R. v. Roper Date:, 2011 BCPC 294

Citation: R. v. Roper Date: 20111005 2011 BCPC 0294 File No: 84003-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES L. ROPER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: A. Blunt Counsel for the Accused: M. Ritzker Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 5, 2011 Date of Judgment: October 5, 2011 [ 1 ] THE COURT : The accused is charged with two counts in the Information before the Court, namely: 1. that on March 3rd, 2010, in committing an assault on one C.M., he used a weapon, a knife; and 2. on the same date, that he without lawful authority confined C.M., contrary to s. 267(

a) and s. 279(2) respectively of the Criminal Code of Canada . [ 2 ] Both alleged offences are said to have occurred in Maple Ridge, at a home located on 287th Street. This home was where the accused's late father, one Earl Roper, Sr., lived. Mr. Roper passed away in February 2010. I shall refer to this home as Earl, Sr.'s home or residence in these reasons. He was generally referred to as Earl, Sr. by those who knew him.

He has a son, one Earl, Jr. also Earl Roper and the accused is also his son. [ 3 ] The person referred to in the Information as C.M. is one Cathy McIntyre, a single mother, aged 51 at the time of the trial. [ 4 ] Crown called some six witnesses in this case. The defence called two, namely, Mitch Einarson, a young man who was living with the accused at Earl, Sr.'s residence and Earl, Jr. The accused did not testify nor is he required to do so. The onus is on the Crown to prove the two charges against the accused beyond a reasonable doubt.

[ 5 ] I turn now to a

summary of the evidence given by the main witnesses at the trial before me. [ 6 ] Cathy McIntyre was called by the Crown. She was, at trial, aged 51 and stood some five feet, one or two inches in height and said she weighed 105 pounds, ten pounds more than she did in the month of March 2010. [ 7 ] She said that, after moving to British Columbia at age 13, she had lived most of her life in Maple Ridge.

She is a very small person and appeared both afraid and I think, too, somewhat timid when she testified in Court before me. [ 8 ] On November 19th, 2010, she was on disability income making about $900.00 a month, but said she made some additional income doing cleaning work. She had met Earl Roper or Earl, Sr. in 2001 and thereafter had done odd jobs for him, for example, cleaning his home and doing laundry. She had attended Earl, Sr.'s funeral earlier in 2010. Earl, Jr. was present, but not James. [ 9 ] She attended a dinner at his home on 287th Street in Maple Ridge later the same day.

James was present for this event. Earl, Jr. asked her to return later to clean his dad's car, a Mustang motor vehicle. She had earlier discussed this task with both Earl, Sr. and his son, Earl, Jr. The arrangement was that she would be paid $200.00 to get the mould out of the car. [ 10 ] She first attended Earl, Sr.'s home on 287th Street to do this job on March 1st or 2nd, 2010. Both sons were there when she arrived in her own car. The Mustang was in the driveway. She got a bucket and some cleaning materials and started to scrub the car which was covered in mould from top to bottom.

She said she took the seats out and then said James did. In any event, no one helped her with the cleaning. The job took two days. [ 11 ] She spent four to five hours the first day finishing work but not the whole job after dark and this day had only a brief conversation with James who she said kept trying to get her to go into his dad's home. She did so on the first day. Earl, Jr. was present. [ 12 ] She described the home as a three-storey residence with the entry on the second level where the kitchen and front room are located.

This first day she went up to the third level where Earl, Sr.'s bedroom was located and his stuff was stored. She did not know what other rooms were located upstairs. They gave her some of Earl's stuff this day. [ 13 ] On the first day, Earl, Jr. told her she would be paid to clean the car and James told her the amount was $200.00. She discussed payment after the first day and James told her he had some money and that she should come up later in the evening and he would pay her.

She went home to Christina Johnson's where she was staying at the time and returned to Earl, Sr.'s home later in the evening on the first day. James was present but did not pay her in cash. He showed her four prepaid credit cards that were supposed to have money balances on them. He did not give them to her this night. He kept them. She did not stay long and left within an hour. [ 14 ] She testified that the first day she felt safer at Earl, Sr.'s place because Earl, Jr. was there. On the second day, Earl, Jr. was supposed to be on hand but left in the morning without telling her.

She returned to Christina's home on the first day. [ 15 ] The next day she returned to Earl, Sr.'s home, leaving Christina's home about 9:30 a.m. or possibly the daycare at 9:30 a.m. The drive took about 15 minutes. On arrival, she entered Earl, Sr.'s home and got her bucket and cleaning things and again started to clean the Mustang motor vehicle which was of course located outside, saying that she wanted to finish the job this day. She worked on it for three to four hours. She said James was inside the home. Earl, Jr. was supposed to be there, but was not.

She recalls speaking to James several times this day about the car and again his wanting her to go inside the residence. [ 16 ] After three to four hours, the car was mostly done. The seats were drying on the porch. She then went inside the home and, in the kitchen, asked James about the money. At the time she had a feeling he did not plan on paying her. He said he had to go and get the money and told her to sit and wait. She did so, sitting on a corner couch in the front room.

James went upstairs and remained up there about five minutes, maybe more. [ 17 ] He then came down with his hands in his pockets and entered the dining room which had been changed into a bedroom at the time. He came out and approached her, still sitting, but he was holding what she described as a "big Bowie knife" in his right hand and held it up to her to the left side of her face pointed at her throat a couple of inches from her left shoulder. He forced her back and leaned towards her as he did so. He held her other shoulder with his left hand as he did so.

She described the knife to have an eight to ten inch long blade on one side and jagged edges on the other with holes in the middle of the blade. It looked like a "Rambo" knife as in a Stallone movie. [ 18 ] She testified James told her to do whatever he told her to do or else. She said, no, he would have to fight her. She said she asked or wished for the knife to fall out of his hand and it did. It fell on the floor, she did not know how. A fight started. He grabbed both her lapels and heaved her all over and then pulled her up facing him. The knife fell out of his hands as he grabbed her up.

She did nothing to make this occur, according to her direct evidence. She recalled putting her feet on the edge of the couch to push him to knock him down and succeeded in knocking the accused on the ground. The knife at this point was on the floor by the stairs. She recalled when it fell, she kicked it out of the way as James tried to grab it. She testified that the accused then grabbed her by her hair, arm and leg, clenching her up in a little ball and proceeded to drag her upstairs. She then felt if she went up, she was not coming down.

He dragged her up the first flight of stairs to a landing area with a window. All the while she was resisting, trying to push him off her and saying that he did not need to pay her if he did not want to. At some point she got her foot on his chest and kicked or pushed him off her towards the landing window. She then rolled off the landing which had no railing, dropping down a good five feet to the second level floor in front of the couch. He then got on her a second time and tried to drag her to the bedroom which was there.

He dragged her backwards with his arms under hers. [ 19 ] She recalled he punched her in the head during the alleged assault about 20 times as hard as he could, in her view. He was wearing gloves at the time. At some point when she was on the floor, she recalled he undid the top of her pants. When he got her to the bedroom, he opened the door and flipped her on the bed face up, with her legs against the wall. She was then finding it hard to breathe. She said he pinned her down with his hands on her shoulders and arm across her chest so she could not move. She heard him start to talk to someone.

She felt he was perhaps talking to himself. He had done so a few times earlier. The bed was located against the bedroom wall in a corner.

[ 20 ] In fact, he was talking to Mitch Einarson, a kid who had just moved there. She said when she saw him then (and she had not earlier seen him) she was never so happy to see someone in her life. She testified when she looked over, Mitch was sitting on the edge of the same bed. She felt he had just woken up from the noise. She had met him before through his stepdad.

She recalled James saying to Mitch, "I really fucked up this time, didn't I?" and words to the effect that he would have to kill her as she knew too much. [ 21 ] At some point in the bedroom she said she could not breathe and said she wanted to go and if she did, she would say nothing. James decided to let her go but said he wanted her to say nothing. She testified that she then wanted to say anything to get away. [ 22 ] James began to act as if he was going to give her the money so she said she went along with it even though she felt he would not.

She said she was not paid by James, but he did give her certain prepaid cards that he called money. They looked the same as the four she had seen the prior evening. He said there was $100.00 on two of them but he did not know which two. She did not believe him. These four money cards were later given by Ms. McIntyre to the police and were marked at trial as Exhibit 1, Tab 1, photo 15. [ 23 ] She left Earl, Sr.'s home at about 2:30 p.m. with the four money cards. On the way out she felt a tug and her cell phone went missing.

At one point in direct evidence, she said she was unsure if James took it or she dropped it. Later, she said he took it but she got him to return it. [ 24 ] At this point, just before she was able to leave the house she said she had said to James whatever she felt he wanted to hear, for example, "Just let me go, I won't go to the police, I won't say nothing". She said she was then very scared. She felt perhaps 30 to 45 minutes had elapsed from when James pulled a knife on her and when she left the house but said she had not looked at a clock.

After she left, she drove to Tim Horton's initially and then returned to Christina Johnson's townhouse. [ 25 ] Crown counsel asked Ms. McIntyre if she owed anyone money at this time. She said she owed one Steve Brayford $200.00. When Earl, Sr. had offered her cleaning work, she felt she would take the job so she could then repay Steve Brayford the money she owed him. [ 26 ] Ms. McIntyre went over the photos taken of her at the Maple Ridge RCMP detachment on March 3rd and identified herself, her injuries, and clothing therein.

She testified that she believed James Roper was approximately 6 feet tall and estimated his weight to be 170 to 180 pounds. She identified Mr. Roper in the prisoner's dock at trial but refused to point to him. [ 27 ] Lastly, she testified in her direct evidence that the photos in Exhibit 1 at Tab 1 were taken at the RCMP detachment on March 3rd, she thought at about 5:30 p.m. whereas those in Exhibit 1, Tab 2 were taken in the afternoon of March 5th, two days later, when she attended at the police station a second time. [ 28 ] Ms. McIntyre was very fully and rigorously cross-examined by Mr.

Ritzker on behalf of the defence at trial. She believed she had done nothing wrong to the Johnsons and felt she had acted like a grandma with them. She readily agreed that she had become scared of Paul, Christina's husband, doing her in and possibly took seriously what she perceived to be a threat of harm from him. She testified that when she went to their home on March 3rd after having been assaulted, they wanted her to go right back to Earl, Sr.'s to get her cell phone. She then thought perhaps there was a conspiracy between the Johnsons, Earl, Jr., and the accused to have her harmed.

She therefore felt unsafe with the Johnsons initially after March 3rd and while she slept on their couch on March 3rd, she spent one night or several nights thereafter in her car where she said she felt safer.

This was because her dog would alert her to people walking by outside her car. [ 29 ] She denied that she was fearful going to Earl, Sr.'s house on March 3rd as she felt Earl, Jr. would be there and he was, certainly on the 2nd. [ 30 ] She testified that the fellow she owed money to, Steve Brayford, was at the Johnsons having arrived on his bike having rode down from Kamloops a few minutes after she returned home after the alleged assault. She was in the washroom of the Johnson home when he arrived. He looked mad as she did not have his money when she had earlier told him she would.

She said before returning home to the Johnsons, she had gone to Tim Horton's to have a coffee and put on her shades to feel better for a few minutes. [ 31 ] She agreed that Earl, Sr.'s funeral could have been on February 12th, 2010. She said she was not good with dates and times. Earl, Jr. had invited her to the following social gathering or wake after telling her she was like family. She testified that she then considered herself somewhat safe with the Ropers. [ 32 ] On cross-examination, she said she first met James Roper just prior to Earl, Sr.'s death. She next saw him the day of the wake.

She denied she had known James for a considerable time prior to March 3rd and that she had earlier been paid by him to do housework at his house. Earl, Jr. had asked her to do the cleaning on March 3rd and said he would be there. [ 33 ] As to the alleged assault, she agreed the altercation was noisy. A considerable amount of noise was involved but denied she ever yelled or screamed. She admitted at times she was loud. She estimated she was in Mitch's bedroom for about 15 minutes. [ 34 ] She was cross-examined extensively about how the knife fell out of James Roper's hand.

She seemed not to be able to state exactly how this event occurred, whether it slipped out or fell out. She saw it fall to the floor and heard it hit the floor and saw it on the floor and then kicked it away as the accused reached for it. [ 35 ] She was shown a transcript of her police statement given to Constable Rast on March 5th and the following questions and answers were put to her by Mr. Ritzker. Insofar as this transcript refers to "R", R is of course for Constable Rast. Insofar as it refers to "M", M of course refers to Ms. McIntyre.

Beginning at line 1406 through to line 1423: R Let's -- let's back up just a little -- a little bit, okay Catherine? So when he has -- when he has the knife up to your throat and he has his arm around like he's a -- he's a pretty big guy. M (Nods head yes).

R So how -- what are you doing and what is he doing and where is -- M (Inaudible). R (Inaudible) the knife? M He was trying to haul me up the stairs and I actually kicked the knife out of his hands. R Okay. M So the knife landed down on the landing, in the couch or something like that, I don't quite know. R Did you see where the knife landed? M No. R No? Okay. M Just I know it landed down on the floor somewhere. R Okay. M Down in that area. R So the knife is gone?

M Yeah. [ 36 ] She denied several times in cross-examination that she had said to the police that she had kicked the knife out of the accused's hands, and once said she could not recall saying this. She repeated that she kicked it when it was on the floor. She testified she was pretty upset when she met with the police; she did not recall which one on March 5th. She suggested that if the responses she had given were inconsistent with I understood her trial testimony it was because she was upset.

She said she could recall things from the past pretty good and had no problem seeing the whole incident in her head. [ 37 ] Ms. McIntyre was cross-examined about various of the police photos and for example denied her black eye shown in one was as a result of something that had occurred one to three days prior to the date the photo was taken. [ 38 ] Ms. McIntyre testified that in terms of her health, she had a problem with her heart but did not state what, and epileptic seizures. She gave no detailed particulars of this condition save to state that her epilepsy did at times cause seizures but not too often.

She had had five or six in her lifetime. She had never blacked out that she knew of. They occurred mostly when she was sleeping. [ 39 ] As to her mental health, she said doctors had talked to her about her state of mind but that she had never received any treatment. She was not taking, and had never taken, any medications and the sense of her evidence was relating to a mental health condition.

She described herself as a single mom and said she had had help from community outreach workers in Maple Ridge. [ 40 ] At trial, in December 2010, she said she then had no relationship with the witness, Christina Johnson. [ 41 ] Finally, in cross-examination, Mr. Ritzker suggested to Ms. McIntyre that the evidence she had given in court was relating to something she had confused with another time or event in essence. She responded quite emphatically, "No, absolutely not". [ 42 ] Christina Johnson testified for the Crown. She had known the complainant since birth.

She was aged 24 on December 13th, 2010, the date she testified with her husband Paul being present in the courtroom. She grew up with Cathy's son, Jessie, whom she later dated for a period of time. Her mom had gone to high school with Cathy. [ 43 ] In March of 2010, she and her husband and two children lived in a townhouse in Maple Ridge. Cathy had lived with her for about three months, from the end of December 2009 into March of 2010. She was on income assistance but paid some rent while there up to the end of March 2010. [ 44 ] She was aware on March 3rd, 2010 that Cathy was doing cleaning work.

In the morning, Cathy helped her get her kids ready and take them to daycare and then Cathy dropped her at home at about 9:30 a.m. saying she was going to clean a friend's home and would be back a few hours later. She was then uninjured; perfectly fine. [ 45 ] About four hours later, in the middle of the afternoon, Cathy came back badly bruised and covered in blood. She was very shaken. It was about 1:00 or 2:00 p.m.

A family friend, one Steve, came over in the evening, she understood to receive repayment of some money Cathy had earlier borrowed from him. [ 46 ] When Cathy returned home, she said she was going to take a shower. When Christina questioned her as what had happened, she ran upstairs and locked herself in the Johnson bathroom. Cathy then went upstairs and Ms. McIntyre told her through the bathroom door that she was not going to call the police. Ms. Johnson then did so. Soon the police and an ambulance arrived. Ms. Johnson testified she sort of forced a reluctant Ms.

McIntyre to go to the Maple Ridge hospital to get checked out. She went with her in the ambulance. [ 47 ] She recalled Cathy got upset after being checked out at the hospital and at Cathy's insistence, the two women left after about one half hour and returned to Ms. Johnson's home. There, they met a police officer who took Cathy's bloodstained clothing. Cathy then left with him (but driving her own car) Ms. Johnson understood to go to the police station. Cathy later returned home.

[ 48 ] Ms. Johnson reviewed all the police photos and agreed they accurately depicted Cathy's injuries that she saw on the afternoon of March 3rd, 2010 at or about 1:00 or 2:00 p.m. The clothing she had on in the morning was the same as shown in the photos and what she had on her return at 1:00 or 2:00 p.m. on the afternoon of March 3rd. [ 49 ] Ms. Johnson said Cathy had had mental health issues as long as she had known to her. As to the type of issues Cathy had, Ms. Johnson testified as follows: A Cathy imagines things being there that aren't there and situations.

She'll make up situations that aren't true and someone will be talking and she'll think they're talking about her and it's yeah, she's -- Q I'm going to give you an example or I'm going to put something to you and I'll just ask you to comment if it is an example of what you're describing. My example is this: do you recall around the time of March 3rd any conversation involving yourself in the presence of your husband and Ms. McIntyre about her disappearing or being put in the trunk of a car? A Yeah.

My husband had crashed our car and totalled it and we had to go out and buy a new car, and the day he brought the new car home, him and me and my brother were standing outside looking over the car 'cause it was really exciting and my brother and my husband were standing at the car and my brother opened the trunk and was like, "The trunk's big enough to fit a body" and my husband was like, "Yeah, your body", and my brother is twice the size of my husband and so they were in a joking manner meaning that the trunk was very big.

After that, Cathy made comments that my husband and my brother were plotting to put her in the trunk of our car and make her disappear. The Court: Q Just a minute, please. I'm sorry. Was Cathy out looking at this new car with you, your brother, and your husband, Paul -- A Yes. The Court: Q -- or not? A Yes, she was. The Court: Q She was -- she was in the group, was she? A Yes. The Court: All right. A She was standing in the carport. The Court: Thank you. Carry on. Mr. Blunt: Q Is that an example of the types of mental health issues you have seen Cathy experience? A Yes, it is because she went on about it.

She told my neighbours that this is what my husband and my brother were going to do. She told my friends, and because of this I kicked Cathy out of my house and I'm not friends with her no longer. Q Can you tell us when in relation to this incident -- when I say this incident, I am referring to Cathy coming home with injuries and blood on her, can you tell us when in relation to that that you kicked Ms. McIntyre out. A About two weeks maybe a week and a half -- it wasn't very long afterwards. [ 50 ] In cross-examination, Ms. Johnson said Cathy lied about the dumbest of things; she made up things.

She was not all there. She was an habitual liar. She felt her reputation as to the truth in the community was not very good, nor was her reputation for being accurate in what she said. [ 51 ] Ms. Johnson further testified in cross-examination as follows: Q So I was asking you about Ms. McIntyre's reputation for truthfulness in the community and I believe you said it was bad. A Yes. Q And would you -- would you agree that you could described her as a habitual liar? A Yes. Q Now, I suppose this incident whereby she made these hurtful allegations about your husband and your brother were something

that caused you hurt? A Yes, it did. Q It did and especially at the time. A Yes. She has also called the Ministry on me about my children and caused me some -- just problems in my family life with fighting for my kids and being able to keep them at home because she keeps calling the Ministry and lying to them and telling them things that just aren't true. Like, I'm a great mom.

My husband's a great dad and we take very good care of our kids and she called and said that I was drugging my children with Tylenol, that I was neglecting them and just -- just like out there -- things that have nothing to do with the way I raise my children and I do have my children back and my custody, but you know I have had some issues because of her. Q Are you actually by telling this Court that you consider her a habitual liar, getting revenge on her? A No. Q And so is this -- it's not some kind of payback for -- for Cathy for all those terrible things that she said. A No, I'm telling the truth.

She lies a lot and about outrageous things. [ 52 ] I note the specific events referred to by Ms. Johnson in her testimony were real events, things that had occurred and had a basis in reality that in essence Ms. Johnson felt that Cathy had misconstrued or misunderstood. [ 53 ] In re-examination, Ms. Johnson said that she had at no time drugged her children, but admitted she had given her son on her doctor's advice Tylenol in Cathy's presence when he had the flu.

Three days after commencing to do so, the Ministry had attended at her home as a result of a call from Cathy which she made by reason apparently of her concern over Ms. Johnson's use of Tylenol. She agreed that the trunk incident and Tylenol issue and the lies Cathy told were formed in the context of something that did occur. She further agreed that her opinion that Cathy was an habitual liar was based on these types of examples: real conversations or events that Cathy had turned around. [ 54 ] Constable Shaw testified for the Crown.

He was dispatched at 5:05 p.m. on March 3rd to meet with the complainant and went initially to the Ridge Meadows Hospital and thence to Christina Johnson's home and there met with Cathy McIntyre. Cathy McIntyre was then emotionally upset, really distraught, and seemed scared, according to Constable Shaw's then observations. [ 55 ] He asked her to attend at his detachment to meet a female RCMP member, Corporal Clayton, and said Cathy seemed scared and did not want to go. Ultimately, she left in her car and he followed her. Later, he arrested Mr.

Roper on May 6th at his residence. [ 56 ] Corporal Clayton testified she interviewed Cathy at the police detachment on March 3rd from 6:35 to 8:15 p.m. and ultimately a transcript of the interview was produced. She reviewed photos she took of Cathy's injuries and said they accurately depicted what she saw on the evening in question. [ 57 ] During the interview, Cathy was definitely upset and it was difficult to get information from her. At one point, Cathy said she was sore and in pain and wanted to leave.

Corporal Clayton had to ask a lot of questions and go through things a number of times with Cathy to get more details of what she said had occurred. Cathy tended not to give her full details and Corporal Clayton would have trouble keeping her on topic. [ 58 ] On cross-examination, Corporal Clayton said she felt when she was done, she had a good picture of what had occurred and felt that Cathy had understood what she had asked her. She agreed at times in the process Cathy was not always alert and focussed and that she would have to bring her around to a topic.

She did not recall Cathy was bleeding anywhere when she first came into the detachment. [ 59 ] Constable Wilson testified he met Cathy on March 5th at 2:35 p.m. when she had come to the detachment and had asked to speak to a police officer. He conducted an interview of her between 2:36 and 3:12 p.m. A 20-page statement was later transcribed. He knew she had been involved in a previous incident but knew nothing about her.

He did not feel he had any difficulty communicating with her, but said she was at times erratic and moved about at times between topics but overall spoke of a specific moment and was he felt easy to understand. [ 60 ] During this second interview she seemed scared and apprehensive. She indicated her main reason for attending was that she did not feel that the police believed her. She brought a bag of cleaning type rags to the detachment and left it.

Constable Wilson did not open it; he did not provide any admissible evidence as to why she had done so. [ 61 ] Constable Rast testified he interviewed Cathy McIntyre on March 5th when he learned from Constable Wilson that she was in the detachment and wanted to speak to a police officer. He reviewed the police photos and said generally they depicted how she appeared on March 5th. He asked her to draw a picture of the knife in his police notebook. Cathy did so and the same was later entered at trial as Exhibit 2. When he first met her she was quite upset and went off on tangents when she was describing events.

Their interview lasted one hour from 3:40 to 4:40 p.m. on March 5th. [ 62 ] Earl Roper, Jr. testified for the defence. He is the accused's brother and the son of Earl, Sr. now deceased. He said he was sometimes called Earl, Jr. He had known the complainant since 2003 quite well, and said she used to come to their home on Neves Road in Pitt Meadows quite often, sometimes daily, to help him do whatever he wanted, for example, get groceries. He said he used to sell her "weed". He lived with his dad from 2003 to 2007 and then moved up north. His dad, Earl, Sr., stayed in the home on Neves Road.

Occasionally, his brother James would come over and sometimes she would smoke a joint with James, himself and his dad. He knew Cathy had once stayed with his dad or at his place and slept on the couch for a month.

[ 63 ] His dad died February 14th or 15th, 2010 -- he could not recall the exact date -- but said he came down for the funeral about one week later. This would put the date of his attendance at the funeral at February 21st or 22nd. The accused did not attend the funeral; he did and Cathy did. Mitch stayed with James at his place when his dad got ill. He last saw Cathy he felt one week after the funeral the day he received his late father's ashes at his late father's home. This would have been about February 28th or March 1st by my calculations.

He knew his dad's Mustang and did not believe Cathy had anything to do with it. [ 64 ] Mitch Einarson was called by the defence. He was age 20 when he testified at trial on December 16th, 2010. He said he was then employed at a mining company called Inspectorate or something like that. He could not really pronounce the name of his employer. He could not, when invited to spell the name of his current employer, do so; he did not even try.

He had worked for them he said for about a month in Richmond and as a labourer and ran what he called a pilot plant separating metals from dirt. [ 65 ] He confirmed that he had earlier in the trial (although excluded as a witness who had not yet testified) entered the courtroom and identified Cathy McIntyre. He said he did not know her last name. She was somebody he did not really know from before. He said he had seen her before save only at Mr. Roper's dad's place on Neves Road where he met her.

He had first seen her a few weeks after Earl, Sr.'s passing and then he said on the next day or something after he died. He knew it was in February he had met her. When asked what he meant by a few weeks, he could not really say.

Eventually, he seemed to settle on Cathy just showing up at James's place on 287th Street in Maple Ridge around two weeks after Earl, Sr.'s funeral. [ 66 ] This evidence is contrary to his direct evidence given minutes earlier that he first met Cathy at Earl, Sr.'s place on Neves Road, not on 287th Street and had not seen her any time before that. [ 67 ] He was of course referring to the complainant Cathy McIntyre when he testified he had met Cathy when Earl, Sr. was living. He knew he had died around February 13th, 2010 but had not attended his funeral. He said he first met Cathy in February 2010.

He had moved in with James, the accused, in December 2009 at a place on the outskirts of Maple Ridge on 287th Street or Avenue. Only he and James lived there. He had known James since he was about seven. He considered he was a family friend of James's. He said he was not present in court because James had told him to be there and say what he had said.

When living with the accused, he saw him and talked to him daily save for the week in which he was arrested when he was at his mother's or something. [ 68 ] On the day he saw Cathy, and counsel seemed to be referring to the day he first met her -- his question was unclear -- he said he was doing nothing really, just talking and watching TV. There was this day an old Mustang on the property. He seemed to be referring to Earl, Sr.'s property -- again the question was unclear. He recalled unbolting and taking only the front seats of the car out so Cathy could clean where they were. Cathy was cleaning at the time.

She did this for two days. He had no help in removing the seats. This task was done a week after the funeral, according to his recollection. James was around but inside all day. He was not asked what day he was talking about. He could not recall on which of the two days Cathy worked on the Mustang from which he had removed the seats. He did not notice anyone else take the back bench seat out which just pulled out. [ 69 ] He recalled seeing Cathy inside the house. He was asked by defence counsel to tell the court everything about Cathy inside the house. All he really knew was that she was there to clean up.

He was inside the house, usually in his room. When asked what he was doing at the time in his room, he said usually playing video games. I took this answer to be testimony as to what he usually did in his room, not an answer as to what he recalled doing on the day under discussion, whenever it was, but apparently the day he first met Cathy at Earl, Sr.'s home after his passing and funeral. [ 70 ] He did not remember Cathy coming into his room. When asked, "Did she come into your room?" he testified, "Not that I recall, no".

He was asked if he remembered if there was any kind of fight between James and Cathy inside the house and said, "No". I then asked, "You don't remember whether there was one or you're telling me there wasn't one, which is it?" He answered "There wasn't one. All I heard -- all I know is that she was told to leave": The Court: Q So you -- you say there was no fight inside the home between Cathy and James. A Yeah, there was no fight. The Court: Q All you recall is she was told to leave? A Yeah. [ 71 ] This witness testified that James had asked Cathy to leave but said he had not seen this.

When asked how he knew this, he said she just left and in essence that James had told him this. Defence counsel admitted this answer was hearsay evidence. [ 72 ] This witness was asked if he had ever seen James and Cathy in any kind of physical struggle and he said, no, that he had not. He did not happen to see any large knives around the house that day. [ 73 ] He was shown Exhibit 2, a rough diagram the complainant drew of the knife she said the accused used during his attack of her. He said he had not seen any knife like that around.

I note he was not asked if to his knowledge the accused owned a knife similar to that shown in Exhibit 2, nor was he asked if he had ever seen the accused either use or possess such a knife. [ 74 ] In cross-examination he was unable to spell his stepfather's surname, notwithstanding he had been his stepfather for some ten years at the time. He agreed one of his stepfather's best friends was Mr. James Roper, the accused. He agreed the accused was like a father figure to him. He had a nickname for him and called Mr.

Roper "Duck". [ 75 ] He had done a bit of work here and there for the accused -- housework -- and was paid for it. He lived with his mother on 222nd

Street before moving in with Mr. Roper in December 2009 because he wanted more space than he had in her apartment. He did not pay rent to Mr. Roper nor pay any bills, but did buy some food. When he moved in, the arrangement was he would help Mr. Roper around the house. He was not employed in March 2010 or in December 2009. He was unemployed between December 2009 and approximately mid-November 2010, close to a year. His biological dad gave him money but the accused had not.

This is contrary to the witness's own evidence that he did some paid work for the accused here and there. [ 76 ] On December 16th, 2010, this witness was living with his mother and had been doing so since Mr. Roper went to jail but said as to the date Mr. Roper went to jail, "I don't got a clue on that one". He did not want to move home. It was a big deal for him. He could not recall when he moved in with his mother after Mr. Roper's arrest. [ 77 ] Finally, in cross-examination he suggested he had gone to live with his mother after Mr.

Roper's arrest about three months after Cathy had been at Earl's home cleaning the Mustang. [ 78 ] He agreed Ms. McIntyre was at the property where he lived before he moved back home. Mr. Blunt for the Crown then asked: Q If you are telling us you can remember further back before then and you can tell us that you recall Ms. McIntyre being there, how do you know when she was there? How do you know when she was there but you don't remember when you moved back in with mom? A I'm going to have to say -- The Court: Keep your voice up, please. A -- 'cause I smoke pot. Mr. Blunt: Q You smoke pot? A Yes. [ 79 ] Mr.

Einarson then said because he smoked pot every day after work (and also agreed he did daily before starting work) he attributed some of his memory loss to his smoking pot. He said he smoked pot daily after work because that was the only time he could do it. He also said his daily use had been ongoing for a few years but stopped about a month ago because he couldn't get any. This is contrary to his evidence given earlier that he had been working for a month prior to trial and daily smoked pot after work.

He denied he smoked pot when Cathy was present at the house. [ 80 ] I also note that March 3rd, 2010 seen at the trial date of December 16th, 2010 would appear to be within the few years he had admitted to smoking pot daily when not working. [ 81 ] He said he was too busy when Cathy was at the house to smoke pot but agreed he was then mainly playing video games but said he was also doing other housework. He then said there were gaps in the few years when he did not smoke pot as he could not get hold of it. The gap or gaps were usually for months at a time starting apparently around the end of January 2009.

This lasted for about a month. There is also a gap in November 2010 for about one-and-a-half months when he could not obtain pot either. He said he did not then smoke pot during either gap. Then shortly he said in January 2009 he smoked it here and there, not often, about once a week, contrary to his evidence given minutes earlier at trial. [ 82 ] By March 2010 he was doing so again on a daily basis according to his testimony.

This witness said that two days before he testified at trial he had recommenced smoking pot and had done so on both days. [ 83 ] Crown counsel questioned this witness as to how his use of marijuana affected his memory as follows: Q But you cannot recall when you moved out of the Roper residence? A No. Q But it was at a time after Cathy was there. A Yes. Q Obviously and you attribute your inability to recall when you moved out to smoking pot. A Yes. Q And so is it fair to say when you smoke pot you cannot remember important things? A Yes.

Q Your memory should not be trusted when you are smoking pot, would you agree? A Yes. [ 84 ] As well, in cross-examination this witness admitted on a date he could not recall months ago that the accused had told him, "You're going to have to be a witness for me" with respect to charges he described as assault and attempted rape. He said he agreed to do

so if he had to but did not ask the accused any questions about his charges. He did not ask the accused why he needed to be a witness nordid the accused tell him who the alleged victim was and said he did not ask this question of the accused. Nor did he ask the accusedwhere or when the assault and attempted rape had occurred. He admitted that the accused had told him why he needed to be a witnessbecause he was the only one at the house with him at the time the incident supposedly occurred. The accused gave him no other reason. POSITION OF THE PARTIESThe Crown [85] Mr.

Blunt has provided a helpful 15-page typewritten submission which was augmented somewhat with oral closing submissionson the last day of the trial before me. I have carefully reviewed all these submissions. [86] The essence of Crown's position in this case is that I should accept the evidence of Ms. McIntyre which in some importantrespects is corroborated by the sworn testimony of other witnesses, for example, Ms.

Johnson and Mitch Einarson, not to mention thestate of her physical injuries, and convict the accused of the offences with which he has been charged. [87] I will refer in more detail to Crown's various submissions below. [88] I turn now to Mr. Ritzker's helpful submissions on behalf of the accused. The Defence [89] Mr. Ritzker invites me to reject all the evidence of the complainant who he asserts was not a credible witness and who appearedto him at least to be making things up "on the fly". Her evidence contradicted not only that given by others but was internallyinconsistent or contradictory.

He said one example was her testimony at times that the transcripts of her three police interviewscontained mistaken information. She pointed to Mr. Einarson being present in his bedroom during the latter stages of the alleged assaultwhereas he said there was no such event that occurred. This of course suggests I should prefer his evidence on point to hers, and Mr.Ritzker so argued. [90] He argued that the complainant was evasive and combative when she testified. She had a predilection to veer off on tangents.

She is the type of witness whose evidence if it is to be believed, must be corroborated. [91] When the Court asked what of the photos of her injuries did they serve to corroborate her evidence, Mr. Ritzker said in hissubmission they were suspect, for example, a black eye did not arise in three hours. The photos showed as to this alleged injury (said tohave occurred during the assault) an injury that he felt might have occurred two to three days earlier. As well, the police could notcorroborate what she said her injuries were.

Her evidence of injuries was as a result of her conjuring up events as a victim. [92] As to Mitch Einarson, if I found him not to be credible, then there was Earl, Jr.'s evidence which was contradictory to Ms.McIntyre's as to his whereabouts on March 3rd. He said he did not return on March 3rd and last saw her one week after the funeralwhich counsel suggests was February 14th or 15th plus seven days or on or about February 21st or 22nd. I have dealt with this pointabove. [93] Mr.

Ritzker also argued that the core of Crown's case or the complainant's story was not put to Mitch Einarson in cross-examination. [94] He argued, based on the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), that Crown had not cross-examined Mitch Einarson on what he called the physical dimensions of the assault as testified to by the complainant. For example, hewas never asked about what he saw or did not see in his room on the day of the alleged assault.

He should have been. [95] He seemed to also suggest that Mitch should also have been cross-examined on if, as a result of contact with the accused or hiskin, he had been put up to fabricating evidence before the Court.

It would be important to my truth-seeking function to both see and hearMitch's answers to these questions. [96] He seemed to acknowledge that because Mitch was a defence witness, not a Crown witness being cross-examined by defencecounsel, that the case at bar was not a classic example of an application of the so-called rule often discussed under such headings as"Duty to Cross-examine" for example (see McWilliams: Canadian Criminal Evidence). This rule is explained by our Court of Appeal inthe case of R. v. Carter, 2005 BCCA 381 where Mr. Justice Thackray for the Court said this in

part in paras. 54 to 57: [54] The Crown, on this appeal, relies upon the "rule" in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) which itsays is properly stated in R. v.

Henderson (1999), (ON CA), 134 C.C.C. (3d) 131, 120 O.A.C. 99 [cited to C.C.C.] atpara. 18, as: [I]f counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance toaddress the contradictory evidence in cross-examination while he or she is in the witness-box. [55] The "rule" is categorized by Crown counsel on this appeal as one of common sense and that a breach of it transgresses the rule offairness. The Crown relies upon the words of Southin J.A. (in separate reasons concurring in the result) in R. v.

O.G.K., (1994), (BC CA), 40 B.C.A.C. 54, 28 C.R. (4th) 129 [cited to B.C.A.C] who, after setting out relevant portions of the reasons inBrowne v. Dunn, said this at paragraph 20: What underlies these expressions of a duty to cross-examine and the effect of a failure to cross-examine is the fundamental propositionthat a court of law must treat all persons who come before it in whatever capacity fairly.

It is not fair to a witness to adduce evidencewhich casts doubt upon his veracity when he has not been given an opportunity to deal with that evidence. [56] However, application of the principle must be tailored to the circumstances of each case. There is no absolute. An articulation of

the flexibility with which the "rule" must be applied was given by Doherty J.A., for the Court, in R. v. Paris, supra: [I will omit thelengthy quotation]. [57] I have emphasized passages that note that it is the failure to cross-examine on central features or significant matters that bringsthe requirement for cross-examination into play. This must be distinguished from a failure to put details of incidents to a witness. [97] Ultimately, Mr. Ritzker said I should accept Mr. Einarson as a credible witness, especially in light of the fact that the Crown hadfailed to cross-examine him on the details of the assault.

Crown's failure to do so cannot affect his credibility and I understood Mr.Ritzker to mean in a negative way. Really, the sense of his submission was that I must almost give more weight to his evidence due toCrown's failure. Mr. Ritzker alsorelied on R. v. Khuc, [2000] B.C.J. No. 50, a decision of our Court of Appeal, drawn to his attention bythe Court prior to his submissions. [98] In his closing submission on point, he submitted that in R. v. Khuc, supra, the essence of the Court's decision given by ChiefJustice McEachern was set out in para. 44 as follows: [44] Crown counsel's point is well taken.

There can be no doubt that the general rule is that counsel must confront a witness with anynew material he or she intends to adduce or rely on after the witness has left the box. However, the rule does not go so far as to requirecounsel to ask contradicting questions about straightforward matters of fact on which the witness has already given evidence that he orshe is very unlikely to change. Judges tell juries that they may accept or disbelieve all or any part of the evidence of a witness. Thatinstruction does not depend upon opposing counsel asking unnecessary questions.

With respect, I believe the law is correctly stated inthe case of R. v. Mete, (BC CA), [1973] 3 W.W.R. 709 (B.C.C.A.), particularly at 713. I do not believe the rule isany different if the evidence on which there is no cross-examination directly contradicts the evidence of the Crown or merely supports afact inconsistent with the Crown's theory of the case.

Counsel who does not cross-examine takes the chance that the evidence will beaccepted; but rather than embark upon a futile cross-examination, counsel is entitled, as Crown counsel did in this case, to rely on thejudgment of the jury as to what evidence it will accept. [99] In essence, this case states as with the accused Tran therein, where a witness is unlikely to change his or her story, Crown neednot conduct a futile cross-examination nor need Crown do so with a straightforward matter. [100] Mr. Ritzker says in the case at bar, the issue as to how the assault occurred is not a straightforward matter.

It lies at the heart ofthe case. [101] He submitted Cathy's story about Mitch sitting on the bed playing video games was absurd. He said the complainantcontradicted herself on a key part of the story concerning the knife. The knife she said in her direct evidence fell out of his hand or shewished it out or away and it fell she knew not how, whereas in cross-examination evidence was led suggesting she had told ConstableRast on March 5th that she kicked it out of his hand.

I have set this evidence out above at p. 49, lines 1406-24 of the transcript. [102] There were inconsistencies in the knife incident and if she is wrong about what occurred to the knife, Mr. Ritzker said she wascompletely wrong. The two versions of evidence are distinctly different and irreconcilable. She also refused to admit to thecontradiction stating in cross-examination that the transcript was wrong, that was not what she had said to the police.

If she is wrongabout the knife and where it went, she is therefore just wrong about the whole event. [103] He also said she contradicted herself about the car seats and the Mustang. In direct, she said James removed same but in theMarch 5th interview with Constable Rast said Mitch had assisted. This is hardly a material or meaningful issue even if there is aninconsistency in her testimony on point compared to the content of her police statements on point. [104] As I have already indicated above, certain of Mr. Ritzker's submissions as to the credibility of Ms.

McIntyre were centrallypremised on my acceptance as accurate and reliable other evidence in the case, often that offered by defence witnesses. [105] A further example is his submission that Ms. McIntyre had been untruthful as to when she first met James which she said wasclose to February 2010 whereas Earl, Jr. had testified that they, and his brother James, knew Cathy and interacted with her in and prior tothe year 2004. He said he had known her since 2003 and then used to sell her weed or marihuana.

His refusal to acknowledge the lengthof her relationship with James as per his brother Earl, Jr.'s evidence is said to be a bewildering contradiction. [106] Mr. Ritzker argued the Court ought not to be concerned that Christina Johnson is a biased witness. He said I should not adoptthis view. Her actions with respect to Ms. McIntyre cannot be characterized as malicious. Ms. Johnson's conclusion as to Ms. McIntyre'sdishonesty was reached long ago before two troublesome events occurred which Ms.

Johnson testified to: 1. the trunk incident; and 2. the report to the Ministry that Christina was drugging her children. [107] I note he did not ask her when she formed the opinion that Ms. McIntyre was not a truthful person. [108] I have not dealt with each and every submission Mr. Ritzker made on behalf of Mr. Roper in his lengthy closing submissions asthey took place over parts of several days, however, I have considered all of them notwithstanding I have not made express reference inthese reasons to all of them. FACTS NOT IN DISPUTE [109] There are many facts not in dispute in this case.

I intend to deal with them now before dealing with the important issue ofcredibility. [110] I find the Crown has proven these facts beyond a reasonable doubt:

1. The complainant, Cathy McIntyre, aged 51 at trial, was a single mother and homeless on March 3rd, 2010 in the sense that she had no residence of her own in which she lived. 2. Ms. McIntyre was not, on March 3rd, 2010, taking any drugs for any diagnosed mental health condition. Her evidence on point went unchallenged. I would also note that there is no evidence that she was on or before March 3rd, 2010 diagnosed with any recognized medical health condition or illness including one that affected her ability to differentiate between real and imaginary events. 3.

From time to time prior to March 3rd and on March 4th, 2010 Ms. McIntyre slept in her car where she felt safe. Such were her economic circumstances. 4. On March 3rd, she received a form of disability income of approximately $900.00 per month from the government, likely our provincial government. I note there is no evidence as to the reason for or nature of her disability. 5. Ms. McIntyre on March 3rd stood between 5 feet, one inch and two inches all, and weighed approximately 95 pounds. At trial she looked diminutive and very thin. 6. Ms.

McIntyre prior to 2010 did odd jobs to earn some income including cleaning at his home on 287th Street in Maple Ridge for Earl, Sr. whom she knew when he was alive. 7. Ms. McIntyre on and before March 3rd, 2010 owned or had the use of her own car. 8. Ms. McIntyre attended Earl, Sr.'s funeral in or about mid-February 2010 and the celebration or wake thereafter. Earl, Jr. attended the funeral, however, his brother James the accused did not. 9. At or about the date of Earl, Sr.'s death Ms.

McIntyre was asked to clean a mouldy Mustang motor vehicle owned by Earl, Sr. located at Earl, Sr.'s home on 287th Street in Maple Ridge by Earl, Sr. initially and as well likely later by Earl, Jr. and James Roper. 10. The Ropers agreed to pay her $200.00 for her cleaning work on the car on March 2nd and 3rd, 2010. Ms. McIntyre owed one Steve the sum of $200.00. 11. On March 3rd and for several months beforehand, Ms. McIntyre lived with Christina Johnson, her husband Paul, and two children at her family residence in Maple Ridge and paid rent. 12. On the morning of March 3rd, 2010, Ms. McIntyre drove Ms.

Johnson and her two children to their daycare and returned Ms. Johnson home by 9:30 a.m. and then left. 13. Ms. McIntyre told Ms. Johnson before she left at 9:30 a.m. that she was going to clean a friend's home. 14. Earl, Sr.'s residence is located about a 15-minute drive away from the Johnsons' home in Maple Ridge. 15. When Ms. McIntyre left the Johnson home at 9:30 a.m. on March 3rd, she was uninjured. She had not then sustained any of the cuts, abrasions or injuries shown in the police photos marked as Exhibit 1. 16. Cathy went to Earl, Sr.'s home on the morning of March 3rd and there met one Mitch Einarson.

James Roper was then at this residence. 17. Cathy worked cleaning the vehicle on March 3rd, 2010 and she cleaned it for two days. 18. Ms. McIntyre returned to the Johnson home in Maple Ridge about four hours later in mid-afternoon on March 3rd about 2:00 p.m. badly bruised and her clothes were covered in blood and with a black eye. Her hair was in knots. She was very shaken. The photos in Exhibit 1 accurately depict how she looked on her return to the Johnson home at this time. 19. Ms. Johnson went with Ms. McIntyre in the ambulance to the Maple Ridge Hospital that day. 20.

A family friend of the Johnsons, one Steve, arrived on his motorcycle from Kamloops to the Johnson home in the evening of March 3rd, 2010. 21. Ms. McIntyre had borrowed $200.00 from him prior to March 3rd, 2010 and had told him and Ms. Johnson she would repay him on March 3rd. 22. Ms. McIntyre gave the police four plastic gift cards resembling credit cards on the evening of March 3rd, 2010 when she attended at the Ridge Meadows RCMP detachment. These are, as I have said, shown in Exhibit 1, Tab 1, I believe photo 15. Each was in the amount of $100.00 in the sense that this number was printed on its face. 23. Ms.

McIntyre was inside Earl, Sr.'s home on March 3rd, 2010. [ 111 ] I turn now to the important issue of credibility in this case. CREDIBILITY [ 112 ] Credibility is a central issue in this case. The way in which the credibility of any witness can be assessed by the trial judge considering various factors is conveniently set out in the case of R. v. Leclair , [2000] B.C.J. No. 2767 a judgment of Ann Rounthwaite P.C.J. at para. 7 in

part is as follows: [7] In order to determine what facts have been proven by the evidence in this trial I must assess the credibility of the witnesses who

testified. In assessing credibility, courts have recognized a number of factors as helpful. These include:

a) The witness' ability to observe the events, record them in memory, recall and describe them accurately.

b) The external consistency of the evidence. Is the testimony consistent with other, independent evidence which is accepted?

c) Its internal consistency. Does the witness' evidence change during direct examination and cross-examination?

d) The existence of prior inconsistent statements or previous occasions on which the witness has been untruthful.

e) The "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"?

f) Motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused personto avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessingan accused's testimony.

g) The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [113] In addition on this point, there is the helpful statement of principle in R. v.

Sue, 2011 BCCA 91 and the dissenting judgment ofLowry J.A. of our Court of Appeal at para. 33 as follows: [33] While the terms "evidence" and "testimony" are sometimes used interchangeably in referring to what has been said in the witnessbox, evidence is derived from the testimony of a witness as it is from an affidavit to which an affiant may depose. It is the content. Iwould then say there is more to testimony than content; there is the manner in which the testimony is given, or the demeanour withwhich the witness testifies.

But, that said, it is in my view the way credibility is to be assessed that is important. I find the followingstatement in R. v. Lawrence, 2010 NBQB 135, 358 N.B.R. (2d) 159, to be the most current

summary of the instruction for trial judges tobe taken from the authorities in this regard: 18 Like most criminal cases, an important if not central component of the outcome is an assessment of witness credibility. In tworecent decisions (R. v. Matchett, 2010 NBQB 80; R. v. Storey, 2010 NBQB 86) Justice Fred Ferguson provided an extensive and helpfulanalysis of the principles to be applied when assessing credibility. After reviewing these principles, Justice Ferguson summarizes thetrial judge's responsibility at paragraph 78 of R. v.

Storey (supra): No longer are judges encouraged to consider demeanour evidence to be a determining or even central tool in credibility assessment. R. v.R.G.L., (ON CA), [2004] O.J. No. 1944 (O.C.A.); R. v. F.(S.), (2007), 2007 PESCAD 17 , 223 C.C.C. (3d)1 (P.E.I.S.C.A.D.) and also R. v. T.E., 2007 ONCA 891 , [2007] O.J. No. 4952 (Ont. C.A.).

Rather, the proper approach is toconsider the evidence of a particular witness against the backdrop of the rest of the evidence led or other evidence tendered, searchingfor connectors that may not necessarily rise to the level of legal corroboration between witnesses, the other evidence tendered or acombination of the two in deciding what worth should be attributed to it.

In the final analysis it becomes a matter of determining theveracity of the evidence utilizing the age old tools of logic, reason and common sense in measuring the probability, if it is deductiblefrom the evidence, that the witness or witnesses' honesty on the central issue or issues is assailable. [114] In para. 34, Lowry J.A. refers to our Court of Appeal decision in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R.354 at 356-357 on point followed with approval by the same Court in R. v.

Jeng, 2004 BCCA 464 at paras. 52 to 54 reproduced in partat p. 7 of Crown's written submission as follows: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The tester must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise thetestimony of quick-minded, experienced, and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to betelling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of adangerous kind. [Faryna v.

Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.)]. [115] This was a civil case with a far different onus of proof on the claimant but the above principle is nonetheless often cited in ourcriminal courts with respect to assessing credibility. [116] I will assess the credibility of the witnesses who testified using these above legal principles. I intend to deal with the credibilityof all important witnesses leaving the complainant to the last.

No submission was made by either counsel that I should disbelieve orquestion the truthfulness or reliability of any of the four police officers who testified before me. I do not. I accept them as reliablewitnesses. [117] I turn to Christina Johnson. Christina Johnson [118] I accept as accurate her evidence as to what occurred on March 3rd, 2010. Many of the facts she testified to I have set out above

in the

summary of those facts that are not in dispute. As to these facts she was not challenged in cross-examination by defence counsel. [ 119 ] Nonetheless, I am alive to the fact that there is a clear basis for potential bias and prejudice against the complainant in her testimony. I am concerned about her generalized statements that Ms.

McIntyre had what she characterized as mental health issues and that she was a person who lied about the dumbest things, made things up and was not all there, and that her reputation for truth in the community was not very good nor was her reputation for being accurate in what she said; that she was an habitual liar. [ 120 ] In support of these generalizations, she really gave only two concrete examples: 1. the trunk incident; and 2. calls to the Ministry concerning her children, with only one call really particularized relating to a concern she was drugging her son on Tylenol medication. [ 121 ] Ms.

Johnson denied in cross-examination that by telling me Cathy was an habitual liar, she was seeking revenge or payback against her as a result of for example these events. Nonetheless, Ms. McIntyre's erroneous understanding and reaction to her husband's joke -- the trunk incident -- was sufficiently troublesome to Ms. Johnson that she asked Ms. McIntyre to leave her home within one-and- a-half weeks of the event in question. Their relationship once I think characterized by Ms. Johnson as being supportive of Cathy ended finally and abruptly. They no longer speak in my understanding. [ 122 ] It is clear that Ms.

McIntyre and her calls to the Ministry again because she misconstrued a real life event at least on one occasion, were so serious and problematic for Ms. Johnson that she said in evidence she had to "fight for her kids and being able to keep them at home." No other examples of untruths on the part of the complainant were given in evidence by Ms. Johnson. [ 123 ] On reflection, I give Ms. Johnson's above evidence relating to Ms. McIntyre's mental health and reputation for truth in the community very little weight. My reasons for doing so are as follows: 1.

I find there is a real potential or prospect that her evidence on point is biased and that by reason of their past history, she is biased against Ms. McIntyre. 2. There is very little basis by way of specific acts or occasions said to be situations when Ms. McIntyre lied. This is not according to the authorities on character evidence a strict requirement but such evidence can certainly be led and I think can aid a trial judge in weighing such evidence. 3. The two concrete examples given are really on analysis real events which occurred, which Ms.

McIntyre likely with some paranoia operating, for example, as to the trunk event really misconstrued. As Crown covered in his re-examination of this witness, they were real events, not imaginary events which Ms. McIntyre created. I think it inappropriate to suggest that a person who misconstrues something about a real event which occurred, for example drugging her child, is by definition a liar. 4. I bear in mind that Ms. Johnson allowed Ms. McIntyre to live with her in her home for some three months.

Had she been as dishonest as she asserts she was at trial, I doubt this level of support would have been offered by her to Ms. McIntyre for as long as it was. When it was, I am concerned that Ms. Johnson has after her falling out with Ms. McIntyre exaggerated the degree of her negative reputation in the community. 5. I will not repeat Ms. Johnson's evidence given on re-examination which I have referred to above. This significantly qualifies and puts in context her evidence with respect to the complainant's reputation in the community such as it was as given by Ms. Johnson. 6.

I have reviewed the discussion of character evidence in the McWilliams text referred to above. This well-known text makes it clear that evidence given about a witness's reputation in the community does not take into account the obvious fact that where a witness gives evidence in court at trial, he or she does so under oath, a very different circumstance than unsworn talk in the community. The consequence of untruthfulness in the two circumstances and the two forums is very different.

As well, McWilliams says this as to character evidence at p. 9-12 of the text: Finally, subjective assessments of character are shaped by our own system of values and life experiences and may be affected by bias relating to age, class, race, gender and sexual orientation. Indeed, character on any definition is not a static concept that is readily quantified with scientific certainty though the law of evidence does not insist upon such a standard for admissibility.

As a result, given the vicissitudes and limited predictive ability of character, either as a barometer of credibility or as proof of conduct, it remains very much an uncertain evidential tool. Psychological research tends to confirm this view. [emphasis added] [ 124 ] I turn now to the evidence of Earl Roper, Jr. Earl Roper, Jr. [ 125 ] I bear in mind that he is the accused's brother. He is hardly an independent witness.

He has a clear motive to lie or mislead the Court, namely, to help exonerate his brother, the accused before the Court. [ 126 ] His evidence as to when he last saw Cathy McIntyre is not really inconsistent with that given by Mr. Einarson and Cathy McIntyre who both said that she was at Earl, Sr.'s residence on March 3rd and that she was cleaning the Mustang. Earl, Jr. said he did not see Cathy have anything to do with his dad's Mustang, and that this was not on March 2nd or 3rd when clearly she did. [ 127 ] For the above reasons, I give his evidence in this case very little weight.

The alleged failure of Crown to cross-examine Mr. Einarson on the specifics of the alleged assault described by Ms. McIntyre.

[ 128 ] Before dealing with Mr. Einarson's credibility, I wish to deal with Mr. Ritzker's above submission based on the rule in Browne v. Dunn , supra, which I have referred to above. [ 129 ] Crown's submission on point is set out in paras. 1 to 4 of Mr. Blunt's written submission which I now refer to: 1. In the Crown's submission, the rule in Browne v. Dunn , supra , generally applies when counsel intends to challenge the evidence of a witness by later calling contradictory evidence from another witness. The rule appears premised on principles of trial fairness.

Specifically, a witness ought to be provided an opportunity to comment on the contradictory evidence before any submissions can be made regarding his or her credibility. 2. Therefore, where a party intends on calling further evidence in a trial that will contradict the evidence of a witness who is now testifying, the general rule is that the witness should be confronted with that new evidence. However, in the Crown's submission, a witness's evidence may be rejected in its entirety even though particular points of their evidence were not subjected to cross- examination.

Counsel are entitled to rely on the judgment of the trier of fact in terms of what evidence will be accepted and the trier of fact is entitled to accept all, part, or none of a witness's evidence. 3. Mitchell Einarson testified as a defence witness after the complainant testified. The Crown was never in a position to call contradictory evidence challenging Einarson's testimony after this witness testified in contrast to the traditional application of the rule from Browne v Dunn , supra . 4. Based on an overall assessment of Einarson's reliability and credibility, it is open to the Court to reject his evidence.

The Crown is entitled to rely on the judgment of the Court as to what evidence it will accept even if a particular piece of evidence has not been subjected to cross-examination. In support, Mr. Blunt refers to two of the cases which I have mentioned above, namely, R. v. Mete , supra , and R. v. Khuc , supra , and in addition the decision of R. v. Ali , [2009] B.C.J. No. 2107 , a judgment of our Court of Appeal. I agree with Mr. Blunt's statement of the relevant principles. I also am of the view as occurred in R. v. Khuc at paras. 43 and 44 that had Crown cross-examined Mr.

Einarson on the specifics of the alleged assault as described by Ms. McIntyre that it would be very unlikely that he would have changed his evidence. As well, he was a defence witness, not a Crown witness. While there is no evidence to suggest Mr. Einarson was aware of Ms. McIntyre's story given by her in court, his counsel Mr. Ritzker certainly was. He covered in his direct examination of Mr. Einarson the basic points relating to the complainant's version of the alleged assault, namely, that it was in the house and involved James and Ms. McIntyre. He as well in a general way dealt with the knife.

In my view, this defence witness had an opportunity to respond in this fashion to the complainant's story. He was treated fairly by Crown in my view. There is no basis for me to give his evidence for example more weight because it was not so tested by Crown and likewise in my view no reason to give Ms. McIntyre's evidence less weight for the above reasons. [ 130 ] In Mr. Blunt's written submission he suggests that the rule in Browne v. Dunn , supra , may have application with respect to defence counsel's failure to cross-examine Christina Johnson on her evidence to the effect that when Ms.

McIntyre returned to her home on March 3rd in mid-afternoon, that her injuries she observed were accurately depicted in the police photos, Exhibit1, Tab 1, numbers 1 to 3. Mr. Blunt says Ms. Johnson was not cross-examined on her said observations. Mr. Ritzker then suggests or argues based on these photos that Ms. McIntyre's bruises and black eye were two to three days old, a proposition not put to Ms. McIntyre. [ 131 ] Having regard to the view I take of this defence submission, I need not deal with the applicability of the rule in Browne v.

Dunn , supra , in this situation beyond saying I think it is unlikely that it is engaged at all. [ 132 ] I accept as truthful Ms. Johnson's evidence that at 9:30 a.m. on March 3rd, Ms. McIntyre was uninjured and in essence without facial marks or damage. I agree with Crown's submission that I have no expert medical evidence that would allow me to find or even consider whether or not the facial injuries shown in the above photos might have occurred earlier than on March 3rd. I will not speculate on this point nor will I accept Mr. Ritzker's submission on point as any form of admissible proof.

Without hesitation, I reject his argument. [ 133 ] Ms. Johnson's evidence on the point, namely, the state of Ms. McIntyre on March 3rd stands in my view unchallenged and uncontradicted and leads to one only commonsensical conclusion, namely that Ms. McIntyre's injuries shown in Exhibit 1, Tab 1, photos 1 to 3 occurred between 9:30 a.m. and mid-afternoon on March 3rd, 2010. I find that Crown has proven this fact beyond a reasonable doubt. [ 134 ] I turn to the credibility of Mitch Einarson. Mitch Einarson [ 135 ] He is not apparently a very bright individual and I take this into account in assessing his evidence.

For example, he could not spell his stepfather's surname or recall the name of his employer. He is hardly an independent witness. He admitted he looked at the accused as a father figure. The accused was his stepfather's best friend. On December 16th, 2010, the day he testified, he was staying with his stepfather. He had lived rent-free with the accused for some months. [ 136 ] His evidence was full of inconsistencies, albeit many minor. I have outlined that in his evidence he would say one thing and then shortly give a different version.

He seemed to suggest the complainant was at Earl, Sr.'s home cleaning the car one week after the funeral when the date was in fact on March 2nd and 3rd, 2010. [ 137 ] He regularly and daily smoked pot including at the time of the alleged assault and in the two days prior to his trial testimony. He admitted this affected his memory and made it not trustworthy. It is also of course illegal.

This activity had been ongoing almost daily for months if not years prior to March 3rd, 2010. [ 138 ] His evidence as to not discussing the accused's charges with him simply does not make sense or have an air of reality to it in my view. I do not believe it.

[ 139 ] If I were to accept his evidence in court in the result it would seem he came to court with no clear understanding as to why. [ 140 ] This witness when living with the accused was clearly for most of the time dependent on the accused for financial support. Most of the time he was unemployed. He got money from his biological father and seems regularly to have spent some at least of these funds on purchasing marihuana. He did not pay rent.

He said he was to do odd jobs in essence in lieu of rent but also said on the days Cathy was at Earl, Sr.'s home he usually watched TV all day; not the hallmark of a tenant doing odd jobs in lieu of rent. There is also really no reason for Mr. Einarson to have remembered the events of March 3rd, 2010 in my view. [ 141 ] This witness was one of the most unreliable witnesses I have ever seen or heard as a trial judge sitting in this Court. Based on all the evidence in this case, it is clear Mr. Einarson was not an independent witness and clearly had a motive to lie to protect the accused father figure in his life.

I do not find that Mr. Einarson is either a credible or reliable witness. Where his evidence differs from that of Ms. McIntyre, I prefer hers. [ 142 ] I turn now to the credibility of the complainant, Ms. McIntyre. Cathy McIntyre [ 143 ] When she was first called by Crown to testify and entered the witness box, as I have said, I noted immediately in terms of her demeanour that she was very diminutive, about 5 feet tall, and looked thin and afraid. As many complainants are routinely required to do, she testified in the witness box looking initially directly at her alleged attacker, the accused.

I think this may have been a factor in the way she presented in court. Once I recall she said she did not want to be there in court. She said several times in her evidence that in essence she on March 2nd and 3rd was afraid to be alone with James and that several times he had tried to get her to come into Earl, Sr.'s home which she seemed not to want to do. If I accept her to be a truthful witness, it of course follows this fear was then justified. [ 144 ] When she testified she appeared to be very stressed. For example, she said more than once she could feel her heart when she testified.

She had at times a manner of testifying that was far from perfect, for example, giving long answers that were almost speeches at times and not always responsive to questions put to her. This seemed to occur more often during her cross-examination by defence counsel. She also at times would answer a question with a question, sometimes in an argumentative fashion, for example, "Why are you asking me this?" or words to this effect. On one occasion she got so upset during her testimony that she became very tearful and the Court adjourned to allow her to compose herself.

I am of course well aware that it is stressful for a witness to testify untruthfully in a courtroom. [ 145 ] While I have no evidence as to her formal education, judging by the way she spoke and conducted herself in court, I would assess that it is limited. As well, I have no medical evidence as to her mental health status, either on March 3rd, 2010, or when she testified at trial.

Nonetheless the essence of her evidence that she was not taking any prescribed medication for a diagnosed illness was not questioned by either counsel at trial in the course of her testimony. [ 146 ] I am, however, in agreement at least in part with Crown's submission that she has manifested paranoid characteristics as a lay person would understand this term encompassing a person, for example, who had an abnormal tendency to suspect and mistrust others. One example of course would be sleeping in her car outside and for safety concerns knowing her dog would alert her to someone walking by.

Another example of course is her apparent overreaction to Paul Johnson and his brother discussing the size of the trunk of his new car in a joking manner in her presence. This tendency in my view in itself does not make her an unreliable witness as to real life events that are said to have actually occurred. Rather, it can on occasion affect I suppose how she might interpret such real events, that is what seems to have occurred with respect to the trunk incident. She did not make up the conversation. Rather, she misconstrued its effect. [ 147 ] In any event, both R. v.

Sue , referred to above at para. 33 and Faryna v. Chorny , supra , make it clear that a witness's demeanour is no longer seen to be a central tool in a court's assessment of a witness's credibility. [ 148 ] I have carefully considered the various internal inconsistencies said to exist in her own evidence, for example, as compared to what she told the police on March 3rd

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