R. v. C.R.F., 2018 BCPC 177

Citation: R. v. C.R.F. 2018 BCPC 177 Date: 20180710 File No: 60496-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. C.R.F. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: J.A. Lawton Counsel for the Defendant: A. Glouberman Place of Hearing: Richmond , B.C. Date of Hearing: Feb. 15 - 17, May 9 - 12 & 15, Nov. 8, Dec. 1, 6 & 7, 2017; March 2, May 31, 2018 Date of Judgment: July 10, 2018

[ 1 ] The Accused has been charged with sexual assault of his stepdaughter, K.E.S., contrary to s. 271 of the Criminal Code . [ 2 ] This trial has taken place over 13 days stretching from February 15, 2017 to March 2, 2018. No witnesses were heard on November 8 and December 7, 2017. On November 8, 2017, former Defence Counsel brought the case forward for an application to adjourn the December 2017 dates and, if unsuccessful in that application, to withdraw as counsel. Both of those applications were based on the Accused’s inability to pay his legal fees, and were dismissed.

On December 7, 2017, former Defence Counsel made an application to withdraw as counsel for ethical reasons. That application was granted. The Accused then retained new counsel, Ms. Glouberman, who has taken over conduct of the remainder of the trial. [ 3 ] Final submissions were presented on May 31, 2018 and adjourned to today for decision. Much of the evidence heard at this trial related to the Accused’s state of intoxication and whether the Complainant resembled her mother in appearance.

That evidence related to theories of the Accused’s defence which were not subsequently pursued by the Accused’s new counsel. [ 4 ] The sole issue before the Court is whether the evidence in this trial has proven the guilt of the Accused beyond a reasonable doubt. The only direct evidence incriminating the Accused is the testimony of the Complainant.

The Accused submits that because of the frailties of that evidence, including both internal and external inconsistencies, and the Complainant’s motive to have the Accused deported from Canada, the evidence presented by the Crown has failed to meet that burden. [ 5 ] The offence is alleged to have occurred during the early morning hours of January 2, 2016. The Complainant was 21 years old and living in a basement suite with her mother, D.R.F.; her stepfather, the Accused; and her nine-year-old half-brother, M., who was away at the time in the United States, visiting his father.

Evidence of the Complainant [ 6 ] According to the Complainant, she was in the kitchen making a coffee when her mother and her stepfather, the Accused, returned home from a party celebrating the New Year at a friend’s house. She described the Accused as being “wasted” and “very, very drunk” . She described the Accused as swaying and appearing disoriented as he entered the residence, inadvertently walking into a freezer and knocking down a dog leash hanging by the door to the ground.

She described the Accused bending over very slowly to pick the leash back up, as though making an effort to keep his balance. [ 7 ] She testified that the Accused then went directly to the bedroom he shared with her mother. Her mother, according to the Complainant’s evidence, appeared very “bubbly” . She told the Complainant to “leave C. alone” because even though he had been drinking, “he was in a good mood” .

She then also went to her bedroom. [ 8 ] The Complainant testified that she was “scared, nervous and anxious” and “very upset” at seeing the Accused intoxicated, because of an incident that had occurred the week before, on Christmas Eve or in the early morning hours of Christmas Day, when the Accused, while in an angry and intoxicated state, physically assaulted her mother.

After she told her mother that she wanted to call the police, her mother talked her out of it, promising that the Accused would henceforth abstain and “get help” for his drinking. [ 9 ] The Complainant testified that after her mother and stepfather had gone to their bedroom on January 2, 2016, she went to the bathroom where she was cutting her hair and talking to her friend D. on Skype from her iPod Touch. While she was doing that, the Accused walked into the bathroom completely naked with an erect penis, and began urinating into the toilet.

The Complainant testified that she was shocked and quickly averted her eyes. She asked, “Oh, do you need to use the bathroom?” and quickly went to her bedroom. The Accused’s only response was to giggle while he continued urinating as she rushed out of the bathroom. [ 10 ] The Complainant testified that she was still on the phone with her friend D. when she got to her bedroom, and said to her, “My gosh, he’s walking around the house naked” . D. made light of the situation, which made the Complainant feel better, but later said she did not believe that had happened. The Complainant then told D., “I will show you” .

She then turned the Skype camera on and pointed it to the doorway of her bedroom, expecting the Accused to walk past it naked. [ 11 ] However, according to the Complainant, the Accused stopped at her doorway and turned to face her, now wearing red boxer shorts. He then walked into her bedroom and hugged her. The Complainant testified that she instinctively said, “Oh, do you want a hug” , and put her arms “awkwardly around him” . According to the Complainant, the Accused then lowered his head and kissed her, open-mouthed, on her neck.

He then grabbed her right wrist, wrapping his fingers of his left hand around it, raised it, and then lowered it to his penis which was erect. The Complainant testified that as soon as that happened, she shoved him away and said, “Get the fuck off me” , to which he responded, “Sorry, K., sorry” , and returned to his bedroom. [ 12 ] Her friend, D., hearing the commotion, asked what was happening. After the Complainant told her, D. told the Complainant to pack her things and told her that she was coming over to pick her up. The Complainant described herself as feeling “really stressed out” .

D. came to the residence, picked the Complainant up and drove her to her boyfriend’s home where she was staying. The Complainant has not lived in her mother’s home since that day. [ 13 ] In cross-examination, the Complainant acknowledged that she disapproved of the Accused as her mother’s husband as a result of the incident on Christmas Eve, and because she had learned from D., who could understand some Spanish, that the Accused had been saying derogatory and insulting things to and about her mother. She also acknowledged speaking to D. about calling the police on the Accused after the Christmas Eve incident.

Defence Counsel put to her that such conversations between the Complainant and D. about calling the police to report the Accused had occurred multiple times between Christmas Eve 2015 and January 2, 2016. The Complainant replied it had occurred only once. The Complainant also acknowledged talking to D. about getting the Accused deported in order to protect her mother, because she felt the Accused was a dangerous person. [ 14 ] The Complainant also acknowledged in cross-examination that she had spoken about the incident of January 2, 2016 with B.L. and H.G. on a number of occasions.

She agreed with Defence Counsel’s suggestion that there were inconsistencies between what she

had told Ms. H.G. about the incident, and what her mother reported that Ms. H.G. had told her she said. Ms. H.G. had reported to the Complainant’s mother that the Complainant had told her the Accused had no pants on when he entered her bedroom. The Complainant denied telling Ms. H.G. that. She testified that she had not said anything to Ms. H.G. about the Accused’s pants when he entered her bedroom. [ 15 ] In cross-examination, Defence Counsel put to the Complainant that when she spoke to B.L. on January 3 or 4, 2016, she had initially told Ms.

B.L. that the Accused had walked into the bathroom holding his red boxers in his hand, and then entered her bedroom wearing them. The Complainant answered that she did not remember saying that to Ms. B.L. Defence Counsel then put to the Complainant that later, during that same conversation, she had told Ms. B.L. that the Accused was naked when he entered her bedroom. The Complainant replied, “As in no shirt, no pants, no socks, just his underwear” . When Defence Counsel asked her if she remembered telling Ms.

B.L. that the Accused was naked when he entered her bedroom, she replied, “I don’t remember that.” [ 16 ] Later in cross-examination, the Complainant testified that if she had told Ms. H.G. or Ms. B.L. that the Accused was naked or had no clothes on when he entered her bedroom, she would have meant that he was not wearing “basic clothing” , as in “no shirt and no pants” . She maintained in cross-examination that the Accused was wearing his red boxer shorts when he entered her bedroom. [ 17 ] When Defence Counsel suggested to the Complainant that she had a conversation with Ms.

B.L. on January 3 or 4, 2016 in which she described a decision she and D. had made to try to get the Accused deported, the Complainant denied having that conversation with Ms. B.L. EVIDENCE OF THE ACCUSED [ 18 ] The Accused testified on his own behalf. He testified that on the evening of January 1, 2016, he and his wife had gone to a friend’s house for a dinner party to celebrate the New Year, where he consumed a large amount of beer and tequila.

He testified that he had become so intoxicated that he was dizzy and felt he might fall down. [ 19 ] The Accused testified initially that he could remember nothing about what happened after 1:00 a.m. on January 2, 2016, except his wife telling him to go home. The Accused testified that he could not remember how he got home from the dinner party. His initial testimony was that he remembered nothing of what had occurred between the time his wife suggested that he needed to go home, and waking up the next day.

He testified that when he awoke the next morning, he asked his wife what had happened during the night, and his wife told him that she had taken him to bed. [ 20 ] Later in his evidence, after some prompting and the same question being asked several times, the Accused said he remembered getting up twice from the bed during the night to go to the bathroom. [ 21 ] In cross-examination, the Accused remembered much more about the early morning hours of January 2, 2016.

He testified that he had a specific recollection of losing his balance the first time he got up to go to the washroom and that he was still so drunk he could not stand up straight. Later in cross-examination, the Accused remembered more details regarding the second time he got up to go to the washroom. He testified that he was now less drunk and had better balance. On this trip to the washroom, he saw that the front door to the residence was open about five centimetres and he could see out to the street.

He testified that he looked through the door opening and saw someone who looked to be the Complainant with another person that he did not recognize, outside the residence. The Accused testified that he saw these two people facing each other but could not tell if they were talking. After observing them for about a minute, the Accused closed the door and locked it.

According to the Accused’s evidence, he did not check the Complainant’s bedroom to see if she was there, did not speak to the person he thought to be the Complainant, and did not ask her if she had a key before closing and locking the door. [ 22 ] The Accused testified that he owned one pair of red boxers and that he had put them on before going to the party on January 1, 2016.

Both the Accused and his wife testified that he was still wearing the red boxer shorts when he woke up later on the morning of January 2, 2016. [ 23 ] When Defence Counsel asked the Accused about the Complainant’s testimony regarding the events of January 2, 2016, the Accused testified that he had no memory of doing those actions. EVIDENCE OF D.R.F. [ 24 ] D.R.F., the Accused’s wife, testified for the Defence. Most of her evidence related to how much alcohol the Accused had consumed on the night of January 1 and in the early morning hours of January 2, 2016. Mrs.

D.R.F. confirmed that a physical altercation between Accused and her had occurred on Christmas Eve 2015. Her evidence was that she had thrown a shoe at the Accused and the Accused responded by hitting her on the leg. Mrs. D.R.F.’s evidence in chief was that the Accused was extremely intoxicated by the time they left the dinner party in the early morning hours of January 2, 2016. [ 25 ] According to Mrs. D.R.F., the Accused’s speech was minimal towards the end of the party. The Accused needed assistance to walk down the stairs to the car. The host and Mrs.

D.R.F. had to walk on either side of the Accused, supporting him, to get him into the car. Despite Mrs. D.R.F. asking him not to, the Accused fell asleep in the passenger seat and was still asleep when they arrived. When they arrived home, the Accused appeared confused as to how they had gotten home. [ 26 ] Mrs. D.R.F. went to the passenger side, opened the door, undid the Accused’s seat belt and tried to pull him out, tugging on his jacket a number of times. The Accused protested that he wanted to sleep in the car. Mrs. D.R.F. testified that the car reeked with the odour of liquor. Eventually, Mrs.

D.R.F. got the Accused out of the car and, with her arm around him and the Accused leaning on her, was able to get the Accused into the residence. According to Mrs. D.R.F., the Accused then walked down the hallway in the direction of their bedroom while she had a conversation with the Complainant. [ 27 ] However, when she went to their bedroom and turned on the light, the Accused was not in the room. Mrs. D.R.F. walked back a few steps up the hallway and saw the Accused sitting on a couch in the living room. When she asked what he was doing there, the

Accused sleepily told her that he was watching TV, even though the television had not been turned on. Mrs. D.R.F. told the Accused that he needed to go to bed. She then managed to get the Accused off of the couch and into their bedroom, in the same way as she had earlier managed to get him out of the car and into the house. [ 28 ] However, according to Mrs. D.R.F.’s evidence, once inside their bedroom, the Accused could not make it onto the bed. He fell to his knees beside the bed, with his head face-down on the mattress. Mrs.

D.R.F. testified that she had great difficulty getting the Accused onto the bed and undressed. She testified that she had to speak loudly with her mouth inches from the Accused ear in order to get any response. The only verbal responses she received from him were grunts. She described that it felt as though she was working with “dead weight” but eventually was able to get him onto the bed and undressed down to his red boxers. [ 29 ] Mrs. D.R.F. confirmed that the Accused owned only one pair of red boxers. According to Mrs.

D.R.F., the Accused passed out asleep on the bed and that was the last she time she saw him until they awoke the next morning. EVIDENCE OF H.G. [ 30 ] H.G., a friend of the Accused’s wife, D.R.F., testified for the Accused. She testified that the Complainant and her own five children grew up together and she regarded the Complainant like one of her own children. She testified that she had picked up the Complainant from D.’s home on January 3, 2016 and transported her to her own home where the Complainant resided until the end of May 2016. [ 31 ] Ms.

H.G. testified that while in her car, driving back from D.’s home, the Complainant described “her version of what happened” on January 2, 2016. According to Ms. H.G., the Complainant told her that Mrs. D.R.F. and the Accused had come home in the middle of the night after they had been out drinking. The Complainant was in the washroom cutting her hair and talking on Skype with D. The Accused entered the washroom drunk, causing her to leave and go to her bedroom with D. still on Skype.

The Complainant was having a conversation with D. about how drunk the Accused was, when the Accused entered her bedroom completely naked with an erection and came to give her a hug. According to Ms. H.G., the Complainant had told her that the Accused had his boxers on when he was in the washroom. The Complainant gave the Accused a hug, thinking he would go away, and the Accused then kissed her on the neck. The Complainant then pushed him away and told him to get out of her room. According to Ms. H.G., that was the conversation she had with the Complainant about the events of January 2, 2016.

EVIDENCE OF B.L. [ 32 ] B.L. is a friend of the Complainant’s mother, D.R.F., and has known the Complainant since she was five years old. According to Ms. B.L., in the period between December 2015 and early January 2016, she and the Complainant were very close and confided in each other. She said she considered the Complainant like her own daughter.

Later, describing her feelings about the Complainant, she stated, “absolutely love that child” . [ 33 ] She testified that the Complainant had told her, that she and her friend D. had come up with a plan for getting the Accused deported from Canada, because the Accused had been acting disrespectfully towards the Complainant’s mother. [ 34 ] Ms. B.L. initially testified that she and the Complainant had not had any conversations about the Accused between Christmas Eve, 2015 and January 2, 2016.

She later corrected that and described the Complainant telling her about the Christmas Eve incident the day after it had occurred. According to Ms. B.L., the conversation where the Complainant told her about the plan to get the Accused deported occurred a few days prior to Christmas of 2015. [ 35 ] On the morning of January 2, 2016, Ms. B.L. received a telephone call from Mrs. D.R.F. who was so hysterical that she was hard to understand. Ms. B.L. drove to Mrs. D.R.F.’s home and learned from her that the Accused had been arrested. Ms.

B.L. testified that their first concern was to try to locate the Complainant, as they did not know where she was, and that they went to the police station to find out what had happened. Ms. B.L. testified that she was very concerned and worried about the Complainant as she had not spoken to her at that point and did not know where she was. [ 36 ] Ms. B.L. later testified that, after receiving the call from Mrs. D.R.F., she went with her to the police station, intending to give a statement that the Complainant and D. had concocted a story about the incident. [ 37 ] Ms.

B.L. testified that she had either one or two telephone conversations about the incident of January 2, 2016 with the Complainant, either on January 3 or 4, 2016. Ms. B.L. testified that the Complainant told her initially that the Accused had come into the bathroom, where she was cutting her hair, completely naked, and later came into her bedroom, still naked, grabbed her hand and placed it on him. According to Ms.

B.L., in the second conversation, the Complainant told her that the Accused entered the bathroom holding his red boxers in his hand and then later entered her bedroom wearing those boxers, where he took her hand and placed it on him with his boxers on. According to Ms. B.L., what struck her about these conversations, which she testified were within hours of each other, was that they were conflicting. [ 38 ] Ms.

B.L. testified that she has continued to have a good relationship with the Complainant and that the Complainant had stayed at her residence for two days over last Christmas of 2017. [ 39 ] In cross-examination, Ms. B.L. testified that she never told the Complainant that she did not believe her allegation about her stepfather’s sexual assault, never questioned her about the different versions of events that the Complainant had told her about the incident, and never asked the Complainant if she had concocted those allegations.

Analysis [ 40 ] I agree with the submissions of both Crown and Defence Counsel that a useful framework for assessing the credibility of witnesses is that provided by Judge A.E. Rounthwaite at paras. 4 and 5 of R. v. Parent , [2000] B.C.J. No. 2772 :

[4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness’ ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence, is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency. Does the witness’ evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the “sense” of the evidence.

When weighed with common sense, does it seem impossible or unlikely? Or does it “make sense”? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessing an accused’s testimony. 7. the attitude and demeanor of the witness. Are they evasive or forthcoming, belligerent, cooperative, defensive or neutral?

In assessing demeanor a judge should consider all possible explanations for the witness’ attitude, and be sensitive to individual and cultural factors, which may affect demeanor. Because of the danger of misinterpreting demeanor, I would not rely on this factor alone.

Analysis of the Complainant’s Evidence [ 41 ] Defence Counsel submits that the Complainant’s evidence is not reliable and not trustworthy because of its external inconsistency with the evidence of both H.G. and B.L., because of its internal inconsistencies, and because of a motive the Complainant had to concoct a story in order to cause the Accused to be deported from Canada. [ 42 ] I will deal with the internal inconsistencies first. Internal inconsistencies are, in my view, serious considerations in the evaluation of the credibility and reliability of a witness’ evidence.

Serious internal inconsistencies are often indicators of an untruthful or unreliable witness. Serious internal inconsistencies, can indicate a witness having difficulty keeping a story straight because they are trying to recount a version they have fabricated instead of events from their memory.

Reality is usually much richer in detail than a story that is made-up. [ 43 ] The Complainant acknowledged in cross-examination the following statements she had made to her friend D.C. in a Facebook exchange between Christmas Eve 2015 and January 2, 2016: The cops told me that unless my mom was a willing victim they can’t do anything about her being hit. Sober he was nice but still had tantrums all the time.

She’s going to learn the hard way. [ 44 ] Defence Counsel submitted that these statements were in conflict with the Complainant’s earlier evidence that she had not reported the Christmas Eve incident to the police prior to January 2, 2016. [ 45 ] However, this potential conflict was never put to the Complainant or to the investigating officer, Constable Chan, in cross- examination.

It is difficult therefore to accept this as evidence of an internal inconsistency when the Complainant was never given the opportunity to explain whether this Facebook exchange with D.C. indicated that she had, in fact, reported the Christmas Eve incident to the police, or whether there was some other explanation for it. [ 46 ] Defence Counsel submitted that the Complainant’s evidence in cross-examination was internally inconsistent with her evidence in direct, when the following exchange occurred, regarding the Accused having hugged her previously: Q On Christmas Eve 2015, Mr. C.R.F. gave you a hug?

A I do not remember. Q I’m going to suggest to you that that there was, uh, Mr. C.R.F. did hug you Christmas Eve 2015. A He has drunk-hugged me before, yes. [ 47 ] Defence Counsel submitted that this evidence was inconsistent with the Complainant’s evidence in direct examination, when the Complainant testified that the only hug she and the Accused had ever exchanged was on Christmas Eve of 2015. That evidence was actually given earlier in cross-examination, not in direct. In any event, I do not interpret this as inconsistent evidence on the part of the Complainant.

Her evidence that the Accused had “drunk-hugged” her before could well have been and, in my view, likely was, referring to the one-time hug on Christmas Eve of 2015. [ 48 ] Defence Counsel submitted that the Complainant testified that she was concerned for her mother’s safety both before and after the 2015 Christmas Eve incident, did not approve of the marriage or of her mother’s choice of husband, thought that her mother could do better, and that all those feelings were amplified by virtue of the 2015 Christmas Eve incident.

Defence Counsel submitted that this evidence was in direct conflict with the Complainant’s earlier evidence that there was no animosity between herself and the Accused prior to the 2015 Christmas Eve incident.

[ 49 ] I have reviewed those portions of the Complainant’s evidence again. I am unable to agree with Defence Counsel’s characterization of this portion of the Complainant’s evidence. That portion of cross-examination, focusing on the incident of Christmas Eve 2015, commences at 2:28:18 of the DARS record of February 17, 2016: Q Since that event you have some animosity towards Mr. C.R.F. for what he did? A Animosity, I think, is a strong word. It was a mix of fear and distrust, distrust of what he would do to my mother in the future. Q And you told Ms.

D.R.F. subsequent to Christmas Eve 2015 that you wouldn’t go to the police if Mr. C.R.F. abstained from becoming intoxicated? A Correct. Q You abstained from calling the police on Christmas Eve 2015 and that’s because you believed that Mr. C.R.F. would not consume alcohol. A Correct. Q You were very upset when you saw what Mr. C.R.F. was doing to your mother. A Correct. Q Since that day you’ve continued to be concerned for your mother’s safety? A Correct. Q And even before Christmas Eve 2015 you, at times, were concerned for Ms. D.R.F.? A Correct. Q And you didn’t particularly approve of her choice of husband?

A Correct. Q And I know that Mr. C.R.F. is in the courtroom, but I want you to be very honest in your answer; you disapproved of their marriage? A Correct. Q You felt that he was not treating Ms. D.R.F. well? A During that time, I did not know him that well. Q I just want to ask you the question again; you thought that Mr. C.R.F. was not treating your mother well. A It was the way they met that disappointed me - at that time. Q When you say “at that time” what time period are you referring to? A When you mentioned “when they got married”. Q You thought, prior to January 2, 2016, you thought that your mother, Ms.

D.R.F. could actually do better in terms of finding a romantic partner? A I agree. Q And that feeling was amplified after the events of Christmas Eve 2015? A Correct. Q Following the events of Christmas Eve 2015 would it be fair to say that you had a disdain for Mr. C.R.F.? A A what? You mean like a dislike? Q Yes. A Correct. [ 50 ] This exchange, in my view, confirms that the Complainant’s safety concerns regarding what the Accused might do to her mother arose after, and because of, the events of Christmas Eve 2015.

Prior to Christmas Eve 2015 the Complainant did, at times, have concerns about her mother, did not particularly approve of her choice of husband and was disappointed about the way she had met the Accused. However, in response to the direct question about whether she felt the Accused was not treating her mother well prior to Christmas Eve 2015, the Complainant’s answer was that she did not know the Accused that well during that time.

The Complainant’s evidence is that she began to dislike the Accused after the incident on Christmas Eve 2015. [ 51 ] What the Complainant acknowledged as being amplified after Christmas Eve 2015, was her feeling that her mother could do

better in terms of finding a romantic partner. The Complainant did not agree that she felt animosity towards the Accused prior to Christmas Eve 2015. In fact, as the above exchange demonstrates, she did not agree that she felt animosity towards the Accused even after Christmas Eve 2015.

She agreed that she disliked the Accused after Christmas Eve 2015 but described the feeling she had towards the Accused after that incident as being one of fear and distrust, rather than animosity. [ 52 ] I will now deal with the Complainant’s external inconsistencies - testimony inconsistent with other, independent, evidence which the Court accepts.

External inconsistencies are more serious where they relate to evidence material to a major issue in the trial and/or where they relate to facts that the court finds to be of such importance that a witness ought reasonably to have remembered them, if their testimony were reliable and credible. Serious external inconsistencies can lead to a finding that evidence is untruthful or unreliable. [ 53 ] Some external inconsistencies are less important. It is not unusual for different witnesses to have differing recollections of the same observed event.

It is not unusual for witnesses to remember some details more accurately and more clearly than other details, particularly when the event was fleeting, stressful, or happened long ago. Sometimes external inconsistencies relate to minor or peripheral details or facts not material to the issues to be decided at trial. [ 54 ] In cross-examination, the Complainant was asked whether D. had asked her for clarification two to five times while preparing her police statement, regarding the words that were used, the location of events, and the sequence of events.

The Complainant answered, “Mainly just the words, she wanted to clarify she understood what had been said” . The Complainant testified that this request for clarification had occurred at her mother’s home before D. had picked her up, and not while D. was preparing her police statement at her boyfriend’s house. [ 55 ] Constable Chan was the only Crown witness other than the Accused. After taking a statement from the Complainant at detachment, she drove her to D.’s boyfriend’s house, where she then took a statement from D.

Constable Chan testified in cross- examination that D. had asked the Complainant for clarification, when she was preparing her statement, with respect to the phrase used by the Complainant when she saw the Accused’s private parts. Constable Chan testified that the request for clarification occurred more than once and that the request occurred at D.’s boyfriend’s house while D. was preparing her police statement. [ 56 ] I accept Constable Chan’s evidence.

I find it to be inconsistent with the evidence of the Complainant with respect to when D. requested clarification from her regarding the alleged offence. [ 57 ] The evidence of the Complainant is also inconsistent with the evidence of H.G. and B.L. with respect to the Accused’s red boxer shorts, at which point he was wearing them, and when he was naked. In my view, these inconsistencies do not detract from the reliability or credibility of the Complainant for reasons which I will provide later, when analysing the evidence of these two witnesses.

ANALYSIS OF THE ACCUSED’S EVIDENCE [ 58 ] There were inconsistencies in the evidence of the Accused that I found troubling. At 2:25:03 p.m. on the DARS recording of May 12, 2017, the Accused testified in chief, that he had drunk 6 to 7 beers at the New Year’s Day party, prior to the dinner being served. Only 10 minutes later, still in direct, at 2:34:54 on the DARS recording, Defence Counsel asked the Accused again, specifically between the time he had arrived at the party and dinner being served, how much beer the he had consumed.

This time, the Accused testified that he had consumed 13, 14 or perhaps 15 beers during that period. [ 59 ] Over the objection of Crown, I allowed Defence Counsel to again confirm with the Accused, over what period of time these 14 or 15 beers were consumed. The Accused confirmed that they were consumed over a period of 1 and 1-1/2 to 2 hours, which would have been the amount of time that elapsed between his arrival with his wife and dinner being served. Still later in direct, the Accused testified that he had consumed 14 to 15 beers during the entire night, which would have been over a period of 6 to 7 hours.

This was, at the time, important evidence, as Defence Counsel had advised the Court of his intention to call expert evidence from a toxicologist to provide opinion evidence on drinking patterns and the effects of alcohol on the Accused. [ 60 ] Towards the end of the day on May 15, 2017, Defence Counsel asked the Accused a number of times, what was the last thing he remembered happening on the night of the New Year’s celebration party. The Accused answered that the last thing he remembered happening was his wife telling him to go home, at some time after 1:00 a.m.

When Defence Counsel asked what happened next, the Accused said he could not remember anything after that. Defence Counsel then asked the Accused what was the next memory he had of that night, the Accused again replied “nothing” . Defence Counsel then asked the Accused what his next memory was of anything after 1:00 a.m. on January 2, 2016. The Accused again said “nothing” . Defence Counsel then asked the Accused if he had any memories from the morning of January 2, 2016.

The Accused answered that all he could remember was asking his wife when he awoke about what had happened during the night. [ 61 ] Defence Counsel asked versions of the same question 3 more times. At that point Crown Counsel objected. Defence Counsel submitted that the Accused was not really answering his question because for the Accused to say he had no memory after 1:00 a.m. on January 2, 2016, would suggest that he had no memory of anything even up to the present date. I allowed Defence Counsel to ask the question one more time phrasing the question in that way.

This time the Accused answered that he remembered twice getting up from the bed. By that point we had reached the end of the day and the trial was adjourned to new dates to be set by the Judicial Case Manager. [ 62 ] The trial resumed on December 1, 2017 with cross-examination of the Accused. At this point, the Accused’s memory of what had occurred between 1:00 a.m. and when he awoke in the morning and asked his wife what had happened during the night, improved dramatically. [ 63 ] The Accused now remembered many details of what had occurred the 2 nd time he went to the washroom.

This evidence was, of course, inconsistent with his earlier evidence, repeated numerous times, that he remembered nothing of what occurred during the night until he awoke the next morning and had to ask his wife what had occurred after they left the party.

[ 64 ] I also found this portion of the Accused’s evidence, that he would lock the door, leaving the Complainant outside with a man he did not know, without checking if she had a key, without speaking to her, and without checking if she was still in her room or not, to not make sense. [ 65 ] The Accused frequently provided answers in direct examination that were unrelated and unresponsive to the questions asked by Defence Counsel. At times the Accused appeared confused by the questions Defence Counsel was asking. After the afternoon break on May 12, 2017, Defence Counsel submitted to the Court that the Accused was having problems with the

interpretation being provided by the Spanish language interpreter. Defence Counsel submitted that the Accused did not understand some of the translation from the English language to Spanish language. Defence Counsel further submitted that the Accused would sometimes have “side conversations” with the interpreter to clarify his answers but the Accused’s statements during these “side conversations” were not being communicated to the Court by the interpreter. [ 66 ] As a result of Defence Counsel’s complaints about the Spanish language

interpretation, I immediately adjourned to the next day of trial and ordered that a new Spanish-language interpreter be provided for the balance of the trial. At the beginning of the next day of trial, Counsel and the Court entered into discussions about how next to proceed. [ 67 ] It was ultimately agreed that the new interpreter, Mr. Churchill-Browne would listen to the DARS recording of the Accused’s evidence from the previous day, alone with only the Court Clerk to assist with the DARS equipment, and make notes of any problems he found in respect of

interpretation. When Court reconvened in the afternoon, a voir dire was declared with respect to the qualifications of the new interpreter. At the conclusion of the voir dire , both Crown and Defence Counsel agreed that the new interpreter, Mr. Churchill- Browne, was qualified and competent, and had expertise, with respect to English-Spanish

interpretation. Mr. Churchill-Browne then testified and provided an opinion as to the

interpretation that had been provided during the Accused’s evidence in chief the previous day. [ 68 ] Mr. Churchill-Browne’s opinion was that the

interpretation provided to the Court during the Accused’s evidence in chief had been provided competently. I then made a finding that that

interpretation provided by the previous interpreter was to the standard expected of competent court

interpretation and that there had been adequate

interpretation provided throughout the trial. [ 69 ] The Accused has never denied any of the incriminating evidence given by the Complainant. None-the-less, given the internal inconsistencies in the Accused’s evidence, the lack of responsiveness of his answers to questions, even in direct, given the lack of any adequate explanation for his confused and unresponsive testimony and given that portions of his evidence did not make sense, I find his evidence not reliable and not credible.

ANALYSIS OF D.R.F. ’ s EVIDENCE [ 70 ] D.R.F.’s evidence also contained a number of troubling inconsistencies. [ 71 ] In cross-examination she agreed with Crown Counsel’s suggestion that the Accused did not communicate the frustrations that he and Mrs. D.R.F. shared about the Complainant not having a job, directly to the Complainant. She testified that the Accused would instead communicate those frustrations to her, to deal with the Complainant on her own. However, minutes later, Mrs.

D.R.F. stated that the Complainant did not like the Accused because the Accused was nagging her and “telling her to get off her butt” . When Crown put the inconsistency to her, Mrs. D.R.F. said “most of the time it was me” . [ 72 ] Also during cross-examination, this exchange occurred between Crown Counsel and Mrs. D.R.F.: Q Now, things changed though, I’m going to suggest to you, around Christmas of 2015, Christmas Eve of 2015, correct? A Yes. Q That was when Mr. C.R.F. had been drinking a lot and was intoxicated and you and he got into an argument and it ended up turning physical, correct? A Yes it did.

Q Isn’t it true that K.E.S. walked in on your husband hitting you. A Yes she did. Q And that understandably, as far as you’re aware, upset your daughter. A Of course. Q Do you believe that your daughter wanted to protect you from Mr. C.R.F.? A At the time, yeah, she was ready to jump on him. Q So, you’re saying that she was so angry she wanted to try and physically assault your husband? A Yes, I am. Q Was that actually when it was taking place?

A That’s actually when it was taking place. [ 73 ] However, about 2 minutes later, still in cross-examination and still talking about the incident on Christmas Eve 2015, after confirming again that the Complainant was upset about the physical assault by the Accused on her mother, this exchange took place:

Q And she wanted to go to the police about it. A mm..hmm Q That’s a yes? A That’s a yes. Q And do you agree, or did it appear to you, that her reasons for doing that were to protect you from this man that she believed was abusing you physically? A No (witness laughing), No. I wish that were the case. [ 74 ] It is difficult to reconcile or make sense of this evidence. Mrs.

D.R.F. acknowledged that the Complainant was so upset by the Accused’s assault of her that she wanted to protect her by physically assaulting the Accused, yet she could not allow herself to accept that the Complainant’s wish to call the police about the incident was also motivated by the same desire to protect her. [ 75 ] Most of Mrs. D.R.F.’s evidence in chief described the Accused’s extreme state of intoxication on the night of January 1 and the early morning hours of January 2, 2016. After Crown Counsel suggested to her that the Accused wasn’t that drunk, Mrs. D.R.F. answered, “I’m telling you he was.

Other witnesses have told you he was”. [ 76 ] When Crown Counsel asked Mrs. D.R.F. how she would know that, she shouted, “I don’t know anything, I’m just assuming” . I have a concern that Mrs. D.R.F. and the other defence witnesses have discussed their evidence before and after testifying at this trial. [ 77 ] Crown Counsel presented Mrs. D.R.F. with a statement she had made to police on January 2, 2016, a few hours after the Accused had been arrested. [ 78 ] In that statement, Constable Chan had asked Mrs. D.R.F. how much alcohol she and the Accused had consumed at the party. Mrs.

D.R.F.’s response to Constable Chan was as follows: I had some wine, he had some beers with some shots. But nobody was staggering, nobody was slurring, nobody. You know what? There’s… the feelings good. We were feeling good. But nobody was like to the point like where we were falling. Nobody passing out, you wouldn’t recollect what was going on. I can remember the whole night. He remembered the whole night. [ 79 ] When Crown Counsel asked her whether she remembered giving those answers, Mrs. D.R.F. answered: Yeah, and I gave those answers based on what I was going off of from that morning.

Nothing seemed out of the ordinary. As I said, this statement to me, I probably shouldn’t have given it. I gave it, but it was premature. Ask me these questions now and I’d give different answers. They wouldn’t have been the same answers. [ 80 ] Crown then put to her: But nothing new has happened since you gave this statement. You’re talking about the same event. [ 81 ] At this point, Mrs. D.R.F. became defensive, evasive and, at times, belligerent.

She argued with Crown Counsel, saying “maybe I’m talking about me” and “don’t blow things out of context” . [ 82 ] Sometimes, a witness’ reaction to an inconsistency being pointed out to her is just as telling as the inconsistency itself. In light of the internal inconsistencies in Mrs. D.R.F.’s evidence, the inconsistency of her evidence with her prior statement to police and her defensive, evasive and belligerent demeanour when confronted with the inconsistency, I find her evidence to be not reliable and not credible. In my view, Mrs.

D.R.F. was testifying as an advocate for the Accused and not as an impartial witness. ANALYSIS OF B.L.’s AND H.G.’s EVIDENCE [ 83 ] I have some concerns regarding the evidence of B.L. which I found confusing and contradictory. [ 84 ] Ms. B.L. testified that she and Mrs. D.R.F. went to the police station the morning of January 2, 2016, after the Accused had been arrested, because they wanted to find out what had happened, and because she was concerned and worried about the Complainant.

She testified that after her conversations with the Complainant on January 3 or 4, 2016 about the incident of January 2, 2016, she reported the content of those conversations to Mrs. D.R.F. When asked by Defence Counsel why she did that, her response was: ‘cause at that point we didn’t know anything of what had happened.

D.R.F. had a young son in the house as well, and we needed to find out if he was safe in being in the same household as C.R.F. [ 85 ] When Crown Counsel put to her in cross-examination that, when the Complainant disclosed to her on January 3 or 4, 2016 what the Accused had done to her on January 2, 2016, Ms. B.L. decided right away that she was making it up and lying, Ms. B.L. answered “not at all”. [ 86 ] However, Ms. B.L. had also testified in cross-examination that when she went to the police station with Mrs. D.R.F. on the morning of January 2, 2016 at Mrs.

D.R.F.’s request, she believed that the Complainant and D. had concocted a story about the Accused for the purpose of causing him to be deported. She testified that she had gone to the police detachment hoping to give a statement to that effect, though she ultimately did not provide a police statement.

[ 87 ] Eventually, Ms. B.L. testified, after more cross-examination, that her earlier evidence - that she did not know what had actually happened on the morning of January 2, 2016 when she first found out about the incident, and still did not know what had happened when she told Mrs. D.R.F. what the Complainant had told her about the incident on January 3 or 4, 2016 - was incorrect. She then testified that she actually did know what had happened, as soon as she heard about the Accused’s arrest. Her explanation for the inconsistency was unconvincing and entirely unsatisfactory. She said: I made a mistake.

I apologize for the time frame difference. The time line is not exactly how I remember it. It’s impossible to remember the exact minute by minute of what happened. [ 88 ] Ms. B.L.’s confusion was not about a “time frame difference” . This was a serious internal inconsistency in Ms. B.L.’s evidence. [ 89 ] Also, Ms. B.L.’s actions have spoken louder than her words. Contrary to her initial evidence, Ms.

B.L. had already decided that the Complainant was lying about the incident and was prepared to tell the police that the Complainant was concocting a story to falsely accuse her stepfather, before she ever spoke to the Complainant about it. Ms. B.L.’s earlier testimony indicating that she had kept an open mind as to what had occurred on January 2, 2016 and as to what the Complainant had told her on January 3 or 4, 2016, was clearly inconsistent with what she had done on the morning of January 2, 2016. [ 90 ] Near to the end of her cross-examination, it was put to Ms.

B.L. that even before her conversations with the Complainant on January 3 or 4, 2016, she did not believe the Complainant’s accusations. Ms. B.L. answered, “Not fully. Not 100%. It was in the middle”. In my view this makes no sense. Her actions on the morning of January 2, 2016 show that she was clearly not in the middle. [ 91 ] Ms.

B.L. testified that the Complainant’s disclosure of a plot to have the Accused deported because of derogatory remarks the Accused had made about her mother, was made to her a few days prior to Christmas of 2015. [ 92 ] In cross-examination, the Complainant was only asked about conversations she had with D. about calling the police on the Accused that had occurred between Christmas Eve 2015 and January 2, 2016 . It was during one of these conversations that the subject of having the Accused deported was discussed.

The Complainant was never asked during cross-examination about any plan that she and D. had considered, prior to Christmas of 2015, about having the Accused deported. She was never asked whether the reason that she and D. had considered calling the police, was actually only because of derogatory and insulting things the Accused had said about Mrs. D.R.F., and not because of the Christmas Eve 2015 incident. [ 93 ] According to the Complainant’s evidence, she had only one conversation with D. about calling the police, and that conversation took place between Christmas Eve 2015 and January 2, 2016.

She was never asked whether, prior to Christmas 2015, she had disclosed to Ms. B.L. that she and D. had a plan for getting the Accused deported. When Defence Counsel put to the Complainant in cross- examination that the purpose of getting the Accused deported was to protect her mother, the Complainant agreed, saying “I think he’s a dangerous person”. [ 94 ] Because these questions were never put to the Complainant in cross-examination, I can give little weight to Ms.

B.L.’s evidence that the Complainant, prior to Christmas 2015, disclosed to her a plan to get the Accused deported because of derogatory and insulting comments the Accused had made to and about her mother. [ 95 ] In the light of Ms. B.L.’s evidence that she loved the Complainant and considered her like a daughter, that they were very close and would confide in each other, I find that it does not make sense that she would not tell the Complainant that she did not believe her - that she actually believed the Complainant was concocting a story to falsely accuse her stepfather of a serious crime. [ 96 ] If Ms.

B.L. really did “love that child” as she professed, it is difficult to understand why she would immediately conclude that the Complainant was lying, without hearing her side of the story first, and why she would not confront the Complainant with what she believed to be the truth, even if only to discourage her from coming to court to give what Ms. B.L. believed to be false testimony. [ 97 ] I found Ms. B.L. to be a strident and defensive witness.

She would not accept Crown Counsel’s suggestion that the passage of time would affect memory negatively. [ 98 ] In my view, in light of the serious internal inconsistencies in her evidence, the contradictions between her evidence in Court and her actions on January 2, 2016, and the sense, or lack thereof, of her evidence, I find Ms. B.L. was not a credible or reliable witness. [ 99 ] Ms.

H.G.’s evidence about what the Complainant said regarding when the Accused was wearing his red boxers and when he was not, during the incident of January 2, 2016, is inconsistent with the Complainant’s evidence about the red boxers and inconsistent with what the Complainant testified that she had told Ms. H.G. [ 100 ] When Crown Counsel asked Ms. H.G. whether there was any possibility that she might have incorrectly remembered some of what the Complainant had told her, Ms. H.G. was adamant that there was no such possibility.

She insisted that she had had multiple conversations with the Complainant over the months the Complainant had lived with her in her home, and she was sure that she had remembered accurately what the Complainant had told her. [ 101 ] In my view, Ms. H.G.’s memory of what was told to her was not as accurate as she adamantly insisted. At the end of her direct evidence, after recounting what the Complainant had told her about the incident, she said “that was the conversation” . However, the conversation Ms. H.G. had just recounted did not mention the Accused’s act of placing the Complainant’s hand on his penis.

I find it implausible that this detail would have been left out of any account of the incident told to Ms. H.G. by the Complainant. Ms. H.G. later acknowledged in cross-examination that this detail was told to her by the Complainant. DECISION [ 102 ] Although this is a case that turns on the issue of credibility, this is not a “he said, she said” case. The Complainant’s allegation

of sexual assault is not denied in the Accused’s evidence or in the evidence of any other witness. The Accused testified only that he has no memory of committing the acts that the Complainant had described him doing in the early morning hours of January 2, 2016. The only issue is whether I believe the Complainant’s evidence of the sexual assault and whether I am left with a reasonable doubt as to the guilt of the Accused, on the basis of the whole of the evidence that I have heard at this trial.

I am aware that the Court must be cautious in cases such as this, where the only evidence of the guilt of the Accused comes from a single witness. [ 103 ] The Complainant testified in direct for about 40 minutes on the afternoon of the first day of trial on February 15, 2017. She was then cross-examined for the balance of that day, and on February 16, February 17 and May 9, 2017. Despite the lengthy cross- examination, I find that the Complainant was unshaken in her evidence regarding the sexual assault.

I have listened again to the DARS record of both her direct evidence and her evidence under cross-examination. [ 104 ] I found no troubling internal inconsistencies in the Complainant’s evidence. The external inconsistency of her evidence with that of evidence of Constable Chan, regarding the requests for clarification from D. while D. was making her police statement is, in my view, minor and peripheral to the main issue to be decided at this trial - whether or not the Accused placed the Complainant’s hand on his penis.

In my view, it is not unusual for a witness to remember some details more accurately than others. [ 105 ] D. was not called as a witness. Constable Chan took D.’s statement at around 7:30 a.m. on January 2, 2016, after having taken the Complainant’s statement at detachment. The Complainant had had little sleep since the incident which had taken place a few hours earlier that same morning.

I find that the Complainant’s inability to remember that D.’s requests for clarification took place at D.’s boyfriend’s home while she was preparing her statement and not at the Complainant’s home earlier that morning, to be insignificant, not deliberate, and not impairing her credibility or the over-all reliability of her evidence. [ 106 ] In my view, whether the Complainant told Ms. H.G. that the Accused had his boxers on in the bathroom or in her bedroom is not crucial to the credibility or reliability of the Complainant’s evidence.

The Complainant testified that when the Accused entered the bathroom he was naked. However, she also testified that she quickly averted her eyes. The Complainant’s descriptions of the actual act of sexual assault - to Ms. H.G., to Ms. B.L., and to Mrs. D.R.F. - were all entirely consistent with the Complainant’s testimony. One of the versions of the incident that Ms. B.L. testified the Complainant told her, was consistent with the Complainant’s evidence in Court, in terms of when the Accused was naked and when he was wearing his red boxers. [ 107 ] I find the evidence of both the Accused and of Mrs.

D.R.F., that the Accused owned only one pair of red boxers and was wearing them in the night of January 1 and the morning of January 2, 2016 to be corroborative of the Complainant’s evidence. How else would the Complaiant know that he was wearing red boxers that night unless she saw him wearing them? [ 108 ] Defence Counsel submits that, because the Complainant had discussed with her friend D. that the Accused should be deported, the Complainant had a motive to fabricate her evidence, which should leave the Court with a reasonable doubt as to the Accused’s guilt.

That is basically a submission that the Complainant’s evidence incriminating the Accused could have been concocted. [ 109 ] I find that, while the Complainant may have wished for the Accused to be deported, she did not act on that wish. When her mother asked her not to report the Christmas Eve incident to police, the Complainant agreed, hoping that her mother would follow through on her promise that the Accused would stop drinking and “get help” .

I accept the Complainant’s evidence that she did not report the Accused to police until after the sexual assault of her on January 2, 2016. [ 110 ] I find that the discussion between the Complainant and D. about having the Accused deported took place once, between Christmas Eve 2015 and January 2, 2016 during a discussion the two of them were having about reporting the Accused’s Christmas Eve assault on Mrs. D.R.F. to police. [ 111 ] The Complainant left her home immediately after the alleged sexual assault, at approximately 3:00 a.m., never to return.

This event has severed the relationship she had with her mother, on whom she had always been totally dependent up to that point. At the time, she had no job, no income and no obvious means of supporting herself. Moreover, she was leaving the person that she loved and cared about, and - notwithstanding Mrs. D.R.F.’s evidence to the contrary - the person she most wanted to protect. Even the Facebook message she sent to Mrs.

D.R.F. on the morning of January 2, 2016, after describing what the Accused had done, warned her mother to leave the house “cause you don’t know what he will do because of this” (Referring to the Accused.) [ 112 ] In my view, the reason for the Complainant’s rushed departure from her home on the morning of January 2, 2016, was not because of a plan or plot to incriminate the Accused. She was already fearful of what the Accused might do to her mother who she clearly wanted to protect.

In my view, after the incident in the early morning hours of January 2, 2016, the Complainant decided that she needed to protect herself. [ 113 ] The Complainant’s demeanour was appropriate. She was cooperative and forthcoming, in both direct and cross-examination. She became emotional in her evidence only once. After she testified that she may not have told the whole truth or all the details to Ms. H.G., Defence Counsel asked whether she had stretched the truth a bit to gain attention. The Complainant said “no” .

Defence Counsel then asked “Why did you do it?” At that point, the Complainant, broke down in tears, and in a voice that was shaking, said: “My mother she… I don’t think she believes me, and the woman B.L., who I thought I could talk to, instead betrayed me. Then I talked to H.G., who betrayed me. Then I spoke to D.C., who my mom made me think betrayed me.” [ 114 ] Notwithstanding the length of her cross-examination, the Complainant’s evidence was remarkably free of inconsistencies. In fact, the longer she was cross-examined, the more credible I found her evidence.

She provided evidence that was rich in detail and presented confidently, without hesitation, awkward periods of silence, or confusion. As the cross-examination continued, she was able to add more and more layers of detail to her evidence. [ 115 ] On February 17, 2017, the third day of her cross-examination, Defence Counsel put to the Complainant a series of questions regarding what the Accused did to her, in her bedroom, on the morning of January 2, 2016:

Q Even while hugging you he appeared unsteady on his feet. A He was steady when he hugged me. Q He was leaning up against you. A I don’t know. Q He was putting more weight on you. A Yes, I thought it was because of his size though. I don’t know if it was ‘cause he was leaning into me. (request for clarification) I thought it was because of his size, not because he was leaning into me. [ 116 ] A few minutes later, this exchange took place: Q I’m going to suggest to you that his hand - that was previously wrapped around you - fell down to his side. A Which one? Q His right hand.

A No…if I’m thinking about it correctly… (Request for clarification from the Court as witness’ voice dropping.) Um, I’m just picturing when he said if his right hand went down. I’m just picturing him… the right side… Q His left hand fell down. A It did. It fell down after grabbing my wrist - his left hand. Q That hand, the left hand, after grabbing your wrist, appeared to go limp. A No. It was firm when he lowered my wrist. Q But you indicated to the Court that the left hand fell down, after grabbing your wrist. A Yes. I meant like going down.

When you said “dropped” I didn’t know you were being that specific. [ 117 ] After some discussion about the words “fell down” and “dropped”, the DARS record of that portion of testimony was played back. After a discussion about those words, the following exchange took place: Q You’d agree with me that that Mr. C.R.F.’s left hand went limp after he grabbed your wrist. A Did not go limp. Q His left hand fell down after grabbing your wrist. A I’ll have to disagree this time, just because of the way the question is being asked. Q What’s different about how the question is being asked?

A His arm was firm when he lowered it. It was not limp. Q His movements were still very slow. A While he was hugging me? Q The movement of his hands, from reaching, from hugging you, his hands behind your back, touching your back, hugging you, to reaching for your wrist… that movement was very slow. A It was quick. Q It was quick? A Yes. Q You had no time to react? A I reacted as soon as he started to do it. Q I’m going to suggest to you that it was very slow and that his movement downwards was… his hand movement down to his side was also very slow. A His kiss was slow.

When he had grabbed my wrist and lowered it, it was fast. [ 118 ] I found the Complainant to be a careful witness. She was prepared to acknowledge not remembering when asked about things she could not remember. Before answering some of the questions above, she would pause briefly, as though deep in thought, trying to replay the scene in her mind. Her evidence was presented clearly, thoughtfully, and in fine detail. It did not sound rehearsed, concocted

or fabricated. I found her evidence to have the ring of truth. I found her evidence to be compelling. [ 119 ] I believe the evidence of the Complainant. I find that, on the basis of the whole of the evidence that I have heard at this trial, I do not have any reasonable doubt as to the guilt of the Accused on the charge of sexual assault. Accordingly, I find the Accused guilty as charged. __________________________ The Honourable Judge P. Chen Provincial Court of British Columbia