it was done for the purposes of ensuring the safety of Child A and that the relevant provisions of s. 34 the Criminal Code , namely “Defence of Person,” apply to that situation and the physical contact involved.

CONCLUSION AND DECISION

[ 101 ] Accordingly, on the whole of the evidence, I am not satisfied that the Crown has proven their case beyond a reasonable doubt, and I, therefore, acquit the Accused of the charge against him. [ 102 ] That concludes my reasons. [REASONS FOR JUDGMENT CONCLUDED]