R. v. Jaberi, 2024 BCSC 169

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jaberi, 2024 BCSC 169 Date: 20240112 Docket: 43010 Registry: Duncan Rex v. Slim Jaberi Restriction on publication: Pursuant to s. s.486.4(1) of the Criminal Code , there is a ban on publication, broadcasting, or transmission in any way of any information that could identify the complainant, referred to in this judgment by the initial G. Before: The Honourable Mr. Justice A. Saunders On appeal from: An order of the Provincial Court of British Columbia, dated August 12, 2022 ( R. v.

Jaberi , Duncan Registry No. 43010-2) Oral Reasons for Judgment Counsel for the Appellant: B. Zargarian Counsel for the Respondent: M. Giri (October 25, 2023); J.I. Patsch (January 12, 2024) Place and Date of Hearing: Duncan, B.C. October 25, 2023 Place and Date of Judgment: Duncan, B.C. January 12, 2024 [ 1 ] THE COURT (by videoconference): These reasons are being delivered orally.

In the event a transcript of these reasons is ordered, I am reserving my right to edit for the sake of clarity, but nothing that will impact the result. [ 2 ] The appellant appeals his conviction on one charge of sexual assault contrary to s. 271 of the Criminal Code . The complainant, whom I will refer to by the initial G, was a female restaurant employee; the appellant, a male, was her training manager. The offence was alleged to have occurred during approximately the first four months of her employment, when G was 17 years old. [ 3 ] The trial was held in Duncan, July 25-26, 2022.

The Crown’s witnesses were the complainant, and the restaurant’s general manager. Defence witnesses were the appellant and the restaurant’s operations manager, a Ms. Armstrong. [ 4 ] The complainant testified to several incidents of the appellant having, in her words, used inappropriate language with her and doing inappropriate things to her when she was on the job. She described repeated instances of him making explicit sexual demands of her, sometimes only verbally and sometime in conjunction with him physically accosting her in a sexual manner.

The trial judge summarized the complainant’s testimony of incidents of the appellant allegedly engaging in sexualized physical contact, without her consent, as follows:

a) Coming up from behind her as she stood taking orders at a drive-through window, placing his hands on her waist and pressing his groin against her buttocks;

b) Gesturing for her to come down the hallway towards him, and then blocking her passage with his arm while trying to kiss her face and lips, telling her that he wanted to have sex with her;

c) Instructing her to do go to the boy’s bathroom, where he would hold the door open with one hand, while trying to kiss her and grope her buttocks with the other hand;

d) One specific occasion, when he had her in the downstairs office to instruct her on doing the count, and, she says, he unbuttoned her shirt, groped her breast over her bra while telling her he wanted to have sex with her, and, when she refused, picked her up so that her back was against the office door wither her legs lifted, straddling her waist as he held her up; when she told him to stop, he put her down but then, she testified, he groped her vagina over her pants. She then saw the manager, Ms. Armstrong, coming down the stairs, on the

monitor connected to the restaurant’s security cameras; she said, “One of our managers are coming”, and they broke off contact.

e) A couple of other occasions on which the complainant alleged the appellant put his hand on her buttocks as she climbed the stairs with him behind her. [ 5 ] The appellant denied these incidents. He did acknowledge having been in the downstairs office with the complainant when Ms. Armstrong came in on one occasion. He gave a detailed account of that incident, explaining that he was training her. [ 6 ] The trial judge reviewed principles underlying the assessment of credibility, including in respect of determining reasonable doubt, and in particular the analytical approach set out in W.(D) .

She examined the question of opportunity, finding there was ample opportunity for the appellant to have committed the offences alleged. She commented favourably on the complainant’s demeanour, and on aspects of the complainant’s testimony where the defence had challenged her credibility. The trial judge discussed at some length the evidence as to the incident in the downstairs office, finding corroboration of the complainant’s evidence in the testimony of the manager Ms.

Armstrong, as I will describe. [ 7 ] In one paragraph, the trial judge commented on several aspects of the appellant’s testimony, in respect of which she made adverse comments as to his credibility. The trial judge said: [44] As to Mr. Jaberi’s testimony, he comes off as a very friendly and assured man. He denied the allegations and he attempted to distance himself from the complainant, in my view.

For example, his evidence about driving the second employee home before her, therefore avoiding being in the car alone with her; but according to the complainant, this route actually made the most sense given the homes of the three people involved. Second, deleting her on Snapchat, but this is not consistent with later then accepting her Facebook friend request, which he did. And third, he would not acknowledge that [G] was an attractive young woman.

At some point Crown counsel continued to ask him this question and I said that he did not need to answer, but he clearly did not want to, in my view, admit what was frankly quite obvious. And fourth, the most telling evidence is having the complainant come into the office at closing when she had no need to be there. I conclude that he did so to sexually harass her in private. [ 8 ] Then, referring again to W.(D . ) , the trial judge stated that she did not believe the evidence of the accused, and that it did not leave her with reasonable doubt.

On the basis of the evidence she did accept, she stated that she was convinced beyond a reasonable doubt of the guilt of the accused “for the reasons that I have outlined”. [ 9 ] On this appeal, the appellant submits that the trial judge erred in her assessment of the appellant’s credibility, in a number of respects. [ 10 ] I turn first to the trial judge’s treatment of the evidence concerning the incident in the downstairs office. The complainant’s evidence was that the appellant had asked her to come downstairs so he could train her in how to do the count.

The appellant said that the complainant had asked him for help in doing the cash. [ 11 ] I find there are three problematic aspects of the trial judge’s findings and analysis of the evidence on this incident. [ 12 ] First, the trial judge commented that she found corroboration of the complainant’s version of events in the testimony of the manager Ms. Armstrong, who recalled an incident in which she had come downstairs and found both the appellant and the complainant in the office together. Ms. Armstrong testified that she came downstairs.

The door to the office was opened; she was emphatic on that point, in both her direct evidence and cross-examination. At first Ms. Armstrong testified that she saw that the appellant was seated at one desk and the complainant was at the other desk. She then clarified this in cross, saying that the door was open enough that she could see the appellant sitting behind one desk, but the door was not quite open wide enough for her to see the complainant at the other desk, which was behind the door. She recalled that the appellant “…addressed me and was like, ‘Hey, Lisa’, and gave me a hug.” [ 13 ] Ms.

Armstrong wondered what the complainant had done wrong, to be in the office, and assumed she was getting a writeup. [ 14 ] The complainant, in cross-examination, agreed with the suggestion of defence counsel, that it was Ms. Armstrong who opened the door. That, as I have indicated, is contrary to Ms. Armstrong’s evidence. [ 15 ] The trial judge noted the inconsistency between the complainant’s evidence that the door to the office had been closed until Ms. Armstrong entered the office, and the evidence of both Ms. Armstrong and the appellant that the door was open.

The trial judge commented: [41] At the end of the day, I do not find this to be a material discrepancy. I can accept that the complainant was pushed up against the door while the accused assaulted her, but after she saw Lisa coming it is entirely plausible that the accused opened the door. I do not need to conclude that one way or the other. According to Ms. Armstrong, the door could not be pushed wide open because of the size of the office and the second desk, where she says this is where Ms. S.G. was when Ms.

Armstrong walked in. [42] So I conclude, therefore, that if the door was open I do not need to conclude who opened it, I do not need to conclude, in my view, whether it was Lisa Armstrong, whether it might have been Mr. Jaberi, or whether it was closed and both of them are remembering incorrectly. [ 16 ] The trial judge’s summation of the relevance of the open door, in para. 42, missed the point. The fact of the closed door was central to the complainant’s description of how the alleged assault had occurred. The trial judge was obliged to determine if the door was open when Ms.

Armstrong arrived, and, if it was, how that could have been reconciled with the complaint’s version of events, on the evidence, and whether that gave rise to reasonable doubt. Instead, the trial judge dismissed the issue as immaterial, finding that she did not need to resolve the inconsistency in the evidence, because the inconsistency could be resolved if the door had been initially closed, and then opened by the appellant. This scenario however was entirely a matter of supposition on the part of the trial judge.

The complainant had not testified that the appellant had opened the door, and that suggestion was not put to the appellant. The trial judge characterized the evidence of Ms. Armstrong as having “corroborated” the testimony of the complainant, when just the opposite was

true. The trial judge ought to have confronted this inconsistency and fairly considered whether the evidence of Ms. Armstrong and the appellant, as to the door having been opened, even if the trial judge did not accept their testimony, raised reasonable doubt. [ 17 ] Second, the trial judge then went on in the next paragraph to make an adverse comment as to the accused having hugged Ms. Armstrong when she entered the office. She said, [43] I also conclude that Mr. Jaberi's, what I would describe as a grandiose display of hugging of Ms.

Armstrong, according to her, when she entered, was quite likely a way of disarming her in the event that she questioned what they were doing there, and Ms. Armstrong is an older woman, older than Mr. Jaberi, and the human resources manager for the business. The characterization of the appellant’s conduct as a “grandiose display”, calculated to disarm and distract Ms. Armstrong, was purely an invention of the trial judge. Ms. Armstrong did not characterize the hug as such. The appellant was not cross-examined on whether he had hugged Ms.

Armstrong, whether that was typical behaviour on his part, or what his motivation was in doing so. The trial judge appears to have reasoned that it must have been conduct calculated to distract Ms. Armstrong, because the appellant was otherwise unlikely to have hugged a woman older than him. That comment, I find, amounts to an impermissible reliance on stereotypical thinking about human relationships. [ 18 ] In R v M.P.H. , 2022 BCCA 216 , Justice Marchand, as he then was, wrote: [59] A trial judge may draw inferences that “flow logically and reasonably from established facts”: R. v.

MacIsaac , 2015 ONCA 587 at para. 46 . It is an error of law, however, for a trial judge to draw inferences or make findings of fact based on conjecture or speculation that are based on unfounded stereotypes, generalizations or assumptions: R. v. D.C ., 2012 SCC 48 at paras. 3 and 25–28 ; Roth at para. 73, citing MacIsaac at para. 46 and R. v.

Pilkington , 2019 BCCA 374 at paras. 20–21 . [ 19 ] Justice Marchand went on, at para. 66, to observe that a trial judge’s reliance on speculative reasoning, standing alone, in support of findings on credibility, would not amount to reversible error, but yet may be found to contribute to unbalanced scrutiny of the evidence. [ 20 ] The third problematic aspect of the trial judge’s findings with respect to what happened in the downstairs office, is found in the aforementioned paragraph 44.

Before going there, I will deal with each of the issues raised in that paragraph, in order. [ 21 ] First, I repeat the trial judge’s comments regarding the incident when the appellant drove G and a fellow employee home: … He denied the allegations and he attempted to distance himself from the complainant, in my view. For example, his evidence about driving the second employee home before her, therefore avoiding being in the car alone with her; but according to the complainant, this route actually made the most sense given the homes of the three people involved. [ 22 ] The logic of this finding is unclear.

The complainant and the appellant had both testified to an incident in which the complainant had asked him for a ride home. The complainant lived in Mill Bay, as did the appellant. The appellant agreed to do so, but also offered a ride to another employee, who lived out in Shawnigan Lake. It is common ground that in fact, the appellant went out of his way and drove the complaint home to Mill Bay – before driving the second employee home, out to Shawnigan Lake – and that as a consequence he was not alone in the car with the complainant.

The complainant, contrary to the trial judge’s finding, did not make any comment whatsoever as to which route made the most sense. It appears the suggestion that the route taken was more convenient to the appellant was made by Crown counsel in closing submissions, not by the complainant. In cross-examination, Crown suggested to the appellant that he took this route to avoid inconveniencing the complainant.

The appellant disagreed with this suggestion, but was not given an opportunity to explain why he did so. [ 23 ] The trial judge did not explain what she meant by the appellant having “attempted to distance himself from the complainant” through his testimony on this point. It was open to her to find that this episode likely reflected the appellant’s desire to be seen as exercising good judgment in his interactions with the complainant, and to treat it as having no weight in assessing the appellant’s credibility. But the trial judge appears to have gone beyond that, and used her

interpretation of this evidence, and a mistaken finding as to the complainant’s evidence, as a basis for assessing the appellant’s credibility and rejecting the appellant’s testimony.

That cannot stand, both as a matter of logic, and, as the appellant was not given an opportunity to explain his motivation, as a matter of fairness. [ 24 ] The trial judge continued her analysis of the appellant’s evidence in paragraph 44, commenting on his contact with the complainant through social media: Second, deleting her on Snapchat, but this is not consistent with later then accepting her Facebook request, which he did. [ 25 ] The appellant, however, had testified, without being challenged, that he deleted the complaint’s social media contact because her boyfriend had complained; and then later resumed contact, when she no longer had a boyfriend.

Given the appellant’s evidence was that the circumstances had changed, there was no inconsistency. The reasons, however, do not disclose the trial judge having acknowledged or considered the appellant’s explanation. The finding of an inconsistency was unsupported by the evidence, and the trial judge’s use of this example as a reason to disbelieve the appellant was patently unreasonable. [ 26 ] The trial judge then refers to an exchange between the Crown and the appellant on cross-examination. The trial transcript of this exchange reads: Q Now, [G], you'd agree with me that she's an attractive woman? A Pardon me?

Q You would agree with me that she's attractive?

A I have nothing to say about that. Q You have nothing to say about it? A Yeah. Q You don't think she's pretty? A I have nothing to say about that. Q You didn't think she was pretty when she came to work at the restaurant? A No. I mean like I have nothing to say about that, no. Q So is it that you're -- when you say you have nothing to say about it, it's that you -- A 'Cause -- 'cause you put me -- can I talk? Q Yeah. A Because I feel like you put me in a situation I'll be saying either she's pretty or ugly, and I cannot say either of them. Q Well, do you agree she's pretty or not?

The trial judge then intervened, remarking that she was wondering about the relevance of the line of questioning. [ 27 ] In the reasons, the trial judge commented at para. 44: …And third, he would not acknowledge that [the complainant] was an attractive young woman.

At some point Crown counsel continued to ask him this question and I said that he did not need to answer, but he clearly did not want to, in my view, admit what was frankly quite obvious. [ 28 ] This line of questioning was improper; see the reasons of Simmons J.A. in R. v M.F. , 2009 ONCA 617 at para. 25 , as approved of in R. v T.J.B. , 2017 BCCA 49 , at para. 27 . The trial judge seems to have belatedly realized this was the case, and she brought the questioning to an end.

She did so without the appellant having been given a full opportunity to explain himself. [ 29 ] The trial judge, in making findings as to the appellant’s credibility based on this exchange, fell into error in three ways. First, she made an assessment based on the appellant’s reaction to an improper question by the Crown. No reliance could be properly placed on the appellant’s answers to that question, for any purpose. Second, she made an adverse finding as to the appellant’s credibility based on her own subjective assessment of the complainant’s attractiveness.

It was not for the trial judge to find that the appellant ought to have shared her subjective opinion. Third, it was unfair to have impeached the appellant when he was denied the opportunity to explain himself: see R. v. Luk , 2016 BCCA 403 at paras. 31-41 . [ 30 ] I return to the trial judge’s findings regarding the alleged incident in the downstairs office. Paragraph 44 of the reasons concludes with this finding: …And fourth, the most telling evidence is having the complainant come into the office at closing when she had no need to be there. I conclude that he did so to sexually harass her in private.

This finding relates back to the trial judge’s earlier characterization of the evidence of Ms. Armstrong; at para. 38, the trial judge said: …Ms. Armstrong testified that it was unusual to find the two there. Normally there was no one in the office, or just a manager cashing out. It was so unusual that she assumed that the accused must have been writing her up, which I take it to be some kind of disciplinary note or action. [ 31 ] The trial judge’s conclusion that there was no need for the complainant to have been there, is based on a misinterpretation of the evidence. Ms.

Armstrong did not testify that only managers, as a rule, do cash-outs in the office. What she did say was that in her experience – that experience being limited to going downstairs to do inventory only one evening per week, on Mondays – she had seen only managers, not employees, doing cash-outs. It was not unusual, however, for employees to be written up, and so she assumed the complainant was there for that purpose. She did not testify that the complainant had no need to be there.

Further, the appellant, in his direct evidence, gave a detailed and consistent explanation for having been there with the complainant on this occasion. Nothing in Ms. Armstrong’s testimony cast any doubt on the plausibility of his explanation.

There was simply no basis for the trial judge having concluded that there could have been no bona fide reason – that is, no reason other than the appellant having created an opportunity to harass and assault the complainant – for the complainant having been in the office with him. [ 32 ] The reasons disclose the trial judge having gone to some length to explain her assessment of the appellant’s credibility.

Her assessment of the credibility of the complainant was scant by comparison: [32] I now turn to an assessment of the evidence of the complainant. [G] was age 20 at the time she testified before me as to the events that occurred two years previous. She was observed by me to be a rather timid and very much a reserved young Indigenous woman. I found her evidence to be internally consistent and her evidence balanced, showing no personal motive or agenda.

Indeed, there appeared to be no motive to lie, as she clearly found coming to court to be emotionally upsetting and draining, particularly when describing such personal and embarrassing events. A motive to lie is but one factor that I consider and I acknowledge, of course, that a motive to lie is not always observable.

. . . [35] Indeed, it was clear to me that this young woman was embarrassed throughout her testimony and very often tearful. She even asked her supportive family to leave the courtroom at one point in order for her to continue with her testimony. [ 33 ] In

summary, I find that the trial judge’s evaluation of the appellant’s credibility through the use of conjecture, through characterizations of his evidence that were one-sided and unsupported by the evidence, and through evidence that the trial judge misinterpreted – in particular, what was found to have been the “most telling” conclusion that the complainant had no need to have been in the office – clearly subjected the appellant’s evidence to unbalanced scrutiny. [ 34 ] In R. v.

Roth , 2020 BCCA 240 , Justice DeWitt-Van Oosten discussed the principles underlying uneven scrutiny as a ground of appeal: [47] It is an error of law for a trial judge to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown. See, for example: R. v. Singh et al. , 2020 MBCA 61 at paras. 31–33 ; R. v. Mehari , 2020 SKCA 37 at para. 29 ; R. v. Murray , 2020 BCCA 42 at para. 82 ; R. v. E.H ., 2020 ONCA 405 at paras. 40–41 ; R. v. Willis , 2019 NSCA 64 at paras. 40–45 ; R. v. Wanihadie , 2019 ABCA 402 at paras. 34–43 ; R. v. Kiss , 2018 ONCA 184 at paras. 82–83 ; R. v.

Gravesande , 2015 ONCA 774 at paras. 18–19 , 43. [48] The standard of review for this error is correctness: Mehari at para. 30 ; Willis at para. 11 . [49] This is a notoriously difficult ground of appeal to make out: Mehari at para. 31 ; R. v. Radcliffe , 2017 ONCA 176 at paras. 23–26 , leave to appeal to SCC ref’d, 37671 (7 December 2017). A trial judge has a unique advantage in hearing and seeing witnesses as they testify: E.H . at para. 44 .

Because of that fact, as well as other considerations, appeal courts afford substantial deference to a trial judge’s assessment of credibility, interfering with their credibility findings only in the face of overriding and palpable error: R. v. Wright , 2019 BCCA 327 at paras. 23–24 ; R. v.

Vuradin , 2013 SCC 38 at para. 11 . [50] Consequently, to obtain a new trial on the ground that the judge applied different standards in the assessment of credibility, an appellant must persuade the appeal court of a demonstrably flawed assessment methodology or reasoning process that affected the credibility determination: see Wanihadie at para. 36 and the cases cited therein. [ 35 ] I find the assessment process in this case was so flawed. The analysis of the appellant’s credibility was one-sided and unfair.

It would thereby have inevitably undermined the analysis of reasonable doubt. [ 36 ] Finally, the negative findings as to the appellant’s credibility based on his reluctance to acknowledge the complainant’s “obvious” attractiveness were on their own sufficient grounds for reversal. [ 37 ] The conviction is set aside, and a new trial ordered. “A. Saunders J.”