R. v. A.H., 2023 BCPC 245

Citation: R. v. A.H. 2023 BCPC 245 Date: 20231116 File No: 8826-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REX v. A.H. PUBLICATION BAN: pursuant to

Section 486.4(1) of the Canadian Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. MCPARLAND Counsel for the Crown: M. Ogi-Harris Counsel for the Defendant: B. Fitzpatrick Place of Hearing: Kelowna , B.C. Dates of Hearing: May 18, 19, June 1, September 5, 6, 7, 8, October 10, 2023 Date of Judgment: November 16, 2023

INTRODUCTION [1] A.H. is charged with sexually assaulting K.G. on December 30, 2022, at or near Kelowna, British Columbia. At the time he was17 and a young person under the Youth Criminal Justice Act. The central issue on the case is consent. [2] Ms. G., her friend P.H., Mr. H., and another male friend named Z. spent the evening of December 29 and into the morning ofDecember 30 together. The group hung out in Ms. H.’s car, drove around, and spent a few hours at a lookout where they talked, drankalcohol and listened to music. Ms. G. said Mr.

H. committed three separate sexual assaults over the course of the evening. POSITIONS OF THE PARTIES [3] Ms. G. said the first sexual assault occurred in the back seat of Ms. H.’s car. The parties started with consensual kissing but Ms.G. said the remainder of the activity was non-consensual: as they continued kissing, Mr. H. bit her lip, grabbed her breasts, and digitallypenetrated her vagina. At some point she said she banged on the back of the front seat. [4] As this was occurring, Ms. H. began driving back to Mr. H.’s residence in order to drop him off. Upon arrival at the residence,Ms. G. asked Mr.

H. if he wanted her to come inside. Mr. H. was an international high school student and told her he needed to check toensure his homestay parents were asleep. He left the car and while he was gone, Ms. G. talked to Ms. H. and Z. about whether sheshould go inside. She decided she would go in with him, arranging for Ms. H. to pick her up in 30 minutes, after dropping Z. off at home.When Mr. H. returned to the car, Ms. G. exited the car and went inside with him. Ms. H. and Z. departed. This was around 2:00 a.m. [5] Ms. G. said this is when the second sexual assault occurred. Once inside Mr.

H.’s bedroom, she said he removed her clothes,pushed her down on the bed, kissed her, bit her lip, bit the inside of her thigh, pinned her down with his legs, and had penile-vaginal sex,all of which was without her consent. [6] When Ms. H. returned to pick up Ms. G., she waited outside for a while. Eventually, Mr. H. heard Ms. H. knocking on the frontdoor and went to speak to her, leaving Ms. G. undressed in the bedroom. He told Ms. H. they needed a bit more time and he asked her tocome back again later. Ms. H. agreed and departed with a plan to return to collect Ms. G. a little while later.

This was around 2:30 or 2:40a.m. [7] While Mr. H. was at the front door, Ms. G. had gotten dressed. When Mr. H. returned to the bedroom, he told her P. had been atthe door but he sent her away so “they had more time”. Ms. G. said this was when the third sexual assault occurred. She said he onceagain pushed her onto the bed, removed her pants, moved her thong to the side and forced her to have penile-vaginal intercourse. Ms. G.said except for the initial kissing in the car, she did not consent to any of the sexual contact and in fact she repeatedly objectedthroughout the three incidents, telling him to stop.

At the end of this third interaction, Ms. H. began texting Mr. H.’s cell phone, urgingMs. G. to come outside so they could go home. Eventually, Mr. H. saw the text messages and Ms. G. went out and re-joined Ms. H. [8] Mr. H. testified and described the events’ chronology and details of the sexual contact similarly, but said all the sexual contactwas consensual during all three incidents. Mr. H. said that Ms. G., by her words and actions, consented and was a willing participant. Hetestified “she was into it” and says that by her actions, she was consenting. [9] Counsel for Mr.

H. asserts he testified in a straightforward manner and was unshaken on cross. He argues several components ofMr. H.’s evidence were corroborated by the other evidence in the case. Specifically, he submits the Snapchat conversation between theparties immediately after the third incident and over the course of the next day undermine Ms. G.’s claim she did not consent. WhenMr. H. asked Ms. G. immediately after the third incident, “how was it u think?” in reference to the sexual activity, Ms. G. answered, “itwas decent you?” Counsel for Mr. H. argued Ms. G. was being candid and honest when she said “it was decent”.

He argues she onlyclaimed she was scared afterwards to cover up the fact she forgot she had sent that message to Mr. H. Defence counsel submits that inapplying W.(D.), I should accept Mr. H.’s evidence and acquit him. He says even if I do not accept his evidence, I should acquit himbecause there is reasonable doubt based on the evidence of the complainant. [10] As is often the case in sexual-assault trials when there are only two witnesses present, the assessment of credibility and reliabilityare central to my decision.

THE LAW General principles [11] One of the most fundamental principles of Canadian criminal law is that every person charged with an offence is presumedinnocent until the Crown proves their guilt. The presumption of innocence applies throughout the trial. An accused person does not needto prove their innocence; instead, the Crown must prove their guilt beyond a reasonable doubt. [12] Reasonable doubt is not an imaginary or frivolous doubt. It is not based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It must logically arise from the evidence or absence of evidence.

It is not enough to believe an accused is “probablyguilty”; however, the Crown is not required to prove guilt to an absolute certainty. The principle of proof beyond a reasonable doubtapplies not only to the ultimate question of whether the Crown has proven the offence, but also to the assessment of credibility. Credibility [13] In R. v. W.(D.), (SCC), the Supreme Court of Canada provided guidance on how judges ought to apply the ruleof reasonable doubt when credibility is in issue. The steps I must consider are:

1) If I believe the evidence of the accused, I must acquit. 2) If I do not believe the evidence of the accused, but am left in a reasonable doubt by it, I must acquit. 3) Even if I am not left in doubt by the evidence of the accused, I must ask, based on the evidence I do accept, whether I am convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. [14] In a later decision, R. v.

C.W.H., (BC CA), the Court of Appeal of British Columbia added a fourth step to theW.(D.) analysis, namely: If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [15] W.(D.) provides a framework for analyzing credibility where an accused testifies and ensures the trial court judge does notunintentionally fall into the trap of choosing between believing the evidence of the Crown or that of the defence: R. v. Dick, 2018 BCCA343. It is not a simply a credibility contest between the accused and the complainant.

I must not simply select which version I believe. [16] In all cases involving conflicting evidence I must turn my mind to both credibility and reliability of each witness’s evidence. [17] In R. v. H.C., 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability at para. 41: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O,R. (3d) 514, at 526 (C.A.). [18] The decision of R. v. Shields, 2017 BCPC 395, helpfully sets out a list of factors which may assist in assessing the credibility of awitness's evidence at para. 60. This non-exhaustive list includes: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2.

Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event? Did any inability to remember seem genuine, or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw, or are they adding in details based on other sources? 5. Was the testimony of the witness reasonable and consistent? Was the witness's evidence consistent with the other evidence in thecase? 6. Do any of the inconsistencies in the witness's evidence make their testimony more or less believable and reliable?

Is theinconsistency about something important, or a minor detail? 7. Was the witness's evidence plausible? [19] In assessing the reliability of a witness’s evidence, the court should consider: 1. Does the witness inadvertently offer inaccurate information? 2. Is the witness mistaken about his perception of events? 3. Are there external factors which affected the witness’s ability or opportunity to observe the events? 4. Has the witness’s memory been tainted by external factors? Application of the facts to the law [20] Many of the facts are not in dispute.

There is no question regarding the date, jurisdiction, or identity of the accused. Much of theevidence regarding how the events unfolded on the evening of December 29 into the morning of December 30 was consistent amongstthe various witnesses. There is no question sexual contact occurred between the parties and there is no real dispute about the precisenature of the sexual contact. The only question for me to resolve is whether Ms. G. consented to the sexual contact. [21] For the reasons that follow, I have significant difficulty accepting the evidence of the complainant.

I have significant concernsregarding both the credibility and reliability of her evidence. THE FIRST INCIDENT [22] Regarding the first incident, Mr. H. testified that he subjectively believed Ms. G. was consenting and says that by her actions she

communicated consent. I find Mr. H. described the first incident in considerable detail and he testified in a straightforward manner. He had a good recollection of what transpired. I agree that his evidence was not seriously undermined in cross. [ 23 ] There are several pieces of evidence that cause me concern about Ms. G.’s reliability and credibility regarding the first incident: • Although she did not refer to it in direct evidence, Ms. G. agreed in cross-examination that she wrote on Mr. H.’s forearm with a marker, drawing a smiley face and writing her name.

This occurred just before she climbed into the backseat to be with him; they started consensual kissing shortly after. This is somewhat inconsistent with the tenor of her testimony in chief that she only reluctantly switched seats because Mr. H. persistently asked her; • In chief, Ms. G. said she got from the front to the backseat by walking around the car; however, in cross, she agreed with defence she climbed over the front seat to get into the backseat of the car; • Defence suggested she ended up laying on top of Mr.

H. once she got into the backseat and she said she was unable to recall; • On cross, she said she could not recall if she played with his hair while they were kissing and could not recall if she helped Mr. H. take off his shoes; • She could not recall whether they both were laying down together in the backseat when Mr. H. changed his position and they began kissing each other; • She agreed later in cross that she cradled Mr. H.’s head on her lap, leaned in closer and had an intimate exchange before they started kissing each other.

She agreed the kissing was consensual; • She said that he began biting her lip and she did not like it, however, the physical contact between them continued, and her actions in continuing to kiss him consensually were equivocal; • When challenged that when he started touching her breast, she did not in fact push his hand away, and actually consented to the touching, she replied that she could not recall; • Although she did not mention it in direct, she agreed in cross-examination that Mr. H. had one arm around her and the other hand went down the waist of her pants to touch her vagina.

She maintained this touching was non-consensual but she agreed they were still in a physical embrace as they arrived at his house, and it was at this point she asked him if he wanted her to come in the house with him; • She agreed she was the one who asked him if he wanted her to come into his house. She agreed she was under no obligation to go in and no one forced her to do so. When asked if she did so because she wanted to spend more time with him, she said “kind of”; • At this point, Mr. H. left her in the car when he went to confirm his homestay family was asleep.

While he was gone, she had a private conversation with Ms. H. and Z. discussing whether she wanted to go in. Ms. G. decided to go in and arranged for Ms. H. to come back to collect her in 30 minutes. She said she purposely left her cell phone in Ms. H.’s car because she was not planning on being there long; • I find these facts inconsistent with her allegation that the sexual contact in the car was non-consensual. [ 24 ] After considering the evidence as a whole, I have a reasonable doubt about the lack of consent in the first incident of sexual activity in the car.

I conclude that all the sexual activity in the first incident was consensual. THE SECOND INCIDENT [ 25 ] Mr. H. testified that he subjectively believed Ms. G. was consenting throughout the second incident. She asked him if he wanted her to go in his house with him. After checking to ensure his homestay family was asleep, he told her that she could come in but they needed to be quiet. He said once they got into his bedroom, they began kissing each other, and helped each other undress. He says Ms. G. held his head while they were kissing and directed his head downward between her legs.

He said she then opened her legs for him to perform oral sex. He said she was moaning during the oral sex and he reminded her they needed to be quiet and she continued moaning quietly. He put a condom on, and she adjusted herself on the bed and put herself into position, opening her legs for him to enter her and then they had penile-vaginal sex. He argues by all of these actions she was consenting. [ 26 ] I find Mr. H.’s evidence was credible and reliable: he described this incident in considerable detail; he presented in a straightforward manner; he had a good recollection of what transpired.

When challenged, he conceded that he never expressly asked her if she was consenting but explained what actions she took that led him to believe she was consenting. I agree his evidence was not seriously undermined in cross. [ 27 ] There were several elements of Ms. G.’s evidence that caused me concern regarding her reliability and credibility: • Ms. G. said when Mr. H. kissed her and began biting her lips, she kissed him back and yet she also pushed him away at the same time. I find this conduct was equivocal at best, and objectively consistent with consent; • When it was suggested to her that she helped Mr.

H. to take her clothes off, laid herself down on the bed and adjusted the pillows, she said she could not recall; • When it was put to her that Mr. H. started kissing her leg, she agreed. When it was put to her that the kissing progressed further, resulting in Mr. H. performing oral sex on her, she said she could not recall; • It is notable that Ms. G. did not mention the oral sex in her direct evidence. She did not mention it in the typed statement which she delivered to police a week or so after the incident, despite the fact that she had significant time to prepare it and said she reviewed it

closely before submitting it. She agreed later on in cross that Mr. H. performed oral sex on her; • She testified that she could not recall whether she told Dr. Fisher about the oral sex, and eventually she agreed that she did report oral sex to Dr. Fisher; • When it was put to her she was moaning in pleasure during oral sex, Ms. G. said she could not recall. I therefore accept Mr. H.’s evidence that she was moaning in pleasure during the oral sex; • Later when asked if she cradled his head during oral sex, she strongly denied it.

However, it is difficult to put much reliance on this denial since this seems inconsistent with the fact she could not even recall whether oral sex happened, and she omitted it from her statement to police and her direct evidence; • Despite this, she later agreed with the defence proposition that the oral sex went on for a few minutes before Mr. H. put on a condom and penile-vaginal intercourse began; • There are clearly gaps in her memory about the second incident, particularly with respect to the oral sex.

I simply cannot rely on her evidence about lack of consent. [ 28 ] As will be discussed in further detail below, the text messages exchanged between the parties also seriously undermine Ms. G.’s assertion that she did not consent to any of the sexual contact. THE THIRD INCIDENT [ 29 ] Regarding the third incident specifically, Mr. H. had described returning to the room, telling Ms. G. they “had more time”, the parties undressing again and the parties continuing their sexual relations, which he said were consensual. Ms.

G. said that he removed her pants again and pushed her on the bed again and that the sexual contact in the third incident was all non-consensual. The most significant evidence regarding the issue of consent comes from the Snapchat messages marked as Exhibit 2. These messages were the subject of extensive cross-examination. The text messages started at 3:23 a.m. and ended at 4:24 p.m. on December 30. These text messages are reproduced here: Sender Text Time (where included) K. Imao A. Idk I asked first K. Idk would we have? A. Idk K. prolly not but idk A. How was it u think K. it was decent you? A.

Haha I believe it must be one of ur best experiences lol It was more than an hour (laughing emoticon) K. hahah A. U might be acc hot idk 3:31 a.m. K. (two videos sent) 10:15 a.m. A. Ugh 10:47 a.m. K. no idea i’m sorry ur goin through that 11:43 a.m. A. Ya no worries The speaking part of the exam just got finished I would say it was good 12:46 p.m. K. nice! good job 12:47 p.m. A. Ahahaha The harder

part is coming up soon lol 12:47 p.m. K. yea? which

part 12:49 p.m. A. Writing listening and reading 12:50 p.m.

K. you’ll do okay good luck 12:51 p.m. A. My pronunciation is fucking suck lol (laughing emoticon) 12:51 p.m. K. obviously if you need to cheat txt me you’ll find a way 12:52 p.m. A. Im not allowed to have phone there dummy 12:52 p.m. K. You’ll find a way (laughing emoticon) 12:52 p.m. A. Hopefully haha ahah 12:53 p.m. A. K later I’m goin in now 12:52 p.m. K. okay good luck 12:53 p.m. A. Thx I forgot that I supposed to not respond ur texts lol 12:53 p.m. K. yeah ik n i told u you definitely would 1:14 p.m. A.

Ahaha Done (screenshot inserted) Lol she has some mental issues I believe 4:24 p.m. [ 30 ] When asked by the police when the last time she talked to Mr. H. was, Ms. G. told the police she had been in communication with Mr. H. the next morning after the alleged sexual assault. In cross it became clear that her communication with him was after the third incident but in fact was immediately after the third incident. In cross-examination Ms. G. agreed that she did not mention the specific message “it was decent you?” to the police.

When asked why she did not tell them about that specific message, she said “it did not cross [her] mind”. However, she agreed she did tell the police about one of the other messages that was part of the same exchange where he said to her “You might be acc hot”. [ 31 ] Quite simply, in all of these circumstances the explanation “it did not cross [her] mind” defies belief and common sense. Ms. G. reported the sexual assault to the police the next day and spoke to Cst. Carson. She took the time to prepare a typed statement without being asked to do so and had significant time to think about it.

She agreed she reviewed it closely before submitting it, and also showed it to her mom. When she attended to give an interview to Cst. Zimmerman, she delivered the typed statement. She agreed she was asked about post-offence communications with Mr. H. The notion that it “did not cross [her] mind” to mention that she told the accused the sex was “decent” moments after the alleged sexual assault had occurred, defies belief and common sense.

It must have been self-evident to her that this text exchange would be a very important piece of information relevant to the question of consent. [ 32 ] She agreed the Snapchat conversation with Mr. H. started very shortly after she got back in the car with Ms. H., and she agreed this was within minutes of getting her cell phone back. She agreed it was moments after she discussed with Ms. H. what had just transpired, and agreed her conversation may have left Ms. H. with the impression the sex was decent. [ 33 ] She agreed Mr.

H. was asking her what she thought about the sexual relations they had just had and she told him “it was decent you?” She agreed she was reciprocating by asking him how he thought the sex was for him. [ 34 ] Defence put it to her that when she said “it was decent”, this was her honest assessment of the sexual relations they just had. She denied this. He challenged her that she was not scared but covering up the fact that she forgot about the message. She denied this and insisted she was scared.

I find this is simply not plausible or credible in the circumstances of this case. [ 35 ] Defence further challenged her by pointing out that she and Mr. H., in their messages, joked back and forth: “I believe it must be one of ur best experiences lol It was more than an hour”. Mr. H. sent a laughing emoticon. Ms. G.’s response was “hahah”. She agreed they were both laughing but said she was laughing out of awkwardness. [ 36 ] Defence further challenged her claim that she was scared of him by pointing out that later, at 10:00 a.m., she voluntarily sent Mr. H. two videos she had taken the prior evening in the car.

She agreed she wanted him to have the videos. [ 37 ] Defence further challenged her claim of being fearful by referring to the balance of the Snapchat messages they exchanged over

the course of the day on December 30. The messages were friendly in tone and the parties discussed the fact that he got in trouble for the beer cans from the night before which had been discovered by the neighbour. Ms. G. expressed sympathy toward him that he was going through that. [ 38 ] Defence further challenged her claim of fear by noting she frequently asked over the course of the day, and Mr. H. gave her several updates, about how he was doing on his exam. She agreed she was encouraging him and wishing him good luck on the exam; at one point she told him to text her if he needed to cheat on the exam.

Defence put it to her that these messages are inconsistent with her claim that she had responded earlier that the sex was decent because she was fearful of him. She maintained that she was scared, awkward, and there was quite a bit of emotions going on. [ 39 ] Defence pressed her further on her assertion of being scared and put it to her that she made that explanation up because she forgot she sent the “it was decent” text. Her response was equivocal “maybe, but I would not make up my feelings during that time”. However, earlier, Ms.

G. acknowledged to this Court that she filled a gap in her memory about spam calling Ms. H. because she could not remember how it was that Ms. H. ended up getting in touch with them. [ 40 ] In conclusion, based on the totality of the evidence, I have a reasonable doubt about the lack of consent in the third incident. [ 41 ] Across all three incidents, my doubt is based both on the inconsistencies in the evidence of the complainant and also because the evidence of Mr. H. raises a reasonable doubt about consent.

DECISION [ 42 ] In conclusion, I find the Crown has failed to prove the case beyond a reasonable doubt and Mr. H. is entitled to an acquittal. _________________________ The Honourable M. McParland Provincial Court Judge