R. v. Lee, 2018 BCSC 2338

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lee, 2018 BCSC 2338 Date: 20180615 Docket: 102469-2 Registry: Kamloops Regina v. Allen Harry Lee Restriction on Publication: A publication ban has been mandatorily imposed under ss.486.4(2) and 486.4(2.2) of the Criminal Code restricting the publication, broadcasting ortransmission in any way of evidence that could identify a complainant or witness, under theage of 18. This publication ban applies indefinitely unless otherwise ordered. Identifyinginformation has been removed from this version of the judgment to comply with the courtorder.

Before: The Honourable Madam Justice Donegan Oral Reasons for Judgment Counsel for the Crown: L. Drake (as Agent for C. Balison)Counsel for the Accused: A.M. ArmstrongPlace and Date of Trial/Hearing: Kamloops, B.C. June 13 and 14, 2018Place and Date of Judgment: Kamloops, B.C. June 15, 2018 INTRODUCTION [1] THE COURT: Allen Harry Lee is charged with sexually assaulting K.C. on a single occasion between January 1, 2002 andMarch 31, 2003, at a time when K.C. was 15 years old and Mr. Lee was 42 and a friend or acquaintance of K.C.'s parents. K.C. and Mr.Lee were the only two witnesses called in this case.

There is no other evidence. [2] The question in this case is whether the Crown has proven Mr. Lee is guilty of this charge beyond a reasonable doubt. The onlyissue is the credibility of K.C. and Mr. Lee whose versions of events are completely at odds. [3] The Supreme Court of Canada gave us guidance in applying the reasonable doubt concept in credibility cases in R. v. W.(D.), 1S.C.R. 742. This framework was discussed by both counsel as they focused on what they saw as the only issue in this case, that is,credibility of the witnesses.

That framework is as follows: • First, if I believe the evidence of the accused, I must acquit. • Second, if I do not believe the evidence of the accused, but I am left in a reasonable doubt by it, I must acquit. • Third, even if I am not left in a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of theevidence I do accept, I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [4] To this list I would add, if, after careful consideration of all of the evidence, I am unable to decide whom to believe, I mustacquit: R. v.

C.W.H., (BC CA), [1991] B.C.J. No. 2753 (B.C.C.A.) [5] It is important to remember that the above framework was never intended to be a statute and should not be read like one. Manycourts have commented that the framework is not a magic incantation or something to be slavishly followed, but what is important is thatthe principles underlying the W.(D.) framework are applied. Justice Paciocco of the Ontario Court of Appeal discussed these underlyingprinciples extensively in a recent article. He identified the principles that drive the W.(D.) framework as these:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whetherthat evidence is true, there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and

(5) Even where the fact-finder 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. David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment”, 22:1 Can. Crim. L. Rev. 31. [6] It is with the W.(D.) framework, informed by these underlying principles, that I approach my assessment of the evidence in thiscase. [7] I will also say a brief word about the assessment of credibility and reliability here.

The court's fact-finding role requires anassessment of the credibility, which is the truthfulness and honesty of a witness, and the reliability, or accuracy, of the witness' evidence.This requires consideration of many factors which were conveniently summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC1398 at para. 186: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides.

The art of assessment involves examination of various factors such as the ability andopportunity to observe events, the firmness of … memory, the ability to resist the influence of interest to modify [a witness'] recollection,whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimonyduring direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness hasa motive to lie, and the demeanour of a witness generally.

Ultimately, the validity of the evidence depends on whether the evidence isconsistent with the probabilities affecting the case as a whole and shown to be in existence at the time. [8] It is important to remember, as I think one counsel pointed out in submissions, that a court is not required to believe all of awitness' evidence. A court may believe some, all, or none. I would also add that credibility determinations “may not be purelyintellectual and may involve factors that are difficult to verbalize”: R. v.

M.(R.E.), 2008 SCC 51 , [2008] 3 S.C.R. 3 at para. 49.I also observe that it is important not to base determinations of credibility on emotional evaluations, stereotypes, guesswork, or otherimpermissible reasoning. Credibility and reliability decisions have to be grounded in reason and made as objectively as possible. OVERVIEW [9] K.C. was born in [date omitted]. He is now 31 years old.

In [precise date omitted] 2002, he turned 15 years old. [10] At that time, K.C. was living in a home in [location omitted] with his mother, [name omitted], his stepdad, [name omitted], andhis stepbrother, [name omitted], who was a year younger than him. K.C. was involved in a social circle of his peers at the time thatsmoked marihuana on a regular basis. K.C.'s mother and stepdad had a relationship that K.C. described as a “roller coaster” at the time.They had frequent arguments. His stepfather, when home, would get drunk on occasion and infidelity was not uncommon.

He describedtheir home life as a “crazy household” with frequent parties, particularly by his stepfather and his stepfather's friends. [11] K.C. knew Mr. Lee as one of his stepfather's friends. It was during this timeframe that Mr. Lee, came to know [K.C.’sstepfather] and [K.C.’s mother], spent time with them. Mr. Lee lived in an apartment in the same general area of [location omitted] asK.C.'s family home. K.C. came to know Mr. Lee when he started hanging out at his parents' house. K.C. recalled there were manyoccasions where Mr.

Lee was present at his parents' home socializing and occasions where he and others were socializing at Mr. Lee'shome. K.C. recalled two particular occasions when he was alone with Mr. Lee in Mr. Lee's apartment, one of which involved Mr. Leeshowing him how to play backgammon. He recalled another occasion where Mr. Lee got him a job very briefly at his place ofemployment, at [location omitted]. K.C. said that he smoked marihuana with Mr. Lee on several occasions and that his parents permittedhim to sleep over alone at Mr.

Lee's nearby apartment on the two occasions I have just mentioned. [12] K.C. testified, on the second of these occasions, sometime during the summer, spring, or fall of the year he was 15 years old, hesaw Mr. Lee in his parents’ backyard. Mr. Lee showed him a bottle of whiskey in his backpack and invited K.C. to drink it in hisapartment. K.C. agreed. Once there, K.C. recalls drinking from a glass of whiskey with Coke or some kind of mix in it. Mr. Lee waspushing him to drink more, and to drink faster. He did not finish the entire glass.

He believes that it is likely he smoked marihuana, aswell. [13] At some point, K.C. noticed the hide-a-bed in the living room area pulled out and ready for him to lay down on. K.C. undressedto his boxer shorts to go to sleep for the night and felt like he did not have energy to even get under the covers. Given the limited amounthe had to drink, he thought maybe something had been put in his drink. He recalls seeing a sandwich baggie with pills in it on the fishtank.

K.C. then remembers throwing up a little bit on the hide-a-bed and apologizing for doing so before becoming unconscious. [14] K.C. testified that the next thing he remembered was waking up to find Mr. Lee slowly pulling down his boxer shorts. Mr. Leesaid that his penis was bigger than K.C.'s and then put his mouth on K.C.'s penis, something that did not last very long. K.C. then recallsMr. Lee lifting up his legs and putting his penis in K.C.'s anus and having intercourse. He testified that he was frozen with fear.

Hetestified that he kept his eyes closed because he was panicked and thought he should pretend to be asleep. He froze because he did notknow how to react. He had no previous sexual experience and was faced with an older man, a family friend, who was doing this to him.He did not want this to happen. [15] While Mr. Lee was having intercourse with K.C. in this way, K.C. recalled that Mr. Lee said that he was going to "come in yourass," and shortly thereafter Mr. Lee ejaculated in K.C.'s anus. K.C. never stopped pretending to be asleep during this event. After it was

over, he testified that he waited long enough so that Mr. Lee would fall asleep before inching his way slowly off the bed. He went to the washroom and wiped the semen from his anus with toilet paper and then made his way quietly out of the apartment and went home. K.C. testified that he was angry with Mr. Lee and took some of Mr. Lee's marihuana on his way out. [ 16 ] K.C. said he was ashamed of what occurred and never spoke of it until he told his mother three years later. He says he told her because he was concerned he might have HIV or AIDS as a result of what had happened and rumours he had heard about Mr.

Lee having the disease. He had heard the disease could take two years to manifest. K.C. testified that he waited for about three years until he was 18 to get tested and that he avoided relationships with girls in the meantime. He said that he had a feeling his mom would find out, so he decided to tell her that Mr. Lee had raped him. He took the test and it was negative, he says. [ 17 ] K.C. explained that he did not tell anyone for a number of years because he was ashamed, as he and his social group were not accepting of homosexuality.

He did not want to be labelled as such and felt that being raped by a man was very emasculating. [ 18 ] K.C. decided to go back to school in his early 20s and obtained his grade 12 diploma. At the age of 20, he started going to church which he described as a huge catalyst for change in his life. He found that his faith helped him see life from a perspective that allowed him to be a productive member of society. K.C. went on a two-year mission for the church and found it to be a positive experience. He is now married, has a child and is engaged in meaningful employment as [profession and location omitted].

He went to police about Mr. Lee in December of 2014. [ 19 ] In the time shortly after the incident, K.C. testified that he was upset with Mr. Lee for what he had done. He took Mr. Lee's bike to the river, and, along with a friend, smashed it repeatedly with a rock and threw it in the river as hard as he could. He also testified that he put his foot through a window of a car associated to Mr. Lee. He frankly acknowledged that he still harbours anger toward Mr. Lee. [ 20 ] Mr. Lee is now 57 years old. He lives in [location omitted].

He lived in [location omitted] from November of 2000 when he arrived in the city with his then girlfriend, until he left in July of 2002 to return to [location omitted]. He lived [location omitted] about 18 months or so. He did not know anyone in [location omitted] when he arrived and, within a few months, his girlfriend was gone. He decided to stay in [location omitted] and obtained seasonal employment in the spring of 2001 at the [location omitted]. He worked there again during the spring of 2002 until he left [location omitted] in about July of 2002. [ 21 ] During his time in [location omitted], Mr.

Lee testified that he had few friends. He met a couple, Dave and Cindy, through work. He met them in July of 2001 and, through them, met [K.C.'s stepfather], in September of 2001. He described that he and [K.C.’s stepfather] socialized from time to time. He met [K.C.’s stepfather’s] wife, [K.C.'s mother], not until March of 2002, but quickly started a romantic affair with her that lasted for a few months.

He left to [location omitted] in July of 2002, not intending to maintain a relationship with K.C.’s mother, but K.C.’s mother unexpectedly turned up at the bus depot when he was leaving and she moved to [location omitted] at the same time. She did not live with him and they kept in brief contact for only a short time. Other than a phone call about two years later, they have had no further contact since then. [ 22 ] Mr.

Lee testified that he first met K.C. at [K.C.’s stepfather] and [K.C.’s mother’s] home when he attended there to speak to their downstairs' tenant, about using [the tenant's] bank account for the deposit of his pay cheques. This occurred in March of 2002. He says that [K.C.’s stepfather] was not home, so [K.C.’s mother] had K.C. take Mr. Lee downstairs to meet [the tenant]. While they waited for [the tenant], who was occupied with something else, the two of them played pool together. [ 23 ] Mr.

Lee denies the frequency of contact with K.C. over the relevant timeframe that is alleged by K.C. and testified that there was actually very little interaction between them. Mr. Lee says he saw K.C. walk down the hall to his room when he was visiting at [K.C. stepfather] and [K.C. mother’s] home on occasion. [ 24 ] Mr. Lee denies ever being alone in his apartment with K.C. and says he did not have direct contact with K.C. any more than six times.

He detailed those times, all of which were in the presence of others. [ 25 ] After the first occasion where they played pool in the basement, the next occasion occurred around spring break where [K.C.’s mother] told Mr. Lee that K.C. had been spending a lot of time in his room and was not motivated. Mr. Lee says he offered to take K.C. with him to work, to let him help and receive some of his pay. K.C. did work with him for one day. The next occasion occurred a few weeks later when Mr.

Lee says that [K.C.’s brother] and K.C., then aged 14 and 15, respectively, showed up unannounced at his apartment door looking for “weed” and [K.C.’s brother] wanted a cigarette. He invited them in and he shared a marihuana cigarette with K.C. Then around the end of June, Mr. Lee testified that K.C. and [K.C.’s mother], stopped by his apartment while riding by on their bikes. Mr. Lee showed K.C. how to play backgammon in the presence of his mother. [ 26 ] Mr.

Lee also recalled another time, when others were present where he and K.C. participated in an activity, I believe he called it car-surfing or something of that nature. [ 27 ] Mr. Lee was quite open about his lifelong use of marihuana throughout his evidence. At the time of the events at issue in this case, he said he smoked marihuana three or four days a week and, in examination-in-chief, testified that he had big “garbage bags full” of the drug in his apartment. [ 28 ] Mr. Lee denies every aspect of K.C.'s allegations.

He denies offering K.C. whiskey or even drinking whiskey, testifying that the only alcohol he drank at the time was Budweiser beer and that he had not even consumed whiskey since 1991 as it was the alcohol he consumed when he got his “DWI”. He denies having a backpack at that time, testifying that he never even owned a backpack until 2010 when he became homeless. He further denies having any pills in his apartment, as alleged by K.C., or at all, saying that he had never been “big on pills” and did not even have aspirin in his home.

He denies ever being alone with K.C., having K.C. in his apartment to sleep over on any occasion, and denies assaulting K.C. in the manner alleged or at all. ASSESSMENT

[ 29 ] I will start with the evidence of Mr. Lee. [ 30 ] Mr. Lee's credibility was undermined significantly in cross-examination in several ways. In general, I find his evidence was not balanced, some aspects in important areas were inconsistent and other aspects were implausible. [ 31 ] Balance exists when a witness shies away from exaggeration or minimization, admits memory frailties or other personally difficult facts, or credibly acknowledges the weaknesses in their evidence.

A balanced witness does not answer questions strategically in the sense that they answer the questions asked and do not attempt to unreasonably control the narrative. They do not appear to have an agenda given the way they testify. While Mr. Lee did admit some personally difficult facts such as his historical unrelated criminal record and the uncomfortable fact of having an affair with K.C.'s mother for a few months, he was not, I find, a balanced witness. [ 32 ] Mr. Lee made blanket overstatements, as Mr. Balison called them, in his evidence and then later tried to explain them away.

Generally, I find his answers were convenient to the questions being asked, self-serving in some respects, and would change when the questions were asked in a different way or approached from a different perspective. [ 33 ] These events occurred in 2002. Mr. Lee has not had contact with K.C. since then. He has not had contact with K.C.'s stepfather since then and only a phone call with his mother in approximately 2004. K.C. did not go to the police with this complaint until December of 2014. Yet, despite the 16 years that have now elapsed from the time of these events until the present, Mr.

Lee had a firm answer for everything. He allowed for no memory frailties. It was almost as if his memory of that timeframe was, as the Crown submitted, perfectly complete, which does not accord with normal human memory and experience. [ 34 ] During cross-examination, it was apparent to me that in answering questions Mr. Lee was trying to determine the purpose behind the question and answer accordingly, in an effort to tailor his answer to place him in the best possible light. When the same topic was addressed indirectly or in a different way, his answers would change.

I will provide a few examples. [ 35 ] In the important area of his familiarity and closeness with K.C. and K.C.'s family at the time, Mr. Lee, in his answers, would distance himself in terms of the nature of his relationship and the number of occasions in which they would socialize. However, when the same topic was broached indirectly, such as in the context of discussing his employment situation, the nature of the relationships and the frequency of contact increased quite a lot. [ 36 ] The inconsistency in his evidence on the topic of how much time he spent with K.C.'s mom and stepdad was quite obvious.

In examination-in-chief, Mr. Lee testified that knew [K.C.’s stepfather] from September 2001 until July 2002 and that he visited with [K.C.’s stepfather] only six to eight times in that timeframe making it seem that they were mere acquaintances. In fact, he said just that near the end of his cross-examination. He refused to admit that they were even friends. However, at various points during cross- examination, the amount of time he spent with [K.C.’s stepfather] varied greatly.

At one point, he said it was all the time in the winter and, at another point he said when he was working at [location omitted], it was mostly in the evenings and weekends. When Mr. Balison counsel asked him to quantify the time he spent with [K.C.’s stepfather], at one point Mr. Lee agreed it was one or two times per week. [ 37 ] The inconsistencies in Mr. Lee’s evidence on the topic of the nature of his relationship with K.C. was also quite obvious. Mr.

Lee took opportunities to distance himself from any relationship with K.C., minimizing and denying that he was trying to help him or really even knowing much about him. When details of the interactions that he acknowledged existed were explored in cross-examination, it became clear to me that Mr. Lee did take an interest in K.C., he did spend time helping him, and he did know aspects of his personality. Mr. Lee found K.C. to be a timid boy. He played pool with him in his house. He showed him how to play backgammon while in his apartment. He volunteered to give him a short-term job with him.

He invited him into his apartment and supplied him with the marihuana cigarette they shared and did another activity called car-surfing. All of these events took place in a very short period of time and demonstrate that Mr. Lee did take an interest in K.C. and indeed did spend time helping him, contrary to Mr. Lee’s assertions. [ 38 ] Although asserting he is always a friendly and helpful guy, Mr. Lee would not admit to being so with K.C. which, on his own evidence, is a rather obvious state of affairs. On the same topic, another inconsistency arose. Mr.

Lee first testified that he volunteered to give K.C. a job to try and win “brownie points” with [K.C.'s mother]. However, he later denied this, claiming that he did not do this as a favour because he did not need to win [K.C.’s mother’s] favour. He asserted that it was [K.C.’s mother] that was, in fact, pursuing him. [ 39 ] Overall, it is apparent that when confronted directly about his closeness with K.C. and his family, Mr. Lee deliberately tried to downplay the time he spent with them. When he was asked indirectly, the frequency of contact and closeness with the family was much greater.

It was apparent that Mr. Lee was trying to leave the overall impression that the amount of time he spent with the family and 15- year-old K.C. was minimal, but he gave answers when questioned indirectly on this topic inconsistent with this. I think it is because he was trying to give his answers strategically that he was caught in these inconsistencies. [ 40 ] Also, as the Crown observed, when asked to repeat an answer that I could not hear, Mr.

Lee took the opportunity to go off topic and provide a lengthy explanation for something that did not make sense with the overall impression he was trying to leave. [ 41 ] Mr. Lee also tried to be strategic in giving the precise number of interactions he had with K.C. in 2002. He allowed for no memory frailties on this topic or that he could be incorrect. This defies logic, common sense, and ordinary human experience. His interactions with this family occurred over 15 years ago and included a great deal of socializing with different people, at a time when he says he was a consistent user of marihuana.

It is clear there was opportunity for Mr. Lee to have had personal interactions with K.C. over and above the specific number and events that Mr. Lee's asserts, but Mr. Lee was firm about the precise contact. This degree of certainty and specificity about events, which would have been normal everyday events and certainly not the centre of one's attention from 16 years ago, does not, as I say, accord with ordinary human experience. [ 42 ] Mr. Lee's evidence had other inconsistencies and implausibilities in the area of his marihuana possession and use at the time.

When asked in examination-in-chief if he knew K.C. had stolen some marihuana, Mr. Lee replied that he did not know this, but said it was entirely possible K.C. may have taken some during one of the two occasions he was in his apartment in the presence of others, because he had “big garbage bags” full of marihuana in his apartment, a fact of which he appeared quite proud. However, in cross- examination when the questioning centred on his income sources, Mr. Lee resiled from his position and denied having garbage bags,

(plural), full of marihuana in his apartment. He said he only had one bag. He denied selling it, saying he did not know anybody in [location omitted] and the people he hung out with drank alcohol. He said he did not purchase the marihuana. Rather, he obtained it from the crops of friends in Lower Mainland. These inconsistencies and the implausibility of this evidence further undermine his credibility. [ 43 ] On this same topic, Mr. Lee did not agree with the suggestion that drugs were a big part of his life in 2002.

Given his obvious pride in his “big garbage bags” full of marihuana that he kept in his apartment, his admitted lifelong use, and the frequency of his use at the time, his failure to admit this obvious fact also undermines his credibility. [ 44 ] Mr. Lee's credibility is undermined in another area as well, the area of his employment. This area provides a good example of where Mr. Lee's evidence changed to suit where he thought the questions were going. [ 45 ] Mr. Lee worked at [location omitted] from March until early fall in 2001.

He first testified that he was unemployed in the off- season, which would be about several months over that fall and winter. However, in cross-examination, when the topic of how he supported himself was broached, Mr. Lee added that his landlord employed him to do odd jobs in the fall of 2001 so that he could pay rent. When asked what he did for work in the winter of 2001, Mr. Lee testified that he did nothing and confirmed that he did not draw Unemployment Insurance either. To explain how he could keep his apartment without any income source during the winter months, Mr.

Lee testified that his landlord allowed him to “run up” the rent bill until spring when he was employed again. However, later in cross- examination when the topic of his employment was raised indirectly, Mr. Lee's evidence again changed. This time, Mr. Lee offered that he actually did work for the winter of 2001, cleaning out apartments in the building. When confronted with this inconsistency, he said that he did not make any income doing this, but what he earned all went towards his rent.

This explanation created another inconsistency with his earlier evidence that his landlord simply “ran up” his winter rent bill through to the spring. [ 46 ] When the cross-examination returned to this area indirectly again, Mr. Lee added that he also worked those months at the landlord's ”other places” and then later added that he helped Dave and Cindy at a trade show. Given the context in which these inconsistent answers arose, it was clear to me that Mr. Lee was attempting to fill in any gaps in his free time to make it appear that he had no time to be friendly with K.C. or his family.

This is another instance of his strategic answers exposing inconsistencies that undermine his credibility. [ 47 ] The area of Mr. Lee's bank account was another area of implausibility. Mr. Lee asserted that he met [K.C.’s mother] and K.C. in March of 2002 when he was trying to find someone who would allow him to use their bank account for direct deposits to be made from his employer. The tenor of his evidence was that he wanted to find someone he could trust. He felt he could not trust Dave and Cindy because they had financial problems.

He approached [K.C.’s stepfather], obviously feeling he could trust him despite at one point him saying he had only spent six to eight times with him between September of 2001 and July of 2002, but in any event, [K.C.’s stepfather] refused. Mr. Lee testified that he did not ask [K.C.’s mother] to allow him to use her bank account because he had just met her, yet he almost immediately started a romantic affair with her. Mr.

Lee does not explain why he could not simply open his own bank account, but nevertheless says he approached the downstairs tenant of [K.C.’s stepfather] and [K.C.’s mother’s], a man he had never met, a man with whom he was uncomfortable to meet alone, and a man for whom he would have no way to assess his trustworthiness to accept his money. Apparently, [the tenant] went along with Mr. Lee’s request. All of this defies common sense. [ 48 ] Taken as a whole, I find Mr. Lee's evidence on the material issues incapable of belief.

His credibility and the reliability of his evidence has been so undermined that I find his evidence to be untrue. I do not believe it and it does not raise a reasonable doubt. [ 49 ] However, the mere rejection of Mr. Lee's evidence does not prove guilt. Mr. Lee is not to be convicted unless the evidence that is given credit proves him guilty, each and every element of the offence, beyond a reasonable doubt. [ 50 ] I turn now to the evidence of K.C. [ 51 ] I find K.C. to be a very credible witness and his evidence in the key areas reliable. He was a sincere, thoughtful, careful, and very balanced witness.

He exhibited what appeared to be genuine emotions of shame, embarrassment, and sadness while he testified. Despite these emotions, he did not exaggerate his evidence or try to fill in any areas where his memories were less than firm. He took time to reflect on his answers and fairly conceded where he had memory gaps. He did not change his evidence, nor did his evidence contain any inconsistencies. [ 52 ] An area where K.C. was particularly challenged was with respect to a possible motive to lie. He testified that he walked in on his mother and Mr.

Lee, “spooning” on the couch in their family home at a time shortly following Mr. Lee's assault upon him. K.C. suspected that his mother and Mr. Lee may have been starting a romantic relationship and ultimately could be the cause of his mother's departure to [location omitted]. It was put to him in cross-examination that when he discovered the two of them on the couch in that fashion, it made him upset or angry. K.C. testified that he did not like it, but that it did not make him extremely upset because this behaviour by his mother was not an uncommon thing.

It did not upset him to have her choose someone else over his stepdad, but he said the thing that scared him the most was the possibility that his mother may have AIDS, again referencing that rumour about Mr. Lee’s health. [ 53 ] Mr. Armstrong put a portion of his police statement and a portion of his preliminary inquiry transcript to K.C. where K.C. said he was “kind of mad” at his mom and was “pretty upset”. It was suggested that this was inconsistent with his testimony about his feelings when he saw the two of them on the couch.

K.C. explained that he was upset with his mother when he found them together, but not because she was having an extramarital affair, but because she was with the guy that had raped him. In these circumstances, I do not find any significant inconsistency here and accept K.C.'s explanation even if it could be said there was an inconsistency. [ 54 ] This topic, that is, the affair between his mother and Mr. Lee, was suggested to K.C. as his motive to mislead and his motive to falsely accuse Mr. Lee of this crime. K.C. denied this. He acknowledged his emotions at the time when he realized his mother and Mr.

Lee were likely together. He had feelings of unhappiness, upset, and feelings of betrayal by his mother and anger at Mr. Lee for what he had done. He readily admitted taking out that anger toward Mr. Lee by stealing some marihuana immediately after the event and then shortly thereafter destroying some of his property. These feelings and his described manifestation of those feelings do accord with human experience and common sense, particularly in the case of an adolescent. When K.C. denied the suggestion that he was motivated

to falsely accuse Mr. Lee out of a longstanding desire for revenge, K.C. was not indignant or angry in his response. Rather, he readily admitted that indeed he was still angry with Mr. Lee for doing this to him, an event he called disgusting and life-ruining, but he also made it clear that he was not attending court to discuss these events, which were so clearly and obviously embarrassing for him, because his mother had a short-term affair with Mr. Lee 16 years ago. She had other affairs, he said. [ 55 ] I find there is an absence of motive for K.C. to mislead.

The only evidentiary-based motive suggested is not capable of belief or of raising any doubt about the veracity of K.C.'s evidence. K.C. admitted destroying Mr. Lee's property in the time following the event and admitted still harbouring anger towards him. He was not in court discussing the event he described because of his feelings of upset toward his mom and Mr. Lee being together. As I have indicated, Mr. Lee was involved with his mother for only a few months in 2002 and has had no contact with their family at all for well over a decade.

To believe that K.C., in the positive life situation he now finds himself, would endure this uncomfortable court process and accuse Mr. Lee of such a crime from about 16 years ago out of some 16- year-long festering revenge does not accord with the evidence or with common sense. [ 56 ] I accept K.C.'s evidence. I am satisfied of the reliability of K.C.'s evidence, as well. He was firm and unchallenged in the details of his recollections of the sexual contact that occurred in Mr. Lee's home. K.C. had no prior sexual experience.

He became unconscious and awoke to find his parents' friend removing his boxer shorts and then perpetrating the acts that I have described. This event would have been significant for him and its details memorable. While firm in his memories of significant aspects of his life at the time and the event itself, K.C. fairly and reasonably conceded and readily admitted his memory frailties with respect to peripheral areas, both in examination-in-chief and in cross-examination. [ 57 ] His inability to recall these peripheral details causes me no reason to doubt the reliability of his evidence.

K.C. is an adult witness recalling memories from his adolescence. As examples, I accept that details such as the number of parties his parents had, who particularly was there, the number of gatherings Mr. Lee had at his apartment and who particularly was there, the precise timing of this event or time of day, are all examples of details that I find would not lie at the centre of his memory at this time in his life and would not have been important to him at that time. [ 58 ] In short, I have no hesitation in finding that K.C. was both an honest witness and a reliable one.

I find he was accurate in his recollections of the role Mr. Lee played in his life and the lives of his parents during the timeframe of the Indictment and accurate in his recollections about the events that occurred on the day Mr. Lee perpetrated the sexual acts upon him. [ 59 ] On the basis of K.C.'s evidence, I find the Crown has proven each element of the offence as charged beyond a reasonable doubt and, accordingly, I find Mr. Lee guilty as charged. “S.A. Donegan J.” DONEGAN J.