R. v. Gill Date:, 2015 BCPC 267

Citation: R. v. Gill Date: 20151001 2015 BCPC 0267 File No: 81581 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARJINDER SINGH GILL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: D. P. H. Tsui Counsel for the Defendant: G. K. Gill Q.C. Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 20, September 1, 2015 Date of Judgment: October 1, 2015

Introduction [ 1 ] The Accused Harjinder Singh Gill is charged with committing the offence of sexual assault on or about September 13, 2014, at or near Abbotsford, BC. The Complainant is a 33 year old woman who has no prior connection with the Accused. The offence is alleged to have taken place at a construction site that had been excavated. The Complainant was there on the morning of the alleged offence date collecting rocks.

She alleges that on two occasions the Accused sexually assaulted her by touching her breasts. [ 2 ] The Accused is a 57 year old man from India who is in Canada as an applicant for refugee status. He admits that he was present on the alleged offence date at the site where the Complainant says the incident took place. He also admits that he had contact with the Complainant, but he maintains that the contact was innocent, and while he may have accidentally come into contact with the Complainant’s breasts, such contact was neither intentional nor for any sexual purpose.

At issue is whether or not the Crown has proven the commission of the offence beyond a reasonable doubt. [ 3 ] At the trial of this matter a total of four witnesses testified: two police officers, the Complainant and the Accused. Following is a

summary of the facts as I find them, a

summary of the applicable law, and my application of the law to the facts in the present case.

Summary of Evidence [ 4 ] On the morning of September 13, 2014, the Complainant and a friend of hers went to a vacant lot located at the northeast corner of Trethewey Street and Simon Avenue in Abbotsford, BC. Today there is an active construction project on the site, but at the time there was no activity on the lot. A deep excavation had been dug there at some point in the past. The Complainant went there to collect rocks, a hobby of hers. That morning she and her friend rode their bikes to the site and arrived there at around 6:00 a.m.

The Complainant was hoping to find opal stones. [ 5 ] The Complainant recalls that it was cold that morning and she was wearing a sweatshirt. When she and her friend arrived, they were the only people around there at the time. Her friend drew her attention to certain areas which contained different varieties of rocks before the two of them split up and explored different areas within the site. [ 6 ] The Complainant was occupied with her hunt for interesting rocks and she recalls that the time passed quickly. The lot covers a large area, close to an entire city block.

Elevations change in different parts of it and she estimates that the excavation may be 15 or 20 feet deep. It was easy for her to lose sight of her friend, who went to look in an area closer to Simon Street, while the Complainant looked in an area closer to Tretheway Street. The Complainant estimates that she was there for over four hours. She placed the rocks that were of interest to her in two bags. One was a cloth shopping bag that she had brought with her and the other was another bag that she had found. [ 7 ] At around 10:30 a.m. the Complainant decided to leave so that she could go to see her daughter.

She told her friend that she was leaving and picked up her two bags of rocks and tried to place them on the handlebars of her bicycle. It was at that time that two men arrived at the scene. One was a Caucasian male whose age she estimates at around 45, and the other was a South Asian man that we now know to be the Accused. She wasn’t sure if the two men were together or not, but she saw them head north in the direction of a Husky Gas Station located at the southeast corner of Tretheway Street and George Ferguson Way.

Shortly after this, the Accused walked back in her direction, alone this time, and walked past her towards her friend. She saw him offer her friend something, but she couldn’t tell what it was. She could see the other male in a different part of the lot. [ 8 ] The Complainant continued getting ready to leave. She was wearing a flannel shirt with buttons up the front and a pair of blue jeans. She had taken off her sweatshirt earlier and it was now hanging over her shoulders. As she was putting the bags of rocks on her handlebars, the Accused approached her.

He told her that the bags looked heavy and she agreed with him. The Accused offered to help her, but she said no. The Accused then offered to help her with her sweatshirt but she once again declined his help. He stood directly in front of her as she was holding the bike upright by the handlebars and leaning it up against her right leg. [ 9 ] The Complainant testified that the Accused reached to grab her sweatshirt and as he did this, he brushed the back of his hands against her breasts.

The Complainant believes that this was an intentional act on the part of the Accused and that he left his hands pressed against her breasts for one to one and a half seconds. The Complainant testified that she became angry and said “don’t, I’ve got this” and added that she may have also directed a profanity towards the Accused. She backed up her bike away from him as much as she could without it falling over. [ 10 ] If the Accused had left matters there, things might not have advanced to their present state. The Complainant testified that he did not.

She describes what happened next as follows: Complainant: He came around my left side behind me and insisted on fixing my sweatshirt, putting it over my shoulders, and took the sleeves and when he went to put the sleeves over my shoulders he grabbed my breasts. Ms. Tsui: Did he grab your breasts with one hand or with both hands? Complainant: One of them on each breast. Ms. Tsui: Can you describe what the grab was like? Complainant: Um, like testing the ripeness of a cantaloupe. I guess a squeeze, like. Ms. Tsui: And how long did this contact last?

Complainant: About a second. Ms. Tsui: And what was your response? Complainant: Um, I tried to push my arms so that they would unblock me from him and I stepped out of his grasp, I don’t know what to call it, and turned around turned around in front of him and said “f off, you don’t do that here, this is Canada” and something in regards to, “you don’t do that here, that’s not right. I said no.” [ 11 ] The Complainant picked up her bicycle and left, leaving her bags of rocks there.

She said “I wanted to get out of there fast.” She rode her bike to a friend’s place not far from where this took place and she called police. Since the incident occurred within a few blocks of the Abbotsford Police Department, the Complainant was asked to come there to make her statement. She did so, and drove her bike past where the incident had taken place, in part because it was directly on her route, and in part because she was concerned about the friend she had come to the site with.

She found her friend there and informed her that she had called the police. [ 12 ] It was then that the Accused approached her again, at the entrance to the site. She said that he was holding a can of Colt 45 beer. She testified that the Accused offered her $2 in change and the rest of his beer, placing it on a pylon. The Complainant told him no, and said “I’m not a hooker. I don’t want your beer or your money.” She could not recall if she told him that she had called the police. [ 13 ] The Complainant and her friend then went to the police station where she made her complaint.

She later returned to the site and the Accused was still there. Police arrived shortly after she did and she pointed the Accused out to the police, who placed him under arrest. [ 14 ] The Complainant underwent a vigorous cross-examination in which she was asked questions about her past. She admitted to using crystal methamphetamine in the past, but said that she has been clean from substance abuse since April of 2014, almost five months prior to this incident. She had been in a serious car accident, but she addressed her pain with over-the-counter medication.

She did not use prescription medication for fear that it might trigger her previous addiction. She testified that she was completely sober and had not used any drugs at the time of the incident. She added that her accident did not leave her with any memory issues. [ 15 ] Giving evidence was particularly challenging for the Complainant because she suffers from social anxiety disorder. She is on a disability because of her condition.

Throughout her cross-examination she maintained a calm and respectful demeanour and rejected the suggestion that this was all something that she misperceived because of her “super-sensitivity”. She gave the following answers in cross- examination: Ms. Gill: See I put it to you that your sweatshirt was over your shoulders, first the gentleman came up, he tried to tie it from the front, that didn’t happen, and then he went behind you and tried to tie it up from the back, that’s all he did. Complainant: No. Ms.

Gill: But because of your super-sensitivity, or your heightened awareness of social situations, you took it the wrong way. You thought he was trying to sexually touch you. Isn’t that fair? Complainant: No. Ms. Gill: And all he did was try to help you. Complainant: No. Ms. Gill: And he accidentally may have touched your breast, may have brushed your breast, but he didn’t touch them. Complainant: No. He grabbed them. Ms. Gill: He didn’t squeeze them. Complainant: Yes he did. Ms. Gill: That’s something you, your over-imagination is making up. Complainant: I don’t over-imagine. I’m a very real person. Ms. Gill: Yeah.

It’s because you have this over-sensitivity. Complainant: So it causes me to hallucinate you’re saying? [ 16 ] It should be noted that the version of the incident which was put to the Complainant in this exchange did not match the version later given by the Accused, who denied that he had approached the Complainant from the front. The Complainant maintained in cross- examination that the touching was of an intentional nature.

When the statement that she gave to police was put to her in cross- examination, she agreed with the description of the touching that she gave to police shortly after the incident, which described the Accused’s actions as if he was “testing for ripeness.” [ 17 ] The Complainant maintained that the touching was not something that she imagined. She was criticized in cross-examination for going to the area, when she knew that this was a place where men hung around. The Complainant maintained that events occurred as

she had described in her examination-in-chief throughout what was a very intense and aggressive cross-examination, in which she was accused of making up stories. At one point, even though the question did not figure into the defence of accident raised by the Accused, the Complainant was asked this question: Ms. Gill: Was this some sort of a plan between the two of you, to go there looking for some action? Complainant: I had a boyfriend at the time. I’m monogamous.

I don’t go out looking for that sort of thing. [ 18 ] The Complainant remained unshaken and consistent in her evidence throughout cross-examination. [ 19 ] The two police officers who attended to the scene both recall that the Accused appeared to be under the influence of alcohol. Constable Tyler Siemens testified that the Complainant pointed out the Accused to him and he arrested the Accused. He describes the Accused as “intoxicated, but cooperative”. He testified in cross-examination: “Yes, he was intoxicated, quite intoxicated at the time.” He went on to give the following answers: Ms.

Gill: His level of intoxication? Cst. Siemens: Slurred speech, uneasy on his feet, in terms of his movements, they were, uh, how would I describe them, not smooth fluid movements as you’d expect for someone that was sober. [ 20 ] Constable Phillip Sawatsky testified that when he arrived at the site of the alleged offence, he found the Accused sitting at the scene. He described the Accused as follows: Cst.

Sawatsky: As he was walking towards me, I noticed that he was holding an open can of Colt 45 beer, and as he approached me I immediately took him into custody and detained him for investigation of sexual assault. Ms. Tsui: And at this point are you able to recall if you made any observations about the demeanour of the Accused? Cst. Sawatsky: Um, from what I can recall, I didn’t make any notes in my statement or in my notebook, but from what I can recall that he was intoxicated.

Like I said, I don’t know the symptoms that I noted at the exact time, but I believed him to be intoxicated and the fact that he was drinking a beer at the time. [ 21 ] The Accused testified with the assistance of an interpreter, although he habitually began to answer questions before waiting for the translation, and was cautioned about this. In his evidence he admitted that he was present at the lot where this offence was alleged to have occurred on the alleged offence date.

He said that this lot is close to his house and he often comes there to sit. [ 22 ] The Accused described his interaction with the Complainant as follows: Ms. Gill: What happened then when you were sitting? Accused: There was a girl, a lady there, on the bike, and she had two bags with her. They were heavy in weight and her bicycle was falling about here and there. Her sweater fell off. I picked up the sweater, put it over her shoulders. It may have been the accident that I may have touched her. [ 23 ] The Accused later explained the interaction. He said: Ms. Gill: When that happened what did you do?

Accused: I didn’t do anything, but her sweater had fallen. As she was sitting on the bicycle that she was not able to pick it up, I picked it up, put it over her shoulders. I had no intentions whatsoever of, I only helped her. Maybe suddenly, accidentally, my hand may have touched her. That’s all. [ 24 ] The Accused testified that the sweater had fallen off of the Complainant’s shoulders.

He was asked by his counsel why he didn’t simply hand the sweater to her and he replied that he put the sweater over her shoulders “because her hands were not empty.” He testified that he put the sweater over her shoulder over her shoulder standing from the back of the Complainant. He said he did this because “that’s the side I was coming from.” He was asked if he touched the Complainant’s breasts. He said “I don’t know. Accidentally I may have touched her. I have no idea.” He denied that the Complainant told him to get away.

He said that she just left on her bike. [ 25 ] The Accused also denied that he had drunk any of the beer that the police found him with, or that he had been drinking at all. He said “I had one beer in one of my pockets, but I had not taken it.” He said that the beer was not open and that he didn’t have any alcohol to drink that morning. In cross-examination he said that this beer was unopened and that it was a Colt 45. He also denied offering the Complainant any money or offering her any beer.

He stated in cross-examination, “the woman never saw the beer I had” and that he definitely did not drink any of the beer. [ 26 ] The Accused denied speaking to the Complainant. He testified in chief: “Because I do not understand English, she did not speak

to me whatsoever, neither did I.” But later in answering questions from his lawyer he gave the following evidence: Ms. Gill: Did you at any point say to her “let me help you with your sweatshirt”? Accused: How do you mean? Ms. Gill: When you picked up the shirt and went to put it over her shoulder, did you at any point say anything to the lady? Accused: No. Ms. Gill: Did you say anything like “let me help you”? Accused: At the time when I was giving it to her, that’s when I said, uh, “Let me help you”. Ms. Gill: Okay, well what words did you use sir? Accused: All I said was, “do you need help.” Ms.

Gill: Exact words Mr. Gill. Accused: Because I don’t know English, that’s all I said. Ms. Gill: Some you used some words in English, some in Punjabi? Accused: Yes. Ms. Gill: And do you remember what she said, if anything? Accused: No. [ 27 ] In cross-examination the Accused denied that when police arrive the beer he had was open. He insisted it was unopened and denied that he had been drinking anything on that day.

He told Crown Counsel “I did not drink, definitely did not drink.” He agreed that he remained at the location from the time that he had contact with the Complainant and the time that the police arrived. He said that he only tried to help the Complainant with her sweater on one occasion and he expressly denied that he squeezed the Complainant’s breasts. When asked by the Crown about what conversation he had with the Complainant, he said the following” Ms. Tsui: And did you talk to her before you tried to put the sweater on her back then? Accused: No. Ms. Tsui: Then when did you talk to her?

Accused: I never spoke to her. Ms. Tsui: But you said earlier that you offered to help her, that you asked if she needed help. Accused: As I was getting up, I asked if you need help because both of her hands were now busy, she was unable to pick up the sweater. Ms. Tsui: Did you say -- Accused: For that reason I asked her if she needed help so I picked up the sweater and placed it over her. Ms. Tsui: Did she respond to you asking her whether she needed help? Accused: No. Applicable Law [ 28 ] Sexual assault has been defined by the Supreme Court of Canada in R. v.

Chase [1987] 2 S.C.R. 292 as an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. An assault is more fully defined in

section 265 of the Criminal Code , and it includes the intentional application of force to a degree that is not de minimis and to which the victim does not consent. Because an assault must be an intentional application of force, the defence of accident applies. [ 29 ] Under the present circumstances, if I am satisfied beyond a reasonable doubt that events transpired as described by the Complainant, then the offence has been proven.

It is clear on that version of events, that there was an application of force without the Complainant’s consent, that the force applied was more neither trifling nor accidental, and that the nature of the assault was such as to violate the sexual integrity of the Complainant.

Conversely, if it is reasonably possible that any contact between the Complainant and Accused took place as he described or that the contact may otherwise have been accidental, of if there is reason to doubt the Complainant’s version of events about an essential element of the offence, then the Accused is entitled to an acquittal. [ 30 ] The evidence of the Complainant and that of the Accused are markedly different on a central issue in this case, that being the manner in which the Accused may have touched the Complainant. The test in a criminal trial is not one of who I believe, but whether or

not the Crown has proven the offence beyond a reasonable doubt. I am required to consider whether, on the total body of evidence,viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. [31] In R. v. Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence.

It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty. [32] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v. D.W. (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [33] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Justice Wood gave the following furtheradvice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [34] There are a number of considerations which a court can apply when determining issues of credibility. Firstly, a court mayconsider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or otherbehaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonestconduct proven, such as false statements made to police in the course of the investigation. [35] A court may also consider the demeanour of a witness while that witness gives testimony, but I concur with those who believedemeanour to be one of the least accurate barometers of credibility, especially when one factors in cultural, educational, language andsocioeconomic considerations. [36] The credibility of a witness may be assessed by its internal consistency, which is by the presence or absence of anycontradiction within itself.

It may also be assessed by its external consistency, which is by the presence or absence of any contradictionwith the remainder of the evidence. [37] An issue was raised concerning the Crown’s failure to call the Complainant’s friend who was with her on the alleged offencedate as a witness as part of the Crown’s case. The Complainant testified that she has attempted to locate this person, but has not been ableto contact her and has not seen her for over a year. The law regarding the failure by the Crown to call a witness was summarized by theBritish Columbia Court of Appeal in R. v.

Jackson 2005 BCCA 539, where Justice Levine stated, at paragraph 35: [T]here is no requirement that the Crown call all the witnesses who might have relevant evidence, including a complainant. In order toprove its case, the Crown must call all witnesses whose evidence is "essential to the narrative" (see R. v. Cook at para. 31; R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, discussed in R. v. Cook at para. 30). If the Crown does not call all such witnesses, it risksnot proving all of the elements of the offences charged.

In some circumstances, where no explanation is given for the failure to call thecomplainant, the trier of fact may consider drawing an adverse inference (R. v. Cook at para. 51).

Where, as in this case, the evidence"essential to the narrative" has been given, drawing an inference that another witness' evidence, on the same matters, would be adverse tothat given, would ignore the principles that the Crown has discretion in putting in its case, including which witnesses to call, that thereare many reasons why a particular witness would not be called, and that the defence may call a witness who he thinks may be helpful tohis case. [38] In this case I am satisfied that sufficient explanation has been provided as to why the Complainant’s friend was not called as awitness in this case.

The circumstances here do not merit the drawing of any adverse inference against the Crown because of the failureto call the Complainant’s friend as a witness. Analysis [39] The Accused has testified in this case and according to his evidence he denies touching the Complainant in the manner that shedescribes. He says that he does not believe that he ever touched the Complainant’s breasts, but that if he did, it was an accident. There area number of pieces of independent evidence which lead me to conclude that the Accused is not being truthful in his testimony.

Firstly,the Accused’s testimony that he did not consume any alcohol on this occasion is in conflict with the evidence of two independentwitnesses, Constables Sawatsky and Siemens. Both of these officers were clear in their evidence that the Accused not only showed signsthat he had consumed alcohol, but they each go so far as to describe him as “intoxicated.” The failure of these officers to make morecomprehensive notes about the state of the Accused’s intoxication does not convince me that they were both mistaken about this.

Rather,I am satisfied that it was the Accused who was not being forthright in giving his testimony about the state of his sobriety.

[40] I am also satisfied that the Accused was not being truthful when he testified that he did not show his Colt 45 beer to theComplainant. If that were so, it would be a remarkable coincidence for her to guess the precise brand of beer that he had in his possessionwhen he was arrested. The Accused’s evidence that his beer was unopened is at odds with the evidence of Constable Sawatsky.

TheAccused’s evidence was also internally inconsistent within itself on the question of whether or not he spoke to the Complainant.Sometimes he said that he told the Complainant “let me help you” and other times he said “I never spoke to her.” [41] For these reasons I do not believe the evidence of the Accused.

I believe that he is a witness who is willing to depart from thetruth if it puts him in a better light, even when his version of events is clearly contradicted by reliable independent evidence. [42] Counsel for the Accused stated that her client should be believed because he lacked a motive to commit the offence, given howan offence of this nature might adversely affect his status as a refugee. I do not see this as a particularly compelling reason why a personmay use poor judgement such as may have been exercised in this case. In the case of the Complainant however, different considerationsof motive apply.

As a person who suffers from social anxiety to a degree supporting disability benefits, it is much less likely that theComplainant would fabricate a false sexual assault and subject herself to intense scrutiny simply to attract attention. [43] I agree with Crown Counsel that the Complainant presented as a very credible witness. Her evidence was internally consistentwithin itself and it was also externally consistent on a number of collateral details including the brand of beer that the Accused wasdrinking.

She answered questions put to her directly and was not argumentative, belligerent or hostile, even when it was suggested to herin cross-examination that she had gone to the site of the offence, an inactive construction site, “looking for action.” [44] Nothing in the evidence supports the theory of the Defence that the Complainant was reading too much into the Accused’sactions or that she misperceived the event due to a heightened sense of awareness. The manner of the assault described by theComplainant was a very deliberate act.

The squeezing of her breasts that she described was not something that could have occurredaccidentally or unintentionally. The Complainant’s actions following the sexual assault were not unreasonable and I find nothing unusualor suspicious about a complainant who has been sexually assaulted returning to the location of the assault out of concern for the safety ofa friend. [45] In assessing the Complainant’s credibility, I keep in mind the comments of Madam Justice L’Hereux-Dube of the SupremeCourt of Canada in R. v.

Seaboyer (SCC), [1991] 2 S.C.R. 577 at paragraphs 137-9, noting that this is an offence whichoften goes unreported. I also note her comments pertaining to the reliability of such complaints as follows: The preoccupation of the law with the credibility of the complainant in such cases and the blatant stereotyping of such complainants asuntrustworthy are difficult to comprehend. As we have seen, sexual assault is the most under-reported of all violent crimes. Even after areport, the police and prosecutors filter out a significant number of the complaints based upon their congruence with rape myth andstereotype.

Logically it would seem that the likelihood of false complaints is, in this context, much reduced compared to that for mostcrime. Indeed, there is no evidence to support the contrary. [46] I do not wish to imply that I interpret this statement as suggesting either that complainants in sexual assault cases have somespecial status when it comes to credibility or that there is any adjustment or shifting of the burden of proof of these types of cases. Theburden of proof always rests with the Crown to prove all of the elements of the offence beyond a reasonable doubt.

I find that in this case,the Crown has met that burden. [47] For the reasons stated previously, I find that the evidence of the Accused is not credible, nor does it form the foundation of anyreasonable doubt. I find the evidence of the Complainant to be very credible. In accepting that evidence, I find that the Crown hasproven, beyond a reasonable doubt, that the Accused intentionally, and not accidentally, applied force to the Complainant that was nottrivial and that he did so without the Complainant’s consent.

I find that the nature of the force applied, specifically the squeezing of theComplainant’s breasts, was of a nature that would violate the Complainant’s sexual integrity and dignity. [48] The Crown has proven all of the elements of the offence of sexual assault beyond a reasonable doubt and I find the Accusedguilty of the offence set out in the single count on information 81581-1. Dated at the City of Abbotsford, in the Province of British Columbia this 1st day of October, 2015. __________________________________________ (The Honourable Judge K. D. Skilnick)