R. v. Richardson Date:, 2011 BCPC 510

Citation: R. v. Richardson Date: 20110330 2011 BCPC 0510 File No: 82241-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARDSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DE COUTO Counsel for the Crown: P. Ng Counsel for the Accused: J. Desbarats Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: September 27, 28, 29, 30, October 1, 2010 Date of Judgment: March 30, 2011

[ 1 ] THE COURT : The accused, Mr. Richard Richardson, is charged with sexual assault of T.W. at or near Maple Ridge with the event occurring between the 5th of February and the 28th of February, 2009. As was pointed out, the sole witness for the Crown providing evidence of that assault was the complainant, T.W.. [ 2 ] The Crown, in the course of its case, also called two other witnesses to set up the background for the calling of Mr. T.W.; Constable Obermayer (phonetic) who at that time had been an RCMP officer for some two-and-a-half years, I think, or less.

He was dispatched on a call and attended on February 28th, 2009 to a residence in Pitt Meadows where he spoke to the complainant and his sister. He obtained a statement from the complainant, but as was pointed out in the course of cross-examination, it was obtained in the presence of his sister, who I gather assisted Mr. T.W. in providing the details to the officer. In cross-examination, Constable Obermayer said at the time he had only five months service. [ 3 ] In addition to Constable Obermayer, the main investigator, Constable Rasuk (phonetic), was called.

He did a comprehensive interview of the complainant on May 5th at the Ridge Meadows RCMP Detachment which was audio and videotaped and that one was done in the sole presence of the complainant and no one else. [ 4 ] That leaves the testimony of Mr. T.W. who provided his background to the Court. It commenced with evidence leading up to what occurred.

That background reveals an individual with a very limited education, a harsh and hard background, an individual who for all intents and purposes remained homeless from time to time, and just prior to finding a residence in the accused's home which was as a result of a chance meeting at a welfare office, was at The Caring Place in Maple Ridge run by the Salvation Army for the homeless.

So we have an individual with that background, that is, an individual in essence with little stability. [ 5 ] Compounding that is an individual who advised the Court of issues with mental health where -- and he had told the Court it was some 20 years ago -- he was diagnosed with an anxiety disorder and a bipolar disorder, the latter resulting in mood swings and the former resulting in panic attacks.

He advised that by that he meant that there was always this feeling he had that he was going to die and other upsetting ideas of the like. [ 6 ] To control both of those disorders he has been taking a number of different prescription medications. They are to control his mood swings with respect to his bipolar disorder and to provide some stability and a sedating effect with respect to other anxiety disorders which at times has caused him difficulty in sleeping. The prescription medications were to in

part control that and in part to also control the panic attacks. At the time he testified he was still taking such medications. [ 7 ] He testified that his mother passed away in 2006 and as a result he ended up using street drugs, which in his case was heroin. He took acid when he was 17 but had been sober for some 48 days in terms of street drugs. He was also on methadone. [ 8 ] As I said he comes from a hard background and in my view the evidence he gave, the manner in which he testified and his demeanour, must take into account that background, that unsophistication. [ 9 ] Also, as was pointed out by Mr.

Desbarats in his submissions this morning, he was certainly an individual not of good character in the sense that he readily admitted to a criminal record, readily admitted to having an outstanding charge of assault, and with respect to the others, the substance addiction and the like, he readily admitted to those as well. [ 10 ] It became apparent too, it seems to me, from watching his demeanour and listening to his evidence very carefully that unlike perhaps counsel or I or others who live in an otherwise normal environment, that keeping track of time and dates was not a priority for him.

In my view given the kind of background he came from and the kind of environment he survives in and lives in, that is understandable. [ 11 ] With respect to the incident in question, he testified that he met the accused at a welfare office. The two of them started talking and as a result he found out that the accused had a place with a room to rent which he took him up on. [ 12 ] There was supposed to have been some arrangements made between the welfare office with respect to payment of rent being given directly to the accused but I gather that did not turn out that way.

Nonetheless the complainant did end up staying in the accused's residence which was comprised of two floors as I understand it, with two bedrooms on the top floor and one or two on the lower floor. [ 13 ] Mr. T.W. described the house as kind of worn down and not in good shape. He said it was run down but by his standards fairly decent and it provided him certainly with certitude with respect to a roof over his head. [ 14 ] He described the incident in question, testifying that he was sleeping in his bedroom when he was awoken to a sensation around his groin area and described what he saw.

He testified he saw the accused, Mr. Richardson, with his head in that area, his penis was out, and Mr. T.W. described that area as being "wet and gooey". As a result he was alarmed and pushed Mr. Richardson's head away, whereupon he described Mr. Richardson as running out of the room saying, "Sorry, sorry, sorry". Mr. T.W. said that incident really “bugged” him. [ 15 ] He said that given his disorders and his experience of sometimes having to get up and walk around, he slept in his jeans and sweaters, and in the cold weather, wore long johns as well.

On this particular occasion he had on jeans and underwear and described how the top button was undone and the zipper down but his jeans were not pulled down. [ 16 ] He said that there was light in the area in the sense of visibility and that the source of that light was from the bathroom which opens into the kitchen area. His room also opened into the kitchen area to the right of the bathroom where he described the light coming from. As I understand it, his room was the first room to the right of the bathroom and it was ambient or reflected light from the

bathroom that shone into his room. He was clear in his evidence that the light in the kitchen area was off. [ 17 ] With respect to that discrepancy and other similar discrepancies, Mr. Desbarats on behalf of the accused points to them and advises the Court that those support the theory that the complainant, Mr. T.W., and his testimony are unreliable. However, as I have said, I think it is important to bear in mind where he comes from. As has been said time and again in the past, the Crown does not have the luxury of picking and choosing their witnesses. They take what they get and Mr.

T.W. is clearly one of that kind. [ 18 ] As was pointed out by both counsel, it is clear that Mr. T.W. was vague if not uncertain with respect to the details as to time and the exactitude of time as to when the incident occurred. He used some reference points and as was pointed out by Mr. Desbarats, it would appear that while we may accept the exactitude of what he says, it is inconsistent. As an example he described the situation in which he says he was offered Valentine's candies from the accused which he turned down.

He said it was Valentine's Day and the reason he turned it down was because of this incident, thereby placing it prior to February 14th. [ 19 ] Then it was admitted that he was involved in a confrontation that occurred between the accused and another resident in which he intervened and protected the accused. He said he would not have done that after the incident and that was placed as having occurred on February 15th. So, clearly, there is an inconsistency as to time or date. [ 20 ] In my view, the substance with respect to each of those incidents however has not been challenged.

As stated earlier time and place perhaps were of less meaning to him than to you or I but with respect to substance as to what occurred on those two days, he has not been challenged, and that is, the providing of Valentine's candies by the accused to the complainant, and the intervention by the complainant in protecting the accused in a confrontation between him and the other tenant. [ 21 ] I might add that Mr. T.W. was consistent with respect to describing the substance of those two incidents and as pointed out by the Crown his testimony with respect to the substantive matter was unshaken.

It is true that in the course of cross-examination he described his condition differently, that it perhaps varied from what he had said in the earlier statements in terms of his sobriety and his consumption of either drugs or alcohol having an impact on him. [ 22 ] Notwithstanding all of this, and as was pointed out by the Crown, it seems to me that when the complainant was unsure about a situation he readily admitted to that.

When he did not know something he was prepared to acknowledge that, but when he knew something to have occurred he was firm. [ 23 ] In my view, upon observing his demeanour and bearing in mind those other limiting factors that I have referred to, I did not find him to be evasive in his responses. He seemed to have thought carefully before responding, and the responses may not have come out in a very cultured and sophisticated way in expressing his thought or articulating what it was that he wished to say, but nonetheless I found that he tried his best with the limits that he has.

In that sense and to that extent I also find he was in fact candid in describing what occurred. [ 24 ] He readily admitted he did not go to the police right away. He waited a while, he said, because of the consequences. He did not go to The Caring Place right away either because he was ashamed and did not want others to think badly of him because of the shame that he felt. [ 25 ] I was under the impression from watching him, as was pointed out by the Crown, that quite frankly he called it as he saw it.

To that extent and degree he was straightforward in his testimony. [ 26 ] The other aspect of the case as was pressed upon by the Crown is motive and animus and the lack of it in this case and I think that is a valid factor for consideration here. [ 27 ] Mr. T.W. was homeless at the time in the sense that he did not have a place that he could settle in and call home. He was at The Caring Place looking for a place to stay. He came upon the accused fortuitously. The accused offered him a place to stay and provided him with the room which Mr. T.W., as I have said, described as decent.

While they may have had disagreements with respect to food or rent, it is not unusual to have disagreements of this sort. It does not mean much in terms of animosity as such to the extent and degree as suggested with respect to (

a) going to the police and the laying of the charge, and (

b) in making up the evidence that Mr. T.W. testified to with respect to the nature of the sexual assault. [ 28 ] He also intervened in a confrontation between the accused and another to protect the accused. Given all of that, what would be the purpose, what would be the motive in thinking about it and going to the police, laying the charge, coming to court in a foreign environment to the extent that he is in court as a witness and not as an accused and admitting to sordid details like I said he was ashamed of which I think that became evident on the stand?

It was not a situation that he found pleasing or pleasant or being in an environment that he found himself comfortable in.

I think that was also expressed more so in cross-examination in bouts of frustration that percolated above the surface from time to time. [ 29 ] There was I find no real motive or animus to such an extent that would cause the complainant to go to the police with an allegation such as this. [ 30 ] As was pointed out by the Crown with respect to the incident itself, as with the other two incidents that I described where the substance of it was consistent, I find that there was consistency within it in what he described as taking place.

He was very clear that it was the accused; in fact he described the accused and described the physical characteristics of the other tenant at the time, the resident Andy Dounonis, (phonetic) and they were two very, very different individuals in stature and hair growth. He was insistent and very clear that it was the accused and explained why it was the accused in terms of the hair and the size. I accept his evidence on that. In my view and as was said by the Crown the substance of the allegation remained unshaken.

[ 31 ] On considering those factors that I have referred to with respect to his reliability and accuracy of recollection with respect to the substance and the general timeframe that he attached to it which has been conceded, I am satisfied that it fell within the timeframe set out in the Information. [ 32 ] I accept the evidence of Mr. T.W. and in so doing I am satisfied that the Crown has established the charge and proven it beyond a reasonable doubt against the accused and I accordingly find Mr. Richardson guilty as charged. (ORAL REASONS FOR JUDGMENT CONCLUDED)