R v. D.C.R. Date:, 2017 BCPC 80

Citation: R v. D.C.R. Date: 20170303 2017 BCPC 80 File No: 44260-01 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D. C. R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Section. 486.4 Publication Ban Counsel for the Crown: Mr. R. Smith

Counsel for the Defendant: Mr. J. Pakenham Place of Hearing: Prince George , B.C. Dates of Hearing: Dec 23, 2016, Jan 27 & Feb 2, 2017 Date of Judgment: March 3, 2017 INTRODUCTION: [ 1 ] The accused, D. C. R., is charged with one count of sexual assault of the Complainant, K.L.G., contrary to s. 271 of the Criminal Code and one count of wilfully resisting or obstructing a peace officer, Constable Baird, in the execution of his duties contrary to s. 129 (

a) of the Criminal Code. Count 1 is alleged to have occurred on January 26, 2016, and Count 2 on February 2, 2016. Both offences occurred in Prince George, B.C. [ 2 ] Mr. R. and K.L.G. were co-workers at the [delete for publication] in Prince George B.C. The [deleted for publication] has an in-house restaurant with a commercial kitchen. Mr. R. was a cook and K.L.G. a server. Mr. R. had worked at the [deleted for publication] for 13 months; K.L.G. had worked there for two years. On January 26, 2016, Mr. R. was 35 years old and K.L.G. was 16. [ 3 ] K.L.G. said that in the late afternoon of January 26, 2016, Mr.

R. came uninvited into the bathroom at work where she had gone to change into her uniform. He pulled down her leggings and underwear, grabbed and kissed her bare buttocks. She told him no, and ordered him to “get out” and “get back to work”, which he did. Mr. R. says that through her words and actions, K.L.G. invited him into the bathroom for the purposes of engaging in sexual activity. He stopped when she told him to stop and left the bathroom when she ordered him to leave. Later that evening Mr.

R. and K.L.G. discussed the bathroom incident on Facebook. [ 4 ] On January 31, 2016, K.L.G. complained to her work supervisors about the bathroom incident and they reported it to the police. On February 1, 2016, K.L.G. gave a formal statement to Royal Canadian Mounted Police Constable Peter Baird. On the evening of February 2, 2016, Constable Baird went to Mr. R.’s home to arrest him for sexually assaulting K.L.G. Mr. R. refused to cooperate with Constable Baird which gave rise to Mr. R. being charged under Count 2 for resisting or obstructing a peace officer in execution of his duty.

ISSUES: [ 5 ] The issues at trial are as follows: Issue #1: Has the Crown proven beyond reasonable doubt that K.L.G. did not consent to being sexually touched? Issue #2 : Has the Crown proven that D. R. did not have an honest but mistaken belief in consent? Issue #3 : Was Mr. R. required to cooperate with the Constable Baird to effect his warrantless arrest? Issue #4: Did Constable Baird infringe Mr. R.’s rights guaranteed under ss. 7, 8 and 9 of the Charter of Rights and Freedoms ? Issue #5: If Mr. R.’s Charter rights were infringed, what is the appropriate remedy?

Background Facts: Count 1 Evidence of K.L.G. [ 6 ] On January 26, 2016, K.L.G. was a petite 16 year old. She was born [deleted for publication] and is about 5 feet tall. For the past two years she had been working as a server at the [deleted for publication]. She generally works 3 or 4 two-hour shifts per week serving residents their meals. [ 7 ] Although her shift started at 5:25 p.m., on January 26, 2016, K.L.G. arrived at work at about 3 p.m. She came directly to work from a counselling appointment she attended at her high school.

Upon her arrival, K.L.G. greeted some of the residents and the kitchen staff, including Mr. R., who also was on duty. K.L.G. regarded Mr. R. as a work friend. She told him how things were going in high school. They joked with each other. Sometimes if Mr. R. messed things up in the kitchen, K.L.G. would “poke” him about it. They were also friends on Facebook. [ 8 ] When she first arrived at work, K.L.G. sat in the manager’s office drinking coffee until the manager asked her to leave. She retreated to the staff room where she continued to drink her coffee and play on her cell phone.

At the time, she was wearing black leggings, a white tank top, a grey and white sweater and a maroon scarf. I understand leggings to be ti ght-fitting stretch pants.

[ 9 ] The staffroom, also referred to as the break room or locker room, was readily accessible to all the staff; its door was always open. In the late afternoon of January 26, 2016, there were several staff members on duty preparing the evening meal for 100 [deleted for publication] residents. [ 10 ] Mr. R. came into the staffroom on his break. He and K.L.G. updated each other on how their lives were going; they talked about music. While they were chatting another staff member came into the staff room, retrieved her uniform from her locker and returned to the kitchen.

K.L.G. said it was either 4:53 p.m. or 4:58 p.m. because she checked her phone but she cannot distinguish between the 3 and 8. [ 11 ] Shortly thereafter, Mr. R. was looking at something on his cell phone. He started “freaking out” saying, “Oh, my God!” K.L.G. asked him, “What’s wrong?” to which he replied, “You don’t want to see it.” She said, “No, what is it?” Mr. R. showed her a pornographic picture on his cell phone of a naked woman in a very provocative position. K.L.G. said she became “internally scared” because she was not expecting anything of that nature. He had never done that before.

Although she thought it strange and inappropriate, K.L.G. brushed it off. [ 12 ] K.L.G. then went to her locker to retrieve her uniform, shoes and name tag. She went into the bathroom attached to the staffroom in order to change into her uniform. The bathroom was a single stall unisex bathroom with a locking door. It was a private space where K.L.G. and other staff members routinely went to change their clothes. [ 13 ] Mr. R. followed K.L.G. and came into the bathroom before she had a chance to lock the door. He closed the door behind him.

He approached K.L.G. from behind, crouched down and pulled her leggings and underwear to her knees so that she was naked from the waist down. From his crouching position behind her, Mr. R. grabbed K.L.G.’s exposed thighs with both his hands and kissed her bare buttock. He did not say anything to her. K.L.G. said she turned and while looking over her shoulder saw Mr. R. “kiss my bum.” She said, “What are you doing?” Mr. R. didn’t reply and continued. K.L.G. told him loudly and firmly to “Stop! No! Get out! Get back to work!” At that point Mr. R. removed his hands from her thighs.

K.L.G. managed to pull up her underwear and leggings and Mr. R. left the bathroom. [ 14 ] When he left, K.L.G. closed and locked the bathroom door. K.L.G. said this was not something she wanted or expected to occur. She was only 16 and Mr. R. was 35, married with a wife and two children. [ 15 ] K.L.G. changed into her uniform, stared in the mirror and tried to understand what had just happened. She left the bathroom and went into the manager’s office. She worked her two hour shift during which time she had to interact with Mr.

R., who was the chef for the evening. [ 16 ] K.L.G. finished work at 7:00 p.m. and her roommate, C. picked her up. K.L.G. told him about the bathroom incident involving Mr. R. Facebook Messages [ 17 ] K.L.G. and Mr. R. exchanged messages on Facebook both before and after the incident. These series of messages were retrieved from K.L.G.’s ZTE Smart phone and entered into evidence as Exhibit 1. [ 18 ] The messages before the incident are date and time stamped. They read as follows: JAN 25 AT 3:58 PM K.L.G. Poke me one more time and I’ll fuck you up like dynamite JAN 25 AT 5:13 PM Mr. R.

Ok JAN 25 AT 5:14 PM K.L.G. [Two emoji faces with tears of joy] JAN 25 AT 5:36 PM Mr. R. *poke… K.L.G. U mother fucker Mr. R. Technically yes, because I have fucked mothers. K.L.G. WTFFF [Five emoji faces, three with tears of joy and two with tears] Mr. R. Ha JAN 25 AT 6:19 PM K.L.G. Dirty JAN 25 AT 6:19 PM Mr. R. Sorta, yeah [ 19 ] The “poke” is a feature of Facebook that allows friends to virtually poke each other. K.L.G. said she spoke to Mr.

R. about his poking her on Facebook and he said, “Sorry”. [ 20 ] The following exchange of messages occurred in the evening of January 26, 2016 after the bathroom incident. The first message is date and time stamped “JAN 26 AT 7:36 PM” JAN 26 AT 7:36 PM

Mr. R. *poke poke poke JAN 26 AT 7:53 PM K.L.G. Hey that wasn’t cool when I was getting undressed and you kept pulling my clothes off when I said no Mr. R. Sorry K.L.G. Like what the fuck man Mr. R. I actually didn’t hear the no at first K.L.G. What the fuck Mr. R. Sorry I meant no offense Mr. R. Now you hate me, and that’s the last thing I wanted Mr. R. But at least you didn’t punch me K.L.G. What the fuck Mr. R. ?? K.L.G. You’re fucked Mr. R. Huh? K.L.G. I told you not to Mr. R. And I stopped once I realized . . . seriously sorry Mr. R.

Now you know I’m a terrible person [ 21 ] K.L.G. was with C. while carrying on this Facebook conversation with Mr. R. After picking her up from work C. drove K.L.G. to [deleted for publication] in the Spruceland Shopping Mall to get hair dye. K.L.G. said after receiving the message from Mr. R., “Now you know I’m a terrible person,” she was “done talking.” She handed her cell phone to C. and told him, “Say whatever you want.” C. continued the conversation with Mr. R. K.L.G. watched C. type the messages; he showed her the messages he received from and sent to Mr. R. on her phone.

K.L.G. said she read them out of curiosity. Although she looked at the messages C. sent and received from Mr. R., K.L.G. did not touch the phone or change any of the content. C. on K.L.G.’s Phone Yeah I do C. on K.L.G.’s Phone Hopefully you’re wife will realize that too Mr. R. Yep Mr. R. Well actually I’m not, but I did get a little carried away Mr. R. Seemed fun at the time but now I fell shitty for offending you. C. on K.L.G.’s Phone Open your fucking eyes I’m 16 the only reason you didn’t hear me say no is cause you blocked it out.

Give your head a shake and grow up C. on K.L.G.’s Phone You should feel shitty Mr. R. Why’d you let me in the first place? C. on K.L.G.’s Phone You have a wife . . . I was joking . . . Do you honestly think I wanted you in there . . . No. Mr. R. You didn’t seem to mind actually. Shoulda just said you were joking C. on K.L.G.’s Phone I’m 16. . . Should have been reason enough, and I said no and told you to get out. I’m done with this conversation. Grow up and I hope your wife figures you out. I feel bad for her Mr. R. It would not have happened if you hadn’t let me in

C. on K.L.G.’s Phone You came in. Like I said I’m done. Bye Mr. R. Have a good night [ 22 ] K.L.G. removed Mr. R. from her Facebook on SUN at 6:35 and on SUN at 7:11 PM he writes, “You didn’t need to do that. I was already sorry enough.” [ 23 ] On January 31, 2016, K.L.G. met with the [deleted for publication] Managers, R. and B.R., and told them about the January 26, 2016 bathroom incident. Mr. R. called the police.

Constable Baird came to the [deleted for publication] on the evening of January 31, 2016, and the following day K.L.G. went to the RCMP detachment in Prince George and provided Constable Baird with an audio- recorded statement. [ 24 ] K.L.G. says she did not indicate to Mr. R. she wanted sexual contact with him and she did not invite him into the bathroom. She denies having any conversation with Mr. R. about sleeping with a man of his age. She denies making a joke about Mr. R. coming into the bathroom or telling C. that she made such a joke.

K.L.G. said, “I never told him that we were joking around about anything - around an incident like that . . . I never consented to anything or made jokes about anything.” Evidence of D. R. on Count 1 [ 25 ] On January 26, 2016, Mr. R. was 35 years old having been born on [deleted for publication]. He is married to J.H. and they have two children together. Mr. R. is a graduate of the Culinary Arts program at the [deleted for publication] in Prince George, B.C. He had worked as a chef at the [deleted for publication] for a little over a year. [ 26 ] Mr.

R. met K.L.G. when he first started working at the [deleted for publication]. He regarded her as “just someone he worked with”. Prior to January 26, 2016, they would engage in what he described as “friendly banter.” [ 27 ] On January 26, 2016, Mr. R. began working at 10:30 a.m. His shift ended at 7:30 p.m. Mr. R. recalls K.L.G. showing up for work between 3 and 4 p.m. She came into the kitchen and greeted Mr. R. and the prep cook, P., grabbed a tea or coffee and left his work area. About an hour after K.L.G. arrived, Mr. R. went into the staffroom for his half hour break.

K.L.G. and P. were in the staffroom at the time. Mr. R., P. and K.L.G. chit chatted for half of Mr. R.’s break. P. then left, leaving Mr. R. and K.L.G. alone in the staffroom. [ 28 ] Mr. R. denies showing K.L.G. any pornography on his cell phone. Instead, he says that after P. left the staffroom, K.L.G. started to talk about her sex life. She told him that although she was only 16, she had sex with over 30 people. K.L.G. asked Mr.

R. how old he was, he told her, “35, I know that is pretty old to you - probably.” K.L.G. said, “I don’t think that is too old, I have had sex with people around your age before.” [ 29 ] K.L.G. said she was going to get ready for work and went to her locker and got her uniform. She went into the bathroom, but didn’t close the door. Mr. R. could see into the bathroom from where he was sitting in the staffroom because the door was open. K.L.G. started undressing while making eye contact with him. He said, “Aren’t you going to close the door?

I might as well be in there with you if you aren’t closing the door.” K.L.G. said words to the effect, “Yeah, go right ahead.” [ 30 ] Mr. R. got up off the chair on which he had been sitting in the staffroom. He went into the bathroom with K.L.G. He closed and locked the door. He put his hand on her waist, for a second or two. K.L.G. did not say anything. Mr. R. pulled down her pants; K.L.G. did not say anything. Mr. R. pulled down her underpants; K.L.G. still did not say anything. Mr. R. crouched down and kissed her on the buttocks. She laughed. He stood up and K.L.G. told him “get out - go!” Mr.

R. got out of the bathroom and closed the door and went back to work. [ 31 ] Mr. R. acknowledged discussing the incident with K.L.G. on Facebook later that evening. Mr. R. acknowledges sending those messages attributed to him in Exhibit 1. His comments for some of communications are as follows: Messenger Message Mr. R.’s Response K.L.G. Hey that wasn’t cool when I was getting undressed and you kept pulling my clothes off when I said no . . . Mr. R. I actually didn’t hear the no at first Mr. R. says he didn’t hear K.L.G. say no at first and does believe she did at the time he pulled off her clothes.

He didn’t hear her say anything until she told him to stop and get out.

. . . Mr. R. Sorry I meant no offense This was in response to K.L.G. saying she told him not to. . . . Mr. R. And I stopped once I realized . . . seriously sorry Mr. R. says this message was in response to K.L.G.’s initial message saying she told him “no” He says he did stop, once he heard her say “stop - get out.” Mr. R. Now you know I’m a terrible person Mr. R. says he sent this message because K.L.G. was obviously very upset about the incident and he was “upset about the fact that she was upset about it. Mr. R. said, K.L.G. “seemed okay at the time of the incident, but at this point she was really upset.

I just wanted her to be okay. At this point I considered her to be a friend still.” . . . Mr. R. Well actually I’m not, but I did get a little carried away Mr. R. says that with this message he meant to convey that he was not actually a terrible person, but he did get carried away. Even though she did allow him to go in the bathroom with her, his behavior was still inappropriate. By inappropriate he meant: (

a) he is a married man; (

b) K.L.G. was “a bit too young”; and (

c) it was improper behavior for the work place. Nevertheless, at no point during the incident did K.L.G. indicate she did not consent to the activity. . . . Mr. R. Why’d you let me in the first place? Mr. R. said with this message he meant to say, “if she didn’t want me in there in the first place, she shouldn’t have allowed me to come in there.” Mr. R. says he did not follow K.L.G. into the bathroom or force his way in. K.L.G. made eye contact with him. He said to her, “I might as well be in there and she said, “sure go ahead.” K.L.G.’s Phone You have a wife . . . I was joking. . Do you honestly think I wanted you in there . . . No. . . . Messenger Message Mr. R.’s Response

Mr. R. You didn’t seem to mind actually. Shoulda just said you were joking Mr. R. says in sending this message he was referring to K.L.G. saying she was joking about letting him in the bathroom with her. Mr. R. said that as soon as he walked into the bathroom, K.L.G. didn’t say anything. She didn’t say, “heh, I was joking, get out.” K.L.G.’s Phone I’m 16. . . Should have been reason enough, and I said no and told you to get out. I’m done with this conversation. Grow up and I hope your wife figures you out. . . I feel bad for her Mr.

R. says, “ if she had indicated she was joking or didn’t want me in there at all, I would not have gone in there.” Messenger Message Mr. R.’s Response Assessment of credibility with respect to Count 1 [ 32 ] As is often the case of sexual assault, the only witnesses to the incident giving rise to the charges are the complainant and the accused. This compels me to assess what evidence I find reliable and credible. In this case, there is no issue as to the reliability of Mr. R. and K.L.G.’s evidence.

Both were sober and had the capacity and experience to properly interpret what they were hearing, seeking or experiencing. I can draw nothing significant about how either performed as a witness. K.L.G., at 16 was an adolescent girl testifying to matters she found upsetting. Not surprisingly, she could become very emotional at times. Mr. R., a mature man, was less emotional and more collected. Both witnesses had some interest in the outcome of the trial. [ 33 ] In assessing the credibility of Mr. R. and K.L.G.’s respective testimony, I have taken into consideration the following factors: (

a) the plausibility of their evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence, (

e) the “balance” of the evidence, meaning the witnesses apparent willingness to be fair and forthright. Points of agreement and disagreement [ 34 ] Mr. R. and K.L.G. agree the sexual activity giving rise to Count 1 occurred around 5 p.m. on January 26, 2016, in the staff bathroom, at the [deleted for publication] in Prince George B.C. They substantially agree the sexual activity involves Mr. R. coming into the bathroom, placing his hands on K.L.G., pulling down her leggings and panties and kissing her bare buttock. [ 35 ] Mr.

R. and K.L.G. do not agree as to the nature or substance of their discussions in the staffroom immediately preceding the incident; they do not agree K.L.G. invited Mr. R. into the bathroom; they do not agree K.L.G. consented to the sexual activity. Sexualized Conversations [ 36 ] K.L.G. says the only shared sexualized communication she had with Mr. R. preceding the bathroom incident was Mr. R. showing her pornography on his cell phone. Mr. R. denies showing K.L.G. pornography.

He says K.L.G. is the one who introduced the topic of sex into their conversation in the staffroom when she began telling him about her sex life. She asked him his age, which he told her. When he commented that 35 was likely old to her, K.L.G. told him she had sex with people his age before. K.L.G. was never confronted with Mr. R.’s evidence she told him that although she was only 16, she had sex with over 30 people. She denies she told Mr. R. she had sex with people his age before. [ 37 ] Mr. R. and K.L.G. had worked together for over a year.

They chit chatted at work and on Facebook, but did not socialize outside of work. They had no history of intimacy. They were at work and sober at the time of the incident. In my view, there was likely a catalyst for the events that transpired in the bathroom. I accept that shortly before 5:00 p.m. Mr. R. and K.L.G.’s conversation in the staffroom became sexualized more-or-less in the manner Mr. R. described. [ 38 ] As to Mr. R. showing K.L.G. a pornographic image, the Crown tendered no forensic evidence of the contents of Mr. R.’s cell phone, and he denies the allegation. I do note that K.L.G.’s responses to Mr.

R.’s Facebook messages of January 25, 2016, at 5:36 p.m. suggest she was not encouraging Mr. R. to discuss his sexual exploits. I do not know who to believe with respect to whether Mr. R. showed K.L.G. a photographic image and make no finding in that regard as it is not relevant to whether she consented to the sexual activity in issue. The Bathroom Incident [ 39 ] Mr. R. said that when she went into the bathroom, K.L.G. started to undress without closing the door. He did not say nor was he asked in either direct or cross- examination what

article of clothing she is supposed to have removed. On one occasion Mr. Pakenham asked K.L.G. if she agreed that while the bathroom door was ajar, she started removing her sweater. I was unable to discern her answer. I note from her evidence in direct examination she said was also wearing a white tank top, which I assume would have been under her sweater. Clearly, she had not removed her leggings and underwear.

[ 40 ] Mr. R. was obviously watching K.L.G., who, he says was making eye contact with him. Mr. R. said to her that if she wasn’t going to close the door, he might as well be in there and she responded with words to the effect, “Sure go ahead.” K.L.G. denies saying any such thing. She claims Mr. R. followed her uninvited into the bathroom before she had a chance to close the door. [ 41 ] I accept Mr. R.’s version of the

preamble to the alleged offence primarily because it is corroborated by Exhibit 1. Within three hours of the incident, Mr. R. asked K.L.G. why she invited him into the bathroom if she did not want him in there. She replied she was joking. K.L.G. has tried to distance herself from this response by attributing it to her roommate C., who she says had assumed control of her phone at that point in their conversation. C. did not testify at the trial and the Crown offered no explanation for his absence.

Nevertheless, even if C. was handling K.L.G.’s phone during this portion of the Facebook conversation, I believe the words he used were those of K.L.G. I say this because K.L.G. testified she told C. “about what happened at work” on their way home when he picked her up after her shift ended on January 26, 2016. She read the messages C. wrote before they were sent. I find K.L.G. did tell C. she was joking about inviting Mr. R. into the bathroom. [ 42 ] Mr. R. and K.L.G. agree that when Mr. R. came into the bathroom: a. Mr. R. closed the bathroom door; b. Mr. R. did not say anything; c.

K.L.G. did not say anything when Mr. R. closed the door; d. Mr. R. stood behind K.L.G., facing the back of her head; e. Mr. R. pulled down K.L.G.’s leggings and underwear leaving her lower torso exposed; f. Mr. R. crouched down and kissed K.L.G.’s bare buttock; g. Mr. R. stood up; h. K.L.G. told him to get out; and i. Mr. R. left the bathroom. [ 43 ] Mr. R. and K.L.G.’s respective account differ in certain details. [ 44 ] Mr.

R. says: a. he rested his hands on K.L.G.’s waist for a second or two, she didn’t say anything; b. he pulled down her leggings, she didn’t say anything; c. he pulled down her underwear, she didn’t say anything; d. he kissed her buttock; e. K.L.G. laughed; f. he stood up and left the bathroom when K.L.G. ordered him to get out. [ 45 ] K.L.G.’s says: a. Mr. R. pulled her leggings and underwear down to her knees in one motion; b. She told him to stop; c. She felt him grab her “bum”; d. She looked over her shoulder she saw Mr. R. kiss her “bum”;

d. She asked Mr. R., “What are you doing?” e. Mr. R. stood up; f. she pulled up her leggings and underwear; g. she told Mr. R. to get out and get back to work; h. Mr. R. left the bathroom; i. K.L.G. closed and locked the door, changed into her uniform and went to work. [46] Essentially, Mr. R.’s evidence indicates he “tested the waters” by progressing from placing his hands on K.L.G.’s waist topulling down her leggings, followed by her underwear, then kissing her buttock.

In Exhibit 1, K.L.G. initiates the Facebook conversationon January 26, 2016, at 7:53 p.m., she states, “Hey that wasn’t cool when I was getting undressed and you kept pulling my clothes offwhen I said no.” At trial, K.L.G. says Mr. R. pulled down her leggings and underwear immediately in one motion. She told him to stop;instead, he grabbed and kissed her “bum.” Neither Mr. R. nor K.L.G. mentioned any other

article of clothing being “pulled off” otherthan her leggings and underwear. K.L.G.’s message on Facebook corroborates Mr. R.’s evidence that he first pulled down K.L.G.’sleggings and then her underwear. I accept this is what happened. I also find the bathroom incident began and ended very quickly [47] I do not believe K.L.G. laughed when Mr. R. kissed her buttock. There is no reference to such a reaction on Exhibit 1. Mr.R.’s message, “You didn’t seem to mind actually. Shoulda just said you were joking” suggests K.L.G. did not laugh.

Laughing is alsoincongruous with K.L.G.’s behaviour during the incident, which was silence terminated by her demanding to know what Mr. R. wasdoing and commanding him to “get out.” Count 1: Applicable Law Elements of the offence of sexual assault [48]

Section 271of the Code sets out the offence of sexual assault. In R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330,at para. 23, the Supreme Court set out the five essential elements of the offence of sexual assault has follows: a. three criminal act (actus reus) elements: i. touching ii. the sexual nature of the contact iii. the absence of consent b. two criminal intent (mens rea) elements: i. intention to touch ii. knowledge, recklessness or wilful blindness about lack of consent Criminal Act: Element 1: Touching [49] A sexual assault can be any form of assault as that term is defined the s. 265 of the Criminal Code, which includes: a. direct or indirect application of force (touching); b. acts or gestures that attempt or threaten to apply force; and c. accosting or impeding another person while armed with a weapon.

Criminal Act: Element 2: Sexual Nature

[50] For a sexual assault, the contact must be of a “sexual nature”. In R. v.

Chase, (SCC), at para. 11, McIntyre J.held that sexual assault is “committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.” Thesexual nature of the contact is determined objectively, on the standard of the reasonable observer, and involves a consideration of thefollowing factors: a. the body part touched; b. the nature of the touching; c. the surrounding situation or circumstances; d. the accompanying words or gestures, including threats; and e. the intent or purpose behind the touching, including sexual gratification.

Criminal Act: Element 3: Absence of Consent [51] Sexual assault requires an absence of consent, meaning “the voluntary agreement of the complainant to engage in the sexualactivity in question”: s. 273.1 of the Criminal Code. Consent for the purposes of s. 273.1 means the consent to the sexual activity inquestion. The Complainant must subjectively agree to the specific physical act, its sexual nature and the identity of the partner: R. v.Hutchinson, 2014 SCC 19 , at para. 54. [52] Consent exists in the mind of the person touched. In Ewanchuk, Major, J., in speaking for the majority, stated at para. 26: 26.

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: . . . [citations omitted] [53] Whether the complainant subjectively consented in her mind at the time is a question of fact to be gleaned from: (

a) thecomplainant’s direct evidence as to her state of mind at the time; (

b) other relevant evidence, including the complainant’s “words oractions, before and during the incident. In paragraph 26 of Ewanchuk, Major J. writes: 29. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessedby the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, beforeand during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to takeplace.

If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown hasdischarged its obligation to prove the absence of consent. [54] The Crown must prove the absence of consent beyond a reasonable doubt. [55] Consent is a voluntary agreement to engage in sexual activity. If the Court finds the complainant did not consent in her mind,consent cannot be “implied” by objectively construing her actions in the circumstances.

There’s no defence of “implied consent” or “defacto consent.” Consent cannot be inferred from silence, passivity or ambiguity: see Ewanchuk, para. 51. This means the Court cannotimply consent by the complainant’s failure to resist sexual activity, submission to sexual activity or even apparent willingness toparticipate in sexual activity. The accused’s view of the complainant’s conduct is not relevant to whether the Crown has proven thecriminal act.

Criminal Intent: Element 4: Intention to Touch [56] Even if the complainant did not subjectively consent to the sexual activity, the accused must have intended to touch thecomplainant, meaning it was not accidental or inadvertent. Criminal Intent: Elements 5: Having knowledge or being reckless of or wilfully blind to a lack of consent [57] The Crown must prove an accused intended to touch the complainant in a sexual manner and that he had knowledge or wasreckless or wilfully blind about her lack of consent.

Whereas consent, as an integral element of the criminal act is considered from theperspective of the complainant, consent, as an integral element of the criminal intent, is considered from the perspective of the accused:Ewanchuk, para. 44. [58] The accused can negate criminal intent with an honest, but mistaken belief the complainant was communicating consent by herwords or conduct to the sexual activity in question.

As Major J. stated Ewanchuk at para. 46: A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence.The accused’s speculation as to what was going on in the complainant’s mind provides no defence.

[59] In other words, an accused bald assertion he believed the complainant consented is not sufficient to raise the defence of honestbut mistaken belief. This assertion must be supported by some evidence or circumstances: Ewanchuk, paras. 46 and 56. [60] The defence of honest but mistaken belief is limited by statutory and common law.

Section 273.2 of the CriminalCode provides that it is not a defence to a charge of sexual assault that the accused believed the complainant consented to the sexualactivity where that belief arose from the accused’s recklessness or wilful blindness, or “the accused did not take reasonable steps, in thecircumstances known to the accused at the time, to ascertain that the complainant was consenting.” [61] In R. v.

Malcolm, 2000 MBCA 77 at para. 24, leave to appeal to Supreme Court of Canada refused, [2000] S.C.C.A.No. 473, the Manitoba Court of Appeal set out an analytical framework to assess whether an accused did not take reasonable steps as setout in 273.2(b). First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of thesame circumstances, would he take further steps before proceeding with the sexual activity?

If the answer is yes, and the accused hasnot taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe,then the accused would not be required to take further steps and the defence will apply. [62] In R. v. Alboukhari, 2013 ONCA 581 , at para. 42, the Ontario Court of Appeal clarified that it is the circumstancesthat are subjectively known to the accused at the time that must be considered: 42.

Thus, while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstancessubjectively known to the accused. The accused is not under a positive obligation to determine all of the relevant circumstances; rather,the assessment is based on the circumstances actually known to him or her at the time . . . [Citations Omitted] [63] In R. v. R.G., (BCCA), at para. 29 British Columbia Court of Appeal held that what is required in terms ofreasonable steps depends on the facts.

Section 273.2(

b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accusedto ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be asmany and as varied as the cases in which the issue can arise, and it seems to me that the

section clearly contemplates that there may becases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the allegedoffence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief. [64] The accused’s mistaken belief in consent need not be reasonable in order for the defence to be available, only honest.

It isavailable where there is a denial of consent which the accused interprets as consent in circumstances of ambiguity or equivocalityshowing the possibility of mistaken believe without being wilfully blind or reckless: R. v. Davis, (SCC), at para. 86. Application of the Law to the Facts in this case Elements not in issue: [65] The following elements of the offence of sexual assault are uncontested: a. the identity of Mr. R. as the accused; b. the date and time of the incident; c. the jurisdiction of this court; d. Mr. R. touched K.L.G. in a sexual nature; and e. Mr.

R. intended to touch K.L.G. in a sexual nature. Issue #1: Has the Crown proven beyond reasonable doubt that K.L.G. did not consent to being sexually touched? [66] The critical issue in this case is whether the Crown has proven K.L.G. did not consent or that Mr. R. did not have an honest, butmistaken belief in consent. [67] In applying the law to the facts, I am mindful this is a criminal trial and not a credibility contest between Mr. R. and K.L.G. The Crown is required to prove Mr. R.’s guilt to sexually assaulting K.L.G. beyond a reasonable doubt. I cannot decide Mr.

R.’s guiltby simply deciding whose version of events I prefer. I must consider the evidence as a whole to determine whether the Crown hasproven Mr. R. guilty of the offence of sexual assault beyond a reasonable doubt. [68] In R. v. W. (D), , the Supreme Court of Canada has provided the trial courts with an analytical framework toassess reasonable doubt in the context of conflicting testimony in a criminal trial. Recently, Professor David M. Paciocco, in his paper,Doubt about Doubt: Coping with R. v. W(

D) and Credibility Assessment, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [69] K.L.G. testified she did not consent to the sexual activity which occurred in the bathroom, before or during the incident.

Mr. R.does not claim to have asked K.L.G. if she wanted to have sex with him; nor does he claim K.L.G. said she wanted to have sex with him. Nevertheless, the Defence asks this court to find K.L.G. actually consented to the sexual activity from the following evidence: a. the sexualized conversation which K.L.G. initiated just prior to going into the bathroom which was particularized as K.L.G.saying she had sex before with people Mr. R.’s age; b. K.L.G.’s apparent consent to Mr. R. joining her in the single occupancy bathroom where she had gone to change; c. K.L.G. did not say anything when Mr.

R. entered, closed and locked the bathroom door; d. K.L.G. said nothing when Mr. R. put his hands on her waist, then pulled down her leggings and then her underwear; e. K.L.G. laughed when Mr. R. kissed her on the buttock; f. As soon as K.L.G. told Mr. R. to get out he immediately ceased all activity and left the bathroom; g. When Mr. R. asked K.L.G. later on Facebook, “why’d you let me in in the first place”, K.L.G., or C. on her behalf , responded“You have a wife . . . I was joking . . Do you honestly think I wanted you in there . . . No.” [70] I have already found that K.L.G. did not laugh when Mr.

R. kissed her buttocks. Even in Mr. R.’s own version of the incident,there is no evidence of any expressed agreement from K.L.G. to engage in sexual activity with Mr. R. at the time. After their sexualizeddiscussion in the staffroom, K.L.G. told Mr. R. she was going to ready for work and change into her uniform. She went into her locker,removed her uniform and took it with her to the bathroom to change, as was her habit. There is nothing in these words or acts to suggesta prelude to engaging in sexual activity with Mr. R. [71] Mr.

R. says when K.L.G. was in the bathroom she made eye contact with him and told him “go ahead” when he said he mightas well be in there with her. Mr. R. went into the bathroom hopeful for some sort of sexual activity because “the way she was in therewith the door still open, starting to undress, it did seem like that at the time.” It is not clear to me that “starting to undress” meant K.L.G.had taken off her over-sweater or she was planning on changing into her uniform. [72] When Mr. R. went into the bathroom K.L.G. did not say anything. She made no overtures toward Mr. R. to suggest she desiredphysical intimacy.

She did not initiate any amorous touching such as groping, hugging or kissing. She was not an active or engagedpartner in the ensuing sexual activity. She stood silently with her back to Mr. R. while he pulled down her pants and underwear andkissed her buttocks. She looked over her shoulder, asked him what he was doing and told him to get out. [73] The Defence asks that I do what the Supreme Court has said in Ewanchuk constitutes an error in law, which is to imply fromK.L.G.’s silence, lack of resistance and ambiguous conduct that she consented to the sexual activity.

In Ewanchuk, Major, J adopted thefollowing words of L’ Heureux-Dubé, J in R v Park, (SCC): The mens rea of sexual assault is not only satisfied when it is shown that the complainant was essentially saying “no” but it is alsosatisfied when the complainant was essentially not saying “yes”. [74] I do not find in K.L.G.’s words or conduct that she consented to the sexual activity in the bathroom. Conversely, I find her lackof participation, her demand to know what Mr. R. was doing and her command to “get out” as lack of consent. In R. v.

James, 2014 SCC5 , at para 5, the Supreme Court held that when assessing the issue of consent, a trial judge ought to consider the complainant’sdistraught condition a short time after the sexual contact. In this case, K.L.G.’s Facebook conversation with Mr. R. shortly after theincident indicates she was distressed at the sexual activity that occurred earlier that evening in the staff bathroom. I believe K.L.G. whenshe said she did not consent to the sexual activity.

There is nothing in her words and actions before and during the incident which raisesa reasonable doubt that K.L.G. subjectively did not consent to the sexual activity. For the purposes of assessing whether K.L.G. actuallyconsented to the sexual activity, Mr. R.’s perception of K.L.G.’s state of mind is not relevant. Accordingly, I find the Crown has provenbeyond a reasonable doubt that K.L.G. did not consent to the sexual activity in the bathroom. Issue #2: Has the Crown proven that D. R. did not have an honest but mistaken belief in consent? [75] In this case, there is some evidence Mr.

R. believed K.L.G. communicated her consent to engage in some sort of sexual activitywith him. Although I have found as a fact she did not consent, I accept there is some ambiguity in her conduct immediately precedingMr. R. going into the bathroom and engaging in the sexual activity in issue.

[76] What were the circumstances known to Mr. R.? In addition to the sexualized conversation and K.L.G.’s apparent invitation tohim to join her in the bathroom, the following facts were known to Mr. R. at the time: a. K.L.G. was a co-worker who Mr. R. had known for a little over a year when he started working at the [deleted for publication]; b. Mr. R. and K.L.G. chit chatted and joked around at work; c. Mr. R. and K.L.G. were friends on Facebook; d. While at work K.L.G. sometimes discussed her personal circumstances with Mr. R. such as how she was doing in school; e.

K.L.G. was a high school student and less than half Mr. R.’s age; f. K.L.G. knew Mr. R. was married with children; g. K.L.G. and Mr. R. never socialized outside of work; h. In the late afternoon of January 26, 2016, K.L.G. and Mr. R. were at work readying to prepare and serve meals for up to 100 [deletedfor publication] residents; i. The staff bathroom was a private space with a lockable door where K.L.G. and other staff members used as a change room; and j. The bathroom adjoined the staffroom.

There were several staff members on duty around 5 p.m. on January 26, 2016, all of whomhad free and easy access to the staffroom. Was Mr. R. Reckless? [77] Reckless means careless of the consequences, heedless, or lacking prudence or caution: R. v. Dickson, 2006 BCCA 490, at para. 41. In Malcom, Helper J.A. refers to R. v. Sansregret ( (SCC), and the meaning of reckless in thecontext of a sexual assault: Recklessness will arise where an accused subjectively perceives a danger or risk that consent is not present, but proceeds in anyevent. [78] Mr.

R. acknowledges that he got carried away and that it was reckless to engage in sexual activity in the staff bathroom at workjust before the evening meal. He acknowledges the sexual activity inappropriate because he was a married man, K.L.G. was “a bit tooyoung” and it was improper behaviour for workplace. What Mr. R. does not admit or even seem to have seriously considered, was thatK.L.G. was not consenting to the sexual activity. Although at first blush Mr. R.’s behaviour seems reckless, I cannot find he subjectivelyperceived a risk that K.L.G. did not consent to the sexual activity. Was Mr.

R. wilfully blind? [79] The Supreme Court of Canada in Sansregret says that wilful blindness arises when a person who has become aware of the needfor some inquiry declines to make the inquiry because he does not wish to know the truth.

In Malcom, Helper J.A. elaborates in para. 12: Wilful blindness . . . will arise in situations where it is obvious in the circumstances that there was no true consent (not just a risk thatthere may not be a consent), but the accused does not confirm that lack of consent because he wants to be able to say that he did not“know” there was no consent. [80] There is little evidence that Mr. R. became “aware” of the need for some inquiry, but declined to do so because he did not wishto know the truth. The evidence indicates Mr.

R. had convinced himself K.L.G. wanted to have sex with him then and there and did notpause to consider whether this was in fact the case. Did Mr. R. take all reasonable steps to ascertain consent? [81] I accept the air of reality test is met and will proceed with the Malcom analysis on the basis Mr. R. was neither reckless norwilfully blind. At this stage, I must consider if the circumstances known to Mr. R. are such that a reasonable man would take furthersteps to ascertain consent before proceeding with sexual touching. Mr.

R. bears an evidentiary burden to show he took reasonable stepsin the circumstances known to him at the time: Malcolm, para. 22 [82] In my view, given the circumstances subjectively known to Mr. R. as set out above, K.L.G.’s consent to sexual activity with Mr.R. in the [deleted for publication] staff bathroom at approximately 5 p.m. on January 26, 2016, required further inquiry. A reasonableman would have considered that K.L.G. may have been joking, or perhaps had something else in mind other than him coming into thebathroom and engaging in sexual activity.

Walking into the bathroom, locking the door and pulling off her leggings and underwear wasan aggressive first step in ascertaining whether K.L.G. wanted to engage in sexual activity. Mr. R. ought to have taken further steps toascertain K.L.G.’s consent and did not do so. Accordingly he cannot rely on a defence of honest but mistaken belief in her consent.

Conclusion on Count 1 [ 83 ] In

summary, I find the Crown has proven beyond a reasonable doubt: (

a) K.L.G. did not consent to Mr. R. engaging in sexual activity with her in the late afternoon on January 26, 2016, at the [deleted for publication] in Prince George, B.C.; and (

b) Mr. R. failed to take reasonable steps in the circumstances subjectively known to him to ascertain whether K.L.G. was consenting to the sexual activity and therefore did not have an honest but mistaken belief in her consent. Accordingly, the Crown has proven Mr. R. is guilty to sexually assaulting K.L.G. beyond a reasonable doubt. Count 2: Obstruction or Resisting a Peace office in the execution of his duties Background Facts The Arrest: Constable Baird’s Evidence [ 84 ] Constable Peter Baird was the investigating officer in this matter. He has been with the RCMP for nine years.

On January 31, 2016, he was dispatched to respond to a complaint made by Mr. R. Constable Baird met with K.L.G. at the time, but she was too upset to provide a statement. Constable Baird asked K.L.G. to attend at the RCMP Detachment to provide a formal statement the following day, which she did. On February 1, 2016, between 3:12 p.m. and 4:15 p.m. K.L.G. provided an audio-recorded statement. At its conclusion, Constable Baird formed the opinion he had reasonable grounds to believe Mr.

R. had committed the indictable offence of sexual assault and therefore arrestable without a warrant pursuant to s. 495 of the Criminal Code . [ 85 ] Constable Baird conducted a search in the RCMP PRIME database and learned Mr. R. lived at [deleted for publication] in Prince George, B.C. He had no information suggesting Mr. R. was violent or a flight risk. Because Mr. R. had no criminal record, Constable Baird intended to arrest Mr.

R. for sexual assault of K.L.G. and release him on conditions to prevent the continuation of the offence. [ 86 ] At 9:35 p.m., on February 2, 2016, Constable Baird drove his marked police vehicle to Mr. R.’s residence at [deleted for publication], Prince George, B.C. to arrest him for sexual assaulting K.L.G. He was wearing his RCMP police uniform. At the time, he was aware this was Mr. R.’s home where he lived with his family. Constable Baird did not seek or obtain an arrest warrant in the 30 hours since K.L.G. had provided her statement.

He was aware that he was not permitted to arrest a suspect in a dwelling house without a warrant except in special circumstances. Constable Baird said his intention was to place Mr. R. under arrest when he answered the door. [ 87 ] When he arrived at the R. residence, Officer Baird walked down the walkway and up the stairs to the front entrance and knocked on the door. Mr. R. responded to the officer’s knocking and opened the front door, which opened into the interior of the house. [ 88 ] Constable Baird said Mr.

R. opened then snaked around the door as though he knew why the officer was there and didn’t want anyone inside to see a police officer was present. Constable Baird recalls Mr. R. being in the doorway with his feet on the ledge separating the front door from the steps leading up to the house, in other words, the threshold. Mr. R.’s hand was behind his back holding the knob to the door. Constable Baird could not recall if Mr. R. was “outside” the threshold. [ 89 ] Constable Baird asked Mr. R. if he was D. R. Mr. R. said, “Yes”. Constable Baird told him he was under arrest. Mr.

R. said “No”, slammed the door and went upstairs in his residence. At this point Constable Baird was on the doorstep leading to the front door. Constable Baird was caught off guard and could not react in time to seize and restrain Mr. R. He had not even had time to tell Mr. R. why he was under arrest. Instead of lunging forward to grab Mr. R., Constable Baird took a step back. Constable Baird did not touch him before Mr. R. closed and locked the door. [ 90 ] Constable Baird called for backup and knocked on the door again, loudly. This time Ms. H. answered the door, looking terrified. Constable Baird told Ms.

H. that Mr. R. “needs to come back here.” She asked what was going on, but Constable Baird would not tell her. She opened the door and said okay come in and made a welcoming gesture with her hands towards the inside of the house. [ 91 ] Ms. H. went back inside the house and Constable Baird remained on the porch. Ms. H. quickly returned and told Constable Baird that Mr. R. was hiding in the bathroom and refusing to come out. This information troubled Constable Braid who then went to the R.’s ensuite bathroom and told Mr. R. he was resisting arrest. Mr. R. refused to come out.

Constable Baird banged on the door and tried to open it and Mr. R. tried to shut it. Eventually Constable Baird forced open the bathroom door, put Mr. R. in handcuffs, escorted him to the police vehicle and read him his Charter rights. The Arrest: Mr. R.’s Evidence [ 92 ] At around 9:30 p.m. Mr. R. and his wife, J.H., were watching television in their living room. Their two children were asleep in their beds. Mr. R. heard a knock and went in stocking feet to answer the door. [ 93 ] Mr. R. was not shocked to see the police officer.

He had already spoken to the Manager of the [deleted for publication] who had fired him over the incident involving K.L.G. The manager advised Mr. R. to hire a lawyer. [ 94 ] Mr. R. says he was still in the interior of the residence when he opened the door. He saw a police vehicle with its emergency lights flashing. He heard an officer ask if he was D. R. He did not see the officer who was standing some distance from the door, but did recognized by the authoritative voice he was a police officer. When Mr. R. acknowledged he was D. R., Constable Baird told him he was under arrest. Mr.

R. said “No”, closed and locked the door and went upstairs in his residence. He did not want to be arrested. Constable Baird did not touch him before Mr. R. closed and locked the door. [ 95 ] Mr. R. went upstairs and went into his bedroom to the ensuite bathroom to use the facilities. Ms. H. came to the bathroom door and told Mr. R. the police officer would not go away. Mr. R. said he was not intending to come out of the bathroom until he was

finished using the facilities. He stayed in the bathroom until Constable Baird came and forced him to leave. J.H.’s Evidence [96] Ms. H. did not know who was at the door when Mr. R. closed it on Constable Baird. She did not hear what the officer said toMr. R. or what Mr. R. said to the officer. She heard a loud banging on the door and went to the window and saw the police vehicle withthe emergency lights. She went and answered the door. She says the officer immediately placed his foot on the threshold of thedoorway so she could not close the door and she did not attempt to do so. Constable Baird told her that Mr.

R. needed to come andordered her to “go get him. [97] Ms. H. went to the bathroom door. She asked Mr. R. what was going on and tried to persuade him to come out. He refused todo so. She returned to the front door, which was open with Constable Baird still standing with his foot on the threshold. She toldConstable Baird that Mr. R. was in the bathroom and she could not get him to come out. Constable Baird again ordered her to go tellMr. R. he had to come. Ms. H. returned to the bedroom and opened the ensuite bathroom door. She again tried to persuade Mr. R. tocome out but he refused to do so. Ms.

H. left the bedroom and was shocked to see Constable Baird standing at the top of the stairs intheir living area. She does not believe that she had invited him in, because if she had, she would have not been so shocked to see himstanding there. [98] Ms. H. said Constable Baird started towards her down the hallway. She instructed him to stop. She wanted to shut thechildren’s bedroom doors. He paused while Ms. H. closed the children’s bedroom doors. Constable Baird walked down the hallwayand Ms. H. gestured towards their bedroom to indicate where Mr. R. was to be found. Ms. H. went to her daughter who had woken up.

Meanwhile, Constable Baird when into the bedroom and the ensuite bathroom. Ms. H. could hear scuffling. She then saw ConstableBaird lead Mr. R. down the hallway to the front door landing. Constable Baird told Mr. R. he was under arrest for sexual assault andread Mr. R. his rights by the door. He asked him if he understood, and Mr. R. said “No.” [99] Constable Baird never told Ms. H. she did not have to allow him in the house. Assessment of Credibility in Respect to Count 2 [100] Constable Baird says he did not place his foot on the threshold. He says that when Ms.

H. answered the door, she wanted toknow what was going on and invited him into the residence. Mr. Pakenham argues Constable Baird’s evidence that Ms. H. invited himinto the home is unbelievable. There is no mention of Constable Baird having being invited into the residence in his officer’s notes orReport to Crown Counsel. Mr. Pakenham accuses Constable Baird of manufacturing this evidence to justify his warrantless arrest whenhe learned of Mr. R.’s Charter application on the first day of trial. [101] I do not find that Constable Baird manufactured evidence that Ms. R. had invited him into the home.

Constable Baird wasclearly of the view he did not need a warrant or an invitation to enter the R. home to arrest Mr. R. Constable Baird believed that becauseMr. R. was resisting arrest he was committing an ongoing offence authorizing the police to ender the residence in hot pursuit. Moreover,Constable Baird was also concerned Mr. R. was destroying evidence while hiding in the bathroom. Despite this concern, ConstableBaird did not seek or obtain a warrant with respect to Mr.

R.’s cell phone notwithstanding the Facebook messages and allegedpornography. [102] Although I do not find Constable Baird manufactured evidence, I prefer Ms. H.’s version of their encounter over that ofConstable Baird’s. This encounter was an extraordinary event in Ms. H.’s life. She said after Mr. R. was arrested she made a mentalnote about the events out of concern she may be a witness. Her evidence was detailed, plausible and internally consistent.

As ConstableBaird did not record his reasons for the warrantless entry at the time or even in the Report to Crown Counsel, I am less confident in hisability to accurately recall the event. Moreover, Constable Baird did not offer any reason for not obtaining any warrants. [103] As it was February 2, 2016, in Prince George, and Mr. R. had just been watching television in his living room with his wife forthe evening, I believe he was in stocking feet and did not go beyond the threshold of his front door. Legal Principles [104]

Section 129(

a) of the Criminal Code makes it an offence to resist or wilfully obstruct a peace officer in the execution of his duty. [105] The elements of the offence of obstruction were articulated by Justice Paciocco in R. v. Yussuf, 2014 ONCJ 143 ,[2014] O.J.

No. 1487, as follows: Element 1 - There must be peace officer who is in the execution of a lawful duty as a peace officer; Element 2 - The accused person must know or be wilfully blind to the fact that this person is a peace officer and must know or bewilfully blind to the act the officer is executing; Element 3 - The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accusedperson constituting a failure by the accused to comply with a legal duty; Element 4 - That act or omission must make it more difficult for a peace officer to carry out their duties; and Element 5 - The accused person must intend to make it more difficult for the police to execute their duty.

Cited by Judge Malakoe R. v. Robert John McFadden, 2016 NWTTC 15 , at para. 22. Also see: R. v. Blackwell, 2007 BCSC1240 and R. v. Glowach, 2011 BCSC 241 . [106] There is no contest that when he arrived at the R. home on the evening of February 2, 2016, Constable Baird was a “peaceofficer” as defined in s. 2 of the Criminal Code. Mr. R. admits he knew Constable Baird was a police officer. [107] The threshold issue in this Count is whether Constable Baird was in the legal execution of a lawful duty as a peace officer. Officer Baird had gone to arrest Mr. R. at his home without a warrant. Constable Baird relies on s. 495(1)(

a) and (

b) of the CriminalCode which states: Arrest without warrant by peace officer 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence; (

b) a person whom he finds committing a criminal offence; [108] Constable Baird testified that upon receiving the statement of K.L.G. on February 1, 2016, he had reasonable grounds to believeMr. R. had committed the indictable offence of sexual assault. Mr. R. does not contest that Constable Baird had reasonable grounds toarrest him, but rather, Constable Baird did not have legal authority to arrest Mr. R. in his home without a warrant nor did he have legalauthority to search Mr. R.’s home or cell phone.

In short, Constable Baird had not sought nor obtained nor attempted to seek or obtainany warrants for any purpose. [109] The leading issue on whether the Constable Baird needed a warrant to arrest Mr. R. in his home is R. v. Feeney, (SCC). In Feeney, a majority of the Supreme Court held that notwithstanding the power of a police officer to arrest a person for anindictable offence without a warrant under s 495(1), generally a warrant is required to make a lawful arrest in a dwelling house. [110] Parliament responded to Feeney by with ss. 529 to 529.5 of the Criminal Code.

Sections 529 and 529.1 allow police to obtain awarrant to enter a dwelling to arrest a person (a “Feeney warrant”).

Section 529.3(2) allows a police officer to enter a private dwellingwithout a warrant in the following “exigent circumstances”. Exigent circumstances

(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer (

a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to anyperson; or (

b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-houseand that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [111]

Section 2 of the Criminal Code defines dwelling house as follows: dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (

a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and (

b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence; [112] Curtilage is “the land or yard adjoining a house, usually within an enclosure”: R. v. Le (T.D.), 2011 MBCA 83 , para.83 citing Black’s Law Dictionary, 9th ed. Also see: R. v. Beune, 2005 BCPC 175 , para. 31. The definition of “dwelling house”includes only part of what the dictionary defines as a curtilage.

[113] In addition to the statutorily enumerated exigent circumstances, a police officer is empowered by common law to enter adwelling-house and arrest a suspect without a warrant when in “hot pursuit”, meaning the officer “is literally at the heels of a suspect atthe moment the suspect enters a dwelling house”: R. v. Puyenbroek, 2007 ONCA 824 at para. 32, citing R. v. Macooh, (SCC). [114] It is uncontested that prior to going to Mr. R.’s home, Constable Baird had no warrant to arrest Mr. R. in his home or otherwise. There were no exigent circumstances to justify a warrantless arrest under s 529.3.

There was no need for immediate action for the safetyof the police or to secure and protect evidence of a crime. Constable Baird made no effort to obtain a warrant. On February 2, 2016,when Constable Baird went to arrest Mr. R., the prohibition against a warrantless arrest without consensual entry into his privatedwelling was engaged. [115] The Crown argues Constable Baird had an implied invitation to approach the door of Mr. R.’s residence to knock on the door. By responding to Constable Baird’s knock and opening the door, Mr.

R. made himself available for arrest and a Feeney warrant for hisarrest was unnecessary. [116] The Crown argument engages the “implied invitation to knock principle” articulated in R. v. Evans, (SCC). This principle a described in R. v. Parr, 2016 BCCA 99 as follows: [2] In Evans, the Court held that the police have an implied licence to approach the door of a residence to knock. Occupants of ahome are deemed to have waived their reasonable expectation of privacy for defined purposes.

Where the police knock for the solepurpose of facilitating communication with an occupant, they act within the scope of the implied invitation. In these circumstances, noconstitutionally recognized search occurs because the entry does not intrude upon the occupant’s reasonable expectation of privacy. Thewaiver of privacy rights embodied in the implied invitation extends no further than is required to achieve this purpose.

Where theconduct of the police goes beyond that which is permitted by the implied licence to knock, the conditions of that licence are breachedand the police approach the dwelling as an intruder. [3] A critical component of the analysis required by Evans is, therefore, determination of the police officer’s purpose or intention whenthey enter upon private property and approach a person’s home to knock on their door.

If the approach is motivated by an investigativepurpose, the conduct exceeds the scope of the implied licence to knock principle and s. 8 of the Charter is engaged. [117] In this case Constable Baird’s purpose for entering onto Mr. R.’s private property and approaching his home to knock on hisdoor was to arrest him for sexually assaulting K.L.G. When Mr. R. answered the door Constable Baird told him immediately he wasunder arrest. Mr. R. never stepped beyond the threshold of his front door. [118] Constable Baird did not ask Mr. R. for permission to enter his home and Mr.

R. gave no such permission. [119] A somewhat similar situation arose in R. v. Ellison, 2010 NSPC 78, in which Judge Williams concluded the accused had notunlawfully or wilfully resisted or obstructed the police in the lawful execution of their duty when the officers went to his home to arresthim without a warrant. I concur with the comments found in R. v. Sulyk, (SK PC), wherein Judge Whelan for theSaskatchewan Provincial Court said : 4.

The Accused was entitled to come to the door and say to the officers, words to the effect; I’m not prepared to leave my home andunless you have a warrant to arrest me inside my dwelling; you will have to leave. (see: R. v. Meier, 2009 SKPC 30 , at para. 23) [120] In my view, by attending at Mr. R.’s home for the express purpose of arresting him without legal authorization, Constable Bairdhad exceeded his implied licence to knock on Mr. R.’s door. Constable Baird was not in engaged in the lawful duty as a peace officer.

Accordingly, the Crown has failed to prove an essential element of the offence of resisting or wilfully obstructing a peace officer in theexecution of his duty. Mr. R. is not guilty of Count 2 for obstructing or resisting a police officer in the execution of his duties. DECISION ON THE CHARTER APPLICATION Introduction [121] By notice of application filed December 23, 2016, Mr. R. seeks a judicial stay of proceedings pursuant to s. 24(1) of theCanadian Charter of Rights and Freedoms. He contends Constable Baird infringed his rights guaranteed under ss. 7, 8 and 9 of whichstate:

Section 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice.

Section 8 Everyone has the right to be secure against unreasonable search or seizure.

Section 9:

Everyone has the right not to be arbitrarily detained or imprisoned. Applicable Legal Principles [122]

Section 8 through 14 of the Charter are specific examples in which a person’s right to life, liberty and security of personprotected under s. 7 would be violated in a manner which is not in accordance with the principles of fundamental justice: Re B.C. MotorVehicle Act, (SCC), at para. 28. A breach of any of ss. 8 through 14 will constitute a breach of s. 7, although theconverse is not true because s. 7 provides residual protection for circumstances which do not fall within the parameters of ss. 8 through14.

A Charter complaint falling squarely within one of the enumerated rights in ss. 8 through 14 should be analyzed under that provisionrather than under s.7: see: R. v. Rodgers, 2006 SCC 15 , at para. 23. [123]

Section 7 of the Charter protects against two categories of abuse of process in a criminal proceeding: a. where state misconduct compromises the fairness of a trial (the main category); and b. where state misconduct “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”(the “residual” category). [124] The focus of the main category is on the effect of the impugned conduct on trial fairness.

At this first stage the Court considers“whether the accused’s right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct ofthe trial; in other words, the concern is whether there is ongoing unfairness to the accused”: R. v. Babos, 2014 SCC 16 , at para.34. [125] Under the second or “residual category”, the accused need not show prejudice to trial fairness.

The key question under thiscategory is “whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whetherproceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, para. 35. [126]

Section 8 protects people from unreasonable intrusions on privacy by the state. in R. v. McGuffie, 2016 ONCA 365 ,Doherty, J.A. of the Ontario Court of Appeal states: The constitutional protection in s. 8 rests on the fundamental belief that privacy, in its various manifestations, is an essential preconditionto individual liberty and security of the person.

State intrusion upon privacy must be reasonable; that is, any law authorizing an intrusionmust be reasonable and the manner in which the intrusion is effected must be reasonable . . . [citations omitted] [127] Privacy rights generally require the police to obtain prior judicial authorization to enter a dwelling in order to arrest a person: R.v. Feeney, (SCC). [128]

Section 9 protects people from having their liberty curtailed except in accordance with the principles of fundamental justice. InR. v. Grant, 2009 SCC 32 , at para. 44, the Supreme Court defined the meaning of detention for the purposes of s. 9 of theCharter as follows: Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. [129] The Supreme Court in Grant goes on to hold that a detention is arbitrary within the meaning of s. 9 if it is not legally authorized. Issue #4: Did Constable Baird infringe Mr. R. rights guaranteed under sections 7, 8 and 9 of the Charter of Rights and Freedoms? [130] In support of his application, Mr. R. relies on the evidence tendered at trial. [131] Mr.

Pakenham submits that Constable Baird infringed Mr. R.’s ss. 8 and 9 Charter rights when he arrested him in his homewithout a warrant. Mr. Pakenham further argues that by testifying falsely at trial that Ms. H. had invited him into the home, ConstableBaird infringed on Mr. R.’s s. 7 Charter rights. Unlawful Arrest [132] Constable Baird testified he was entitled to enter the R. residence because the following circumstances permitted him to effecthis arrest in his home: a. he was in continuous and hot pursuit of Mr. R. who was resisting or obstructing a peace officer;

b. he sought to prevent imminent loss or destruction of evidence; c. he had the express or implied consent of J. H., one of the homeowners. [133] I have already found Mr. R. was not obstructing or resisting Constable Baird when he refused to cross his threshold to facilitatehis warrantless arrest outside his home. Because he had no reasonable grounds to arrest Mr. R. for an offence under s. 129(a), ConstableBaird cannot avail himself of the hot pursuit exception. Furthermore, the fact that he waited outside and demanded Ms. H. go and getMr.

R. suggests Constable Baird did not consider himself in “hot pursuit” of Mr. R. [134] I would have thought if Constable Baird was truly concerned about the imminent loss or destruction of evidence, he would haveobtained a warrant for the search and seizure of Mr. R.’s cell phone at the outset. Constable Baird had been aware of the text messageswhich comprise Exhibit 1 in these proceedings since K.L.G. gave her statement on February 1, 2016. He was likely aware K.L.G.alleged Mr. R. showed her pornography on his cell phone. There is no evidence the police ever sought or obtained a warrant for tosearch Mr.

R.’s cell phone. [135] Neither Mr. R. nor Ms. H. expressly invited Constable Baird into their home. The question remains whether Ms. H. implicitlyinvited Constable Baird into the home. [136] An invitation to a police officer to enter a home to arrest one of its owners requires more than mere acquiescence or compliance:R. v. Atkinson, 2012 ONCA 380 . In R. v. Borden, , the Supreme Court of Canada held that valid consent mustbe an informed consent. Constable Baird did not tell Ms. H. why he was at her home. He simply directed her to go and get Mr. R. Henever told her she could refuse him entry.

It is difficult to see how such conduct could provide Ms. H. with an adequate informationalbasis upon which she could relinquish her right to privacy: see R. v. Puyenbroek, 2007 ONCA 824 , para.39. [137] To the extent Constable Baird relies on Ms. H.’s welcoming hand gesture as an invitation to enter the residence, I accept Ms.H.’s evidence that she only made a pointing gesture towards her bedroom when Constable Baird was already in the hallway. ConstableBaird entered Mr. R.’s home without a warrant to arrest him when he had no legal authority to do so. There were no exigentcircumstances in play.

He offered no reason for attending at Mr. R.’s home without a warrant. I assume he expected Mr. R. tocooperate and spare him the bother of obtaining a warrant. When Mr. R. chose not to step outside his residence to facilitate hiswarrantless arrest, Constable Baird ordered Ms. H. to go get Mr. R. When she failed to do so, Constable Baird went inside the home,retrieved Mr. R. from the bathroom, handcuffed him and brought him entirely under his control. I do not find Constable Baird’sexplanations as to why he never sought a warrant reasonable. [138] I find apposite the statement of Feldman J.A. in R. v.

Puyenbroek, 2007 ONCA 824 , 32. Normally, once an officer has reasonable and probable grounds to arrest a person in a dwelling place, the officer can proceed toobtain a warrant, including a telewarrant if necessary, before entering the home. However, if there are exigent circumstances, the officermay proceed without a warrant.

If there are no exigent circumstances, it is difficult to imagine why an officer could not proceed toobtain the warrant, outside of a "classic" situation of hot pursuit, in which the officer is literally at the heels of a suspect at the momentthe suspect enters a dwelling-house: Macooh, supra at 491. False testimony [139] Mr. R. claims Constable Baird manufactured evidence by testifying falsely that Ms. H. invited him into the home. He bears theburden of proving this allegation on the balance of probabilities. In my view he has not satisfied that burden. The analysis of Mr.

R.’sCharter complaint must therefore proceed under s. 8. Decision on Issue #4 [140] I find Constable Baird’s conduct infringed Mr. R.’s s. 7, 8 and 9 Charter rights as a follows: a. by entering Mr. R.’s residence to effect his arrest without legal authority and without consent, the officer infringed Mr. R.’s rightunder s. 8 to a reasonable expectation of privacy; b. by handcuffing and forcibly removing Mr. R. from his home without legal authority, the officer infringed Mr. R.’s right under s.9 not to be arbitrarily detained; c. the infringement of Mr.

R.’s ss. 8 and 9 rights are automatically a violation of his right under s. 7 to liberty and security of person. I do not find an independent breach of Mr. R.’s s. 7 rights arising from Constable Baird’s testimony at trial. Issue #5: If Mr. R.’s Charter rights were infringed, what is the appropriate remedy? [141] Constable Baird’s conduct was more than a mere technical breach. Mr. R. has the highest expectation of privacy in his home. In R. v. Silveira, (SCC), Cory J. stated at para. 140:

... There is no place on earth where persons can have a greater expectation of privacy than within their “dwelling-house”. . . Cory J. went on to say at para. 148, in part: ... It is hard to imagine a more serious infringement of an individual’s right to privacy. The home is the one place where persons canexpect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents ofthe state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free anddemocratic society.

To condone it without reservation would be to conjure up visions of the midnight entry into homes by agents of thestate to arrest the occupants on nothing but the vaguest suspicion that they may be enemies of the state. This is why for centuries it hasbeen recognized that a man’s home is his castle. . . Section 24(1) of the Charter sets out its remedial provisions, which state: Enforcement of guaranteed rights and freedoms

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [142] This remedial provision must be given a broad and purposeful

interpretation in order to provide an effective and responsiveremedy for Charter violations: R. v. Thim, 2015 BCSC 1677, at para. 57, citing Henry v. British Columbia (Attorney General), 2015SCC 24. [143] The Crown opposes any remedy to Mr. R. on the basis there was no nexus between the breach of Mr. R.’s Charter rights and theinvestigation and the gathering of evidence against him for the offence of sexual assaulting K.L.G. (See: United States of America v.Romano, 2016 BCCA 444 , at para. 7). Mr.

Pakenham concedes Constable Baird’s unlawful arrest had no temporal or causalconnection with obtaining evidence adduced in these proceedings. For this reason Mr. R. does not seek a remedy under s. 24(2) of theCharter for the exclusion of evidence, but rather under s. 24(1) for a stay of proceedings. [144] The Defence’s application for a stay of proceedings is brought under the residual category of the s. 7 abuse of process doctrineon the basis of police misconduct. Although this court has jurisdiction under s. 24(1) to direct a judicial stay of proceedings, such aremedy is extraordinary. In R. v.

Babos, 2014 SCC 16 , Moldaver J., for the majority, stated at para. 30: A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, atpara. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and thepublic is deprived of the opportunity to see justice done on the merits.

In many cases, alleged victims of crime are deprived of their dayin court. [145] The test for a stay of proceedings under s. 24(1) is the same whether the abuse is said to impact trial fairness or falls within the“residual” category. A stay is only available where: (1) the prejudice caused by the abuse will be manifested, perpetuated or aggravatedthrough the conduct of the trial, or by its outcome; and (2) there is no other remedy available that is reasonably capable of removing thatprejudice (Babos, para. 32).

Where uncertainty or doubt exists about the appropriateness of a stay of proceedings after steps (1) and (2)have been applied, the court is required to balance the interests in favour of granting a stay against the interests of society in a finaldecision on the merits (Babos, para. 32). [146] The Crown argues that in those rare cases where the court has directed a stay under the residual category, the police misconductgenerally involved excessive use of force: R. v. Bellusci, 2012 SCC 44 , para. 31. In most cases this force resulted in seriousinjuries to the accused. Mr. R. was not injured in the arrest proc

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