R. v. M.A.S., 2020 BCPC 257

Citation: R. v. M.A.S. 2020 BCPC 257 Date: 20201127 File No: 89765 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.A.S. PUBLICATION BAN Pursuant to s. 486.4(1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N. PHILLIPS Counsel for the Crown: S. Lakshman Counsel for the Defendant: D.J. Taylor and G. Paulson (Articling Student) Place of Hearing: Abbotsford , B.C. Date of Hearing: July 7 -10, & Oct. 15, 2020 Date of Judgment: November 27, 2020 [ 1 ] M.A.S. is charged with sexually assaulting K.H.C. on the 28 th day of February, 2018, at or near Abbotsford, BC, contrary to s.

271 of the Criminal Code of Canada . The Crown alleges that K.H.C. was sexually assaulted by Mr. S. in the course of a meeting where she was seeking legal advice from him. This is the decision of the Court following a trial held in this matter. A. K.H.C.’S CONTACT WITH MR. S.

i) Background [ 2 ] K.H.C. told the Court she and her husband have been together thirty-one years. On February 28, 2018, she wanted to speak with a lawyer about her husband’s bail conditions on a charge of assaulting her. She said their home-based promotional business was suffering because of his bail restrictions. Although the bail conditions had been varied after the couple met with a prosecutor, they wanted the amended terms changed further to enable him to return home.

K.H.C. said when she contacted the prosecutor, she was told the couple would have to live with the revised bail conditions and that was when K.H.C. started seeking legal advice for the couple. [ 3 ] K.H.C. testified that her husband had spoken with a lawyer about his bail conditions but said her husband has a brain injury which impacts his ability to find words and communicate, and his meeting with the lawyer did not help. K.H.C. added that her husband’s work

schedule meant he was unable to make calls to a lawyer during business hours. ii) Initial Contact with Mr. S. and Telephone Records [ 4 ] K.H.C. told the Court that in February 2018, she had both a home phone and a cell phone. K.H.C. said her husband had been given some paperwork to access legal services for the assault matter and on February 28 th , she began calling some of the service providers listed. [ 5 ] K.H.C. called the Lawyer Referral Service at 1:52 pm on the 28th. K.H.C. explained what she needed a lawyer for and was given M.S.’s name and number.

By way of an admission, it was agreed that Lawyer Referral Service records show that K.H.C. was given Mr. S.’s contact information on February 28 th as a family lawyer open to consultation. K.H.C. was given the phone number [omitted for publication], the same number as the accused’s law firm at the time. K.H.C. called the number at 1:56 pm and spoke with a man who answered for about thirty minutes. She had never spoken to the accused before this date. [ 6 ] K.H.C. testified she told Mr. S. over the phone that she was looking for someone to help get her husband home.

She told him about why he had bail conditions and that she needed a lawyer to try to get the conditions changed. She said they spoke about money for legal services and she told him a bit about her family. When she made a passing remark about Mexico, she recalled Mr. S. offered that he liked Mexico and that he would go there with her. She said she laughed off his remark but found it kind of odd. Mr. S. and K.H.C. arranged to meet that day at 4:00 pm. She recalled Mr.

S. told her his office was on the second floor and that he was all by himself. [ 7 ] While the lawyer was still on the call, K.H.C. used her other phone to call her friend, M.O., to find out if she could drive her to the appointment because her husband had the couple’s vehicle at his work. Call records show the brief call to M.O. was placed at 2:25 pm. [ 8 ] K.H.C. said her friend picked her up and then the two women went to M.O.’s home in Chilliwack where M.O. was dropped off. K.H.C. was questioned whether she told her friend that the lawyer said he could get the bail conditions changed for $200.

She recalled the lawyer said his fee would be $200 per hour and that they could discuss payments but said she did not recall what she told her friend about the fees. The complainant said when she called her friend about getting a ride to Abbotsford, she assumed she told M.O. that the lawyer was going to speak with her and that he could help her. K.H.C. said she did not recall her friend warning her it seemed unrealistic that a lawyer would be willing to do this work for only $200 but acknowledged it was possible that was said. [ 9 ] Cst.

Laframboise told the Court he took over as the investigator in this case on March 14, 2018. He asked K.H.C. to provide phone logs and text messages or screen shots relating to this matter and testified about a one-page record he received from her for her home phone for February 28, 2018. Cst. Laframboise later obtained K.H.C.’s cell phone records for the same day. The officer explained how he obtained public information on phone numbers in those phone logs including a number associated with the [omitted for publication]. [ 10 ] Cst. Laframboise told the Court he learned from the Lawyer Referral Service that Mr.

S. was registered with the program. On June 1, 2018, the officer contacted Mr. S. using the phone number for his office set out in K.H.C.’s phone records. [ 11 ] Cst. Laframboise described the accused as approximately 6 feet in height, with a medium build for someone middle-age; approximately 190 pounds. He recalled that on June 1, 2018, Mr. S.’s hair was significantly longer than it was at trial. The officer said when he met with Mr. S. in mid-2018, his hair was medium in length with a bit of flow to it and slicked back, but not in a pony-tail.

He estimated his hair to be five to six inches in length, saying it fell close to the collar area in the back. The officer identified the accused in the courtroom as the person he met on June 1, 2018. [ 12 ] Cst. Poulin attended at the accused’s law firm in January 2020 and obtained diagrams of the 2 nd floor and the law office suite. Cst.

Poulin also took photos of the building, common areas, and the law firm, and testified in detail about the office space. iii) Allegation of Sexual Assault [ 13 ] K.H.C. told the Court after she dropped M.O. off at her house, she made her way by herself to Abbotsford arriving at the building for her appointment with Mr. S. at about 3:55 pm. She said she was feeling relieved at the time as she thought she had finally found someone to talk to who might be able to help get her husband back home. [ 14 ] K.H.C. said she went up the stairs and to the left and there was a reception area on the right.

She started to go through the door marked for the law office when Mr. S. called out “I am in here”. She said he was standing there with his shirt untucked, wearing dark socks and no shoes.

[ 15 ] K.H.C. testified she recognized the voice of the man she met in the office as the same one she had heard on the phone when she called earlier that afternoon. She said there was no doubt as to whom she was speaking with in the office. K.H.C. said there had been a discussion about the bail documents on the phone and she had either been asked to bring the paperwork to the meeting or she said she would do so. During the office meeting they discussed in greater detail what had been mentioned on the phone and she showed him the documents she had brought. [ 16 ] K.H.C. remembered that as Mr.

S. read the documents, they seemed to look foreign to him. He asked her questions about them and said he needed to see the undertaking which he said would have been supplied by the prosecutor or the court clerk. She recalled that she read to him her husband’s bail conditions from a document she had with her at the meeting. She said at no time until she saw a court exhibit in this trial had she seen a bail document for her husband with the word “undertaking” on it. Copies of the bail documents were obtained by counsel from the Court Registry and entered into evidence in Mr. S.’s trial.

The copies of the bail documents K.H.C. showed Mr. S. during the February 28 th meeting were not produced at this trial. [ 17 ] K.H.C. said at one point Mr. S. put his right hand over top of her left hand on his desk and started rubbing it. He asked if she was married. Mr. S. rubbed her ring finger and he asked why she was not wearing her wedding ring. She told him she had been married for twenty-nine years and that her husband’s bail was the reason she was meeting with him. She recalled he then asked about her children and what she did for a living.

She told the Court she took out her cell phone and showed him photos of the products her company produced. As she did so, he moved his chair closer, coming around his desk. [ 18 ] K.H.C. said at the beginning of the meeting, Mr. S. had been sitting behind his desk on the opposite side of where she was sitting and that he started to bring his chair around the desk to where it was beside her on her left. She said she wondered why he had done this as he could clearly see the pictures on her phone across his desk. She said he kept moving closer and he then put his head on her chest and his right hand behind her back.

K.H.C. said: “what are you doing”? She said that is when he put his left hand on her leg and started rubbing it and moving it up toward her crotch. She said she kind of pushed him away, went to stand up, and he pushed her down and said: “Nicer you are to me now, the sooner we get your husband home”. [ 19 ] K.H.C. agreed with the suggestion that they had spoken for about ten minutes regarding her husband’s bail conditions and his assault case and she understood the lawyer wanted to see the undertaking. She agreed she told the police officer who interviewed her that Mr.

S. then started rubbing her hand from across his desk. She said she pulled her hand away when he placed his hand over top of hers. In cross-examination, K.H.C. said she could not recall with 100% certainty where Mr. S. was sitting when he was rubbing her hand. [ 20 ] K.H.C. was asked many questions in cross-examination about the exact sequence of what she said transpired in the meeting with the lawyer. She said it was when she was showing the pictures on her phone that Mr. S. started bringing his chair closer to her from where he had been behind his desk. K.H.C. later told the Court Mr.

S. had already started moving his chair around his desk before he asked her what she did for a living and that throughout the meeting he had been gradually moving closer to her. The complainant recalled that at some point the accused stood up and moved his chair and sat next to her. She said she had felt uncomfortable from the time she walked in but had not said anything until he was sitting beside her. She thought she had asked him what he was doing when he put his head on her chest but was unsure if she had asked him what he was doing more than once. [ 21 ] K.H.C. said after Mr.

S.’s chair was next to hers, he put his head on her chest while continuing to look at the pictures on her phone as she held it in her left hand. She assumed his chair was touching hers at this point but she did not know. She did not recall when she realized that Mr. S.’s hand was on the small of her back but it was before his head was on her chest. [ 22 ] K.H.C. said when she started to get up, she was kind of pinned between a door and a chair and had to push away to get out. K.H.C. testified that she had to squeeze between the two chairs to get to the door to leave and that Mr. S. stood at this point.

In cross- examination, she stated she “…felt like I was in a position where there was no escape.” As she left, Mr. S. said to her not to forget to get him the undertaking. She called him a “fucking pig”. She recalled a set of French doors behind her chair and Mr. S.’s chair, but was unclear whether one or both doors were open. She said she was sure she did not have to pass through another doorway after going through a file room before getting to the common reception area. K.H.C. referred to a rough diagram of the office where the incident occurred that she drew within a couple of days of the event.

She recalled being at the law office for not more than fifteen to twenty minutes on February 28 th . [ 23 ] K.H.C.’s description of the law office did not completely align with the police photographs. However, those photos were taken some time later when Mr. S.’s work area was vacant. K.H.C.’s evidence that the file room off of Mr. S.’s office exited directly into the shared reception area for the entire second floor did not accord with the floor plan. The floor plan and diagrams show the file room had French doors into the lawyer’s office and a regular door into the foyer of the law firm.

The complainant conceded that her hand-written statement was inaccurate in stating she had entered Mr. S.’s office via the file room. [ 24 ] K.H.C. testified the chair she sat on was black in colour, plastic, with chrome legs and no wheels. She described it as a reception chair and said she was very clear on that. She agreed she did not remember completely what either her chair or Mr. S.’s chair looked like. K.H.C. was asked many questions about Mr. S.’s chair in cross-examination, and stated she did not recall his chair having arms on it and said they would have gotten in the way of what happened.

She could not say for certain that a black chair in a photo shown to her was the one Mr. S. sat in. She said a wooden client chair depicted in a photo shown to her was not what she sat in that day. [ 25 ] K.H.C. told the Court that after leaving the law office she got into her car and started driving home to Chilliwack. She said she stopped after about fifteen minutes at a highway rest area and called M.O. Her cell phone log showed that call was made at 4:29 pm. K.H.C. briefly told her friend what happened. K.H.C. said she was hysterical at the time and could barely speak.

She was in a state of shock and just wanted to get home. Before carrying on with her drive, K.H.C. said she got out to have a cigarette and when she did so she sat on the ground even though it was raining outside. She sat there and rocked and was devastated. She recalled that the lawyer’s meeting was supposed to be a glimmer of hope but it turned into a nightmare. She said she was crying, confused, and not in a good place at the time. [ 26 ] K.H.C. said her husband called her at 4:45 pm as she was driving, and asked her how the lawyer’s appointment had gone. She

told him that he needed to talk to M.O. and that she could not talk right then. He said he did not have the number and asked her to tell him. She could not recall everything she said to him during the call but remembered she had begged him to pick her up at her friend’s house and take her home where she would tell him. When asked what she revealed to her husband during the call, K.H.C. said she told him what Mr. S. had done in his office. Her husband asked her if she had called the police. She told him she had not called the police and said she felt that because Mr.

S. was a lawyer “he would chew her up and spit her out”. She acknowledged her husband still had bail conditions on him when she asked him to pick her up but said he needed to be with her. [ 27 ] K.H.C. testified when she got to M.O.’s home, her friend was outside and they hugged. J.C. then pulled up and they drove home. She said she was still crying when she saw her husband and all she wanted to do was hug him. She said there was not a lot of conversation at this time and she was more trying to assure him that it was okay and they would get through this.

Her husband dropped her off at home and he returned to work. [ 28 ] Once at home, with encouragement from both her husband and M.O., K.H.C. called the Abbotsford police at 5:36 pm that night. She spoke with the dispatcher and then to an officer. A couple of hours later an RCMP officer from Chilliwack came to her home and took a statement from her that was later transcribed. [ 29 ] The complainant told the Court that a few days before this trial got underway, she looked in her home for a business card from the [omitted for publication]. In that search, she found a notebook she had forgotten about.

The coiled notebook was about fifteen to twenty pages thick but K.H.C. said it originally had about 250 pages. She recalled that she had used the notebook to record business orders and the order sheets were later torn out. The notebook contained four pages of notes she wrote no more than two days after the incident with Mr. S. and she provided those pages to the prosecutor electronically on the eve of the trial. iv) The Evidence of J.C. [ 30 ] J.C. told the Court he is forty-nine years old. He suffers from an old brain injury and emphysema.

He said on January 24, 2018, he had been placed on bail, the terms of which were changed on February 20, 2018. J.C. agreed in cross-examination that the charge he was on bail for arose out of allegations in the family home and that the matter was in connection with his wife, K.H.C. He knew his wife had been speaking with a lawyer on February 28, 2018. He did not have his own lawyer. He said his bail conditions did not allow him to be at the family home and that situation had gone on for too long. His wife wanted to speed up the process for him to return home.

In cross-examination, J.C. said the financial hardship to the family business was something he was concerned about at the time. [ 31 ] J.C. testified that after his wife talked to the lawyer on the 28th she called him. K.H.C. told him he needed to call M.O. However, when he pressed her to find out what was going on, she pulled her car over and told him. J.C. testified that “she was talking about the meeting with the lawyer and hands on her and stuff and would not allow her to get out of the room”. He recalled she was crying and hysterical and he could not make heads or tails out of her.

He said in the course of their 31-year marriage, this emotional state was quite uncommon for her. [ 32 ] J.C. said he was in a bind because of his bail conditions as he tried to do right by his wife and by the law. He told his wife to call the police. J.C. recalled that the call from his wife had come early in the afternoon but was not certain of this. He agreed in cross- examination that it was common for him to call his wife and that he may have been the one who placed the call.

He acknowledged he would have been in breach of his bail conditions if he had made the call. [ 33 ] J.C. said after the call from his wife, he made his way to M.O.’s residence. He stayed in his truck while his wife talked to her friend and then she got in their vehicle and he drove her home. [ 34 ] In cross-examination, J.C. said in the couple of months following the incident at the law firm he and his wife communicated very little about it. J.C. was asked what his wife told him occurred in Mr. S.’s office and he clarified that she said she was blocked from leaving not that she was forcibly kept from doing so.

He added that she wanted him to know that she was being prevented from leaving. He agreed that because the lawyer was not going to be helping his family, sorting things out was going to take more time.

v) The Evidence of M.O. [ 35 ] M.O. told the Court on February 28, 2018, she was close friends with K.H.C., although their friendship broke down in the summer of 2019. She said on February 28 th her friend asked her for a ride to Abbotsford but M.O. said she did not want to go and invited her friend to use her car instead. K.H.C. told her she wanted to see a lawyer in Abbotsford to have a restraining order removed so that her husband could come home that night.

She recalled K.H.C. was very, very excited about the meeting. [ 36 ] M.O. said she got a call later that day from K.H.C. whom she understood to be at a highway rest area and that she was crying. K.H.C. was difficult to understand because she was hysterical. M.O. said she had never heard her friend like this before. M.O. thought her friend had been in a car accident. K.H.C. told her that the lawyer had sexually assaulted her. M.O. said she was able to calm her friend down so that she could drive back home.

M.O. showed the police her cell phone log indicating K.H.C.’s call to her from the rest stop was placed at 4:30 pm. [ 37 ] M.O. told the Court K.H.C. arrived at her house about twenty minutes after the end of the phone call. She said they stood outside talking for a while and then someone drove K.H.C. home. M.O. said her friend called her again an hour or two later and told her she had decided to call the police and asked her to come to her house to support her. She did so and they waited a long time for the police to arrive.

M.O. gave a statement herself to the police on April 17, 2018. [ 38 ] In cross-examination, M.O. agreed that her friend, K.H.C., had shared with her that she was having a difficult time finding someone who could help her deal with her husband’s bail conditions and this was upsetting to her. She agreed her friend gave her a rather rosy version of what she thought was going to happen in the meeting with the lawyer to which M.O. bluntly told her she was being overly optimistic. She also agreed that K.H.C. told her the assistance was going to cost $200. M.O. said that was low and did not sound right.

She acknowledged K.H.C. left for the meeting in a buoyant frame of mind and that she desperately wanted to get her husband back in the family home.

[ 39 ] In cross-examination, M.O. was asked whether K.H.C.’s upset in the call at 4:30 pm on February 28 th was due both to the assault by the lawyer and her disappointment that the lawyer was not going to solve the bail problem. M.O. answered that her friend only mentioned the assault. She added that the matter involving her husband was not mentioned much and that the phone call was very much focussed on the sexual assault. M.O. said discussions about the problem with the bail conditions did not come up until later in the day.

M.O. agreed K.H.C. told her about a week later that she had heard from a police officer that the lawyer was not allowed to see female clients. vi) The Evidence of B.S. [ 40 ] The final witness for the Crown was the accused’s wife, B.S. Ms. S. and the accused separated for a period of time following this allegation but as of the time of this trial were reconciled. Ms. S. is a lawyer who practices exclusively in family law. She operated the law firm where the allegation before the Court took place.

She told the Court that she and the accused first occupied the office space in June 2016 and she moved out in May 2020. [ 41 ] Ms. S. said her husband was the only male lawyer practicing in the office at any point and it was just the two of them who practiced there on February 28, 2018. She said her husband is 5’11 tall. The firm employed a female secretary in February 2018 whose official work hours were from 8:30 am to 2:30 pm. The main office phone number was [omitted for publication]. [ 42 ] Ms.

S. told the Court she called the police the weekend before this trial was to start and offered to provide a statement but learned that was pointless as there would not be enough time to prepare a transcript for court. She acknowledged that the police had asked her earlier if she was interested in providing a statement and she said she was not. She maintained that she had not refused to provide one. [ 43 ] Ms. S. said she was not aware of the law firm ever experiencing a situation where it had unauthorized persons in the office impersonating her or her husband.

She agreed the practice was to lock and alarm the building when leaving and she expected her husband to be responsible to lock up. She agreed it was a private law office and it was important not to have anyone unauthorized around and that no man had keys to the space except Mr. S. She said only cleaning staff would have authorized access. [ 44 ] In cross-examination, Ms. S. said there was no access from the file room into the common second floor foyer. She said the French doors swung open into her husband’s office, not into the file room. Ms. S. identified her husband’s office chair as depicted in Exhibit # 18.

She was 100% certain her husband had two black wooden Windsor chairs for client seating and they were the only ones she knew him to use for clients. [ 45 ] Ms. S. testified that she later checked her calendar for February 28, 2018, and recalled that a trial she was engaged in at New Westminster unexpectedly finished early that afternoon. After court, she went back to her Abbotsford office to prepare closing submissions for the next day. She thought she would have arrived back in her office around 3:45 or 4:00 pm. Ms.

S. agreed the police had asked her what she was doing on February 28 th but she had not called the officer back who had inquired. She did not know whether she had gone straight from New Westminster court to her Abbotsford office on the 28 th . B. POSITIONS OF THE PARTIES [ 46 ] Counsel for the Crown submitted that despite the issues relating to the photographic line-up and the dock identification in this case, there was an abundance of evidence, direct and indirect, of the identity of Mr. S. as the person K.H.C. dealt with on the date in question. [ 47 ] Mr.

Lakshman submitted the defence theory that someone had impersonated Mr. S. was never squarely put to the complainant and it was an irrational inference to draw and without evidentiary foundation. It was also submitted that K.H.C.’s evidence held up to gruelling questioning and that her reliability was born out by corroborating evidence. It was submitted that the complainant gave clear and accurate details about the sexual assault in Mr. S.’s office. Finally, Mr. Lakshman highlighted the fact that K.H.C. was not directly challenged on the sexual touching itself. [ 48 ] Mr. Taylor, on behalf of Mr.

S., submitted that there were significant concerns as to the credibility and reliability of K.H.C.’s evidence in this case. It was argued that her testimony was both internally and externally inconsistent. [ 49 ] It was also submitted on Mr. S.’s behalf that there were significant issues regarding the identification of the accused as the perpetrator of the assault. It was argued that the photo line-up selection made by K.H.C. was, at best, that of recognizing a resemblance and not a positive identification. The Court was asked to assign it minimal, if any, weight. It was also argued that K.H.C.’s sighting of Mr.

S. months’ later at the Chilliwack courthouse tainted her photo line-up viewing. [ 50 ] Mr. Taylor submitted that there were alternative exculpatory inferences which could be drawn from reasonable possibilities arising from the evidence, or lack of evidence, that were inconsistent with guilt and an acquittal should result. It was argued that B.S. was a credible witness whose evidence should give rise to doubt. [ 51 ] Amongst other problems, Mr.

Taylor noted K.H.C. would not concede she may have been mistaken about the layout of the office, insisting instead that renovations might have been done since she was in the office. He also submitted that K.H.C.’s version of what the perpetrator did in the meeting should have caused her to raise an alarm and the fact she did not do so was inexplicable. C. CREDIBILITY AND RELIABILITY OF K.H.C.’S EVIDENCE

i) Legal Framework [ 52 ] Mr. S. did not call evidence at trial. In R. v. D. (B.), 2011 ONCA 51 , the Court noted (@ para 114): What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue,

there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to thedefence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings… [53] Justice Bundrett observed that credibility and reliability are different concepts in R. v. Hurst, 2019 BCSC 307 (@ para 11): …credibility has to do with a witness’s veracity, and reliability with the accuracy of the witness’s testimony. Accuracy engagesconsideration of the witness’s ability to accurately observe, recall, and recount events in issue.

Any witness whose evidence on an issueis not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a crediblewitness may give unreliable evidence. [54] The application of reasonable doubt applies to credibility. In examining the evidence at trial, I must consider whether it appearedto have been honestly given, and reliable in that it was not inaccurate due to honest error. In assessing K.H.C.’s credibility, I find ithelpful to have in mind a list of observations set out by Justice Brothers in R. v. Jackson, 2019 NSSC 202 (@ para 124): …

a) What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness' testimony, and the documentary evidence, and the testimony of other witnesses: NovakEstate, Re, 2008 NSSC 283(N.S. S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular place and conditions: Faryna v. Chorny (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.);

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [55] Defence counsel submitted that K.H.C.’s testimony should be examined for inconsistencies with her earlier statements. K.H.C. gave a statement to the police on February 28th; she wrote in a notebook about the event a day or two afterward; and she spoke to theprosecutor who put her comments in writing on the eve of trial. [56] The Supreme Court of Canada considered the use to be made of prior inconsistent statements in R. v.

McInroy & Rouse, (SCC), 1978 SCJ 104 (@ para 24): …in my view of s. 9 of the Evidence Ac and of the common law relating to the admissibility of prior inconsistent statements, the jury isentitled, and should have been so instructed here, to take into their consideration the contents of the prior inconsistent statement not onlyon the issue of determining credibility of the witness, St. Germaine, but also in determining the issues of fact arising in the trial to whichthe contents of the prior statement may be relevant.

Put another way, once the prior inconsistent statement has been proven, eitherthrough the witness who has made the statement or by other evidence, the contents of the prior inconsistent statement become evidencebefore the tribunal of fact in the same way as the testimony during the trial by the witness in question forms a part of the record; and it isleft to the trier of fact to determine which, if either, of the statements by the witness, that is the testimony in court or the prior statement,sets out the truth partially, totally, or not at all.

It is in my respectful view both an error in law and an offence against common sense toinstruct the jury that the witness’s prior statement, particularly when given in the circumstances of this case, may be considered by thejury only on the issue as to credibility of the witness, St. Germaine, and must be disregarded on the issues of fact arising in thisstatement; and, more precisely, that the jury must be told that the prior statement may not be considered by them as proof or even assome evidence relating to the matters asserted in that statement. [57] The Ontario Court of Appeal in R. v.

A.M., 2014 ONCA 769 addressed the issue of the consistency of a witness’s testimony (@paras 12 & 13): …one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in thewitness box and what she has said on other occasions, whether or not under oath…Inconsistencies may emerge in a witness’ testimony attrial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently atdifferent times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheralsubjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, theinconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned. [Citations omitted.] [58] In R. v.

C.C.F., (SCC), 1997 SCJ 89, the Supreme Court considered the effect of inconsistencies between aprior statement and viva voce evidence (@ paras. 31-32): The law of evidence has developed rough guidelines for determining whether a witness has adopted a prior inconsistent statement.Originally, prior inconsistent statements were admissible solely for attacking a witness’ credibility, even in circumstances where the

witness adopted it as true. However, over time, the rule has been broadened. If the witness admitted the prior statement was true, it was considered to have been adopted and would be admissible for the truth of its contents… Initially, the conditions that had to exist before a witness could “adopt” a prior inconsistent statement were not considered by the courts. Instead, judges relied upon their assessment of the witness’ demeanor and reaction upon being confronted with a prior statement to determine whether the witness adopted it as true. However, in R. v.

Antoine , it was held that adoption occurs when the witness admits the truth of the statement under oath. This was the approach taken by Estey J. in McInroy v. The Queen . He found, at p. 608, that the question to be resolved was whether the witness had “adopted it in the witness box as being the truth as she now sees it”. In R. v.

Smith , the Alberta Court of Appeal held that a previous inconsistent statement is adopted if the witness accepts it as being true at the moment she is testifying… [Citations omitted.] ii) Analysis [ 59 ] Given that K.H.C. confirmed the accuracy of all the information from her in the July 5, 2020 letter from the Crown, defence counsel submitted the letter was something the Court could consider for the truth of its contents. K.H.C. agreed in cross-examination that her hand-written notes were a true statement of what occurred and they were accurate.

Defence counsel did not ask for the notes or the police statement to be admitted for the truth of their contents. Despite earlier arguments to the contrary, counsel for the Crown agreed K.H.C.’s statements could be used to assess her credibility regardless of whether she adopted them as true and accurate. [ 60 ] K.H.C. testified that during the phone call with the lawyer he said either “I’d go to Mexico with you,” or, “I’d like to go to Mexico with you”. She said she was confident of this and remembered the exact statement two years later.

However, in her hand-written notes she put in quotation marks “I’m always looking for someone to take to Mexico.” She said the use of quotation marks did not cause her to agree that it denoted his exact words. She said she did not know why she wrote something different than she testified to.

When asked why she did not tell the officer who took her statement about the remark about Mexico, K.H.C. pointed out that the officer did not ask her about the phone call with the accused other than to note there had been one. [ 61 ] K.H.C. preferred her testimony at trial about Mexico over what she had put in her notes a day or two after the event. I find it unlikely that her memory now would be better on this point and find this evidence causes concern as to both her credibility and reliability, albeit on a rather peripheral matter. [ 62 ] K.H.C. testified the building she parked at to meet with Mr.

S. was directly across from a Superstore. She recalled the building contained other businesses and that the outside door she used was in the middle of the building. She said she went up the stairs to where there was a reception desk associated with another business and there was no one at the top of the stairs. She said the door to the left from the reception desk area led into the law office.

Other evidence at trial broadly confirmed the accuracy of these observations. [ 63 ] Photographs of the [omitted for publication] were shown to K.H.C. and she identified his office but said it looked much different in the pictures where it was depicted in an empty state. K.H.C. was asked many questions about the physical layout of the law firm. She agreed the office she identified in her own diagram as the place where the incident occurred was the space marked “empty office” in the police diagram.

She said she did not know whether the office had been altered since she had been there. [ 64 ] K.H.C. said when she came up the stairs and headed toward the law office as indicated by the signage, she did not see anyone else around. She did not know with certainty whether anyone else was there. In cross-examination, K.H.C. agreed that as she entered the law office, she looked around but did not remember specifically looking into other offices. She testified that when she entered Mr.

S.’s office she had gone through the space marked “foyer” in the police diagram and exited later through the area marked “file room”. She conceded that her police and hand-written statements were incorrect in indicating she entered through the file room when the meeting started. [ 65 ] The complainant recalled that Mr. S. was standing somewhere where he could see her as she entered the office but did not recall where exactly either of them were at that time. She said he came toward her, took her hand, placed his arm behind her back, and ushered her to sit down as he placed a chair for her to do so.

She agreed her handwritten statement: “He came to meet me at the door and put his arm around my waist and guided me into the office”, was inaccurate in that he did not meet her at the door. [ 66 ] K.H.C. recalled having to step back for Mr. S. to place a chair for her to sit down. She recalled the chair she sat in was a hard plastic one without arms. K.H.C. agreed that in her handwritten notes she wrote that Mr. S. sat by a window. At trial, she did not recall everything that was around him in his office, such as any artwork. [ 67 ] When asked about Mr.

S.’s clothing, K.H.C. testified his shirt was untucked in that it was completely out of his trousers, hanging down to about the area where the pant legs attach. In her handwritten statement, K.H.C. agreed she wrote: “During our conversation he slowly got closer & started untucking his and I had already started to feel uncomfortable.” She said she crossed out the words because that was not what happened and his shirt was already completely untucked when she first saw him. There are other words crossed out in the four pages of notes.

She agreed her handwritten notes end kind of suddenly with “[a]t some point I noticed he had untucked his shirt and thought it looked like he had undone his pants”. She told the Court she was clear when she first walked into his office that his shirt was already untucked. [ 68 ] K.H.C. did not mention that Mr. S.’s shirt was partially unbuttoned except when she testified. She told neither of the police officers she spoke with on February 28 th about the top two or three buttons of Mr. S.’s shirt being undone and she did not make a notation about it in her hand-written material.

She said she did not think to tell the police about the shirt being partially unbuttoned. When asked if she wrote her statement in the hopes there would be a trial and a conviction, K.H.C. said she had no idea where this matter would end up and that she has a habit of writing things down. [ 69 ] K.H.C. testified that when she walked into the lawyer’s office, his appearance – shirt undone, untucked, and no shoes; was shocking, not just the sight of no shoes. She testified in chief that seeing the man without shoes on was shocking although she agreed she had not put this in her hand-written notes.

She said it was the way he was dressed - shoes off, shirt untucked, and buttons undone; that

was alarming to her. She thought the least a professional such as a lawyer could do was to be presentable. [ 70 ] K.H.C. was asked about writing in her notebook that it “…looked like he had undone his pants”. She clarified that she had a memory of his belt being undone, hanging open, but did not see his pants undone in terms of his zipper and button being undone. When asked whether she thinks if someone’s belt is undone, their pants are undone, she answered “In my mind, that’s what I thought, yes”. She agreed she only saw his belt hanging open, not that his button and zipper were undone.

The complainant was questioned at length on this point and reiterated she thought his pants were undone, but concluded that she only saw his belt hanging down and could not say his pants were undone. [ 71 ] K.H.C. told the Court the chair she sat in was located toward the closed French door but was not touching it. She said she sat back in the chair during parts of the interview because there was a board at the front of Mr. S.’s desk. She estimated there was 18 to 24 inches between the front of her chair and the edge of his desk, which she described as boot-shaped. When asked how Mr.

S. then managed to get his hand behind her back, K.H.C. recalled she was sitting back in her chair, but not exactly how she was sitting. She did not remember when it was that she realized his hand was at the small of her back but it happened at the same time that his head was on her chest. [ 72 ] K.H.C. was shown a photo of a modern black office chair with side arms and was asked whether it was the chair Mr. S. sat in at the law office. She could not say for certain it was. She did not think the one he sat in had arms because they would have been in the way for Mr.

S. to do what he did to her. [ 73 ] K.H.C. was asked about the comment in her police statement that she kind of got pinned between the desk and the door in Mr. S.’s office as she stood up to leave. When asked whether she was hoping to convey by these words that she was in an inescapable position, she answered that was how she felt. She did not disagree that the placement of her chair opposite Mr. S.’s desk was normal in the context of a meeting with a professional. [ 74 ] K.H.C. said as she got up to leave the office she went between her chair and Mr. S.’s chair.

She walked into the filing room but did not recall if she opened a door to the room or not. She said Mr. S. came behind her and said not to forget the undertaking. She recalled the second filing room door opened into the common entrance or reception area. Other evidence at trial established that the file room had a second door to the centre foyer of the law firm, not to the common building area on the second floor and K.H.C.’s evidence on this point was incorrect. In my view, this is a very fine distinction to draw. I find that K.H.C.’s description about the general lay-out of Mr.

S.’s office and her diagram, simply and accurately captured the rough outline of the space in question. [ 75 ] The complainant agreed that Cst. Guzman told her at the conclusion of her interview on February 28 th that if she remembered anything else about the matter, she should write it down. She said that is not what she used her notebook for and that she just wrote things in it that came to mind. Later in her evidence she seemed to agree that the officer’s remark prompted her to start writing in her notebook.

She denied in cross-examination that what she wrote covered everything that happened and pointed out that the last page seemed to end abruptly, unfinished. When asked what was incomplete about her notes, K.H.C. said in the years since the incident, and even in the couple of days before trial, things had come to her mind about the matter, such as Mr. S.’s comment that female prosecutors can be bullies. [ 76 ] The complainant was questioned at length about the exact sequence in which the incident at the office occurred.

She was asked whether the first answer she gave in her eight-page police statement accurately set out the order of events. K.H.C. said it was only a synopsis of what occurred over a fifteen-minute period. She testified that she has never said that paragraph sets out the exact sequence of events and she was explaining what happened to the police interviewer but not giving him an exact order. [ 77 ] When asked why her first answer in her police statement did not address what became of Mr.

S.’s request to see her husband’s undertaking, K.H.C. reiterated this part of her statement was a synopsis of the encounter with the lawyer before getting into the details about what happened to her. K.H.C. said that other than in her testimony, any recounting by her of what had occurred did not follow the exact sequence of the event. [ 78 ] K.H.C. agreed when the police took her statement the evening of the incident, she told the officer that Mr. S. tried to put his hand down her shirt but she had not mentioned this in her direct evidence. She also agreed she had not recorded this in her hand-written notes.

She was unable to explain why she had not mentioned this later. It detracts from K.H.C.’s ability to recall and relate what occurred. [ 79 ] K.H.C. said the incident was very upsetting and things happened very fast. She told the officer Mr. S. had his hand on her leg and crotch area for no more than thirty to forty seconds. K.H.C. apologized when pressed for minute details of what happened and said she did not know how much clearer she could get about the sixty seconds or so when Mr. S.’s hands were on her. [ 80 ] K.H.C. said after speaking in person with Mr.

S. for about ten minutes about the bail problem, she felt confident he would be able to help. Until things started to go awry at the very end of the appointment, she thought he was going to assist. Although she was told she would have to return with her husband’s undertaking, she did not accept the suggestion that the meeting went badly due to the fact the bail problem had not been resolved rather than because Mr.

S. had assaulted her. [ 81 ] The complainant did not disagree with the proposition that the time her memory for the event would have been freshest was the day she gave her police statement, February 28, 2018. However, she noted it had been a traumatic event and she was still upset and crying when the police interviewed her. After many questions in cross-examination about why she did not tell the police or make a note herself that Mr.

S. had asked her why she did not have a ring on, K.H.C. simply said she was unable to say why. [ 82 ] Defence counsel suggested there was something not quite right with K.H.C. seeking legal advice instead of her husband and submitted the Court should find J.C. was capable of doing so himself. J.C. was not asked about his ability to effectively obtain legal advice. K.H.C. also said her husband worked until 4:30 pm every day and could not make the phone calls needed because of this. [ 83 ] K.H.C. was cross-examined about not already knowing a lawyer to get advice from when she sought out Mr. S.’s assistance.

It was suggested contacting someone new was at odds with the many civil court cases in which she had “participated” in over the years.

K.H.C. said except for the car accident cases, she had not been represented by counsel in the other matters. I found the questioning of K.H.C. about finding a lawyer through the Lawyer Referral Program in the face of her purported extensive court history of no assistance to the Court. [ 84 ] K.H.C. agreed that during the thirty-minute phone call with Mr. S. they talked about the domestic assault charge against her husband and she told him that she had spoken to the police about the matter.

In cross-examination, K.H.C. denied telling the police who investigated the matter against her husband that there was nothing to the allegation. The complainant agreed the revised bail conditions did not allow her husband to speak with her by phone but said she mistakenly thought such contact was permitted. [ 85 ] K.H.C. said her husband’s bail restrictions were negatively impacting their home-based business and she wanted him to come home. She agreed that when she spoke with M.O. to borrow her car to meet with Mr.

S., her friend probably said something to try to temper her expectations of what the lawyer could get done that day. K.H.C. said she was aware the meeting with the lawyer was set for 4:00 pm and she knew the court closed at 4:30 pm. She could not have thought he would get it sorted out that same day although she said she was hopeful. [ 86 ] K.H.C. was asked if she told M.O. later that she learned Mr. S. was not allowed to see female clients and said she may have done so. She denied she learned this from the police. M.O. testified that her friend told her this and said she heard it from a police officer.

Both officers Poulin and Laframboise testified they did not tell K.H.C. or her husband that Mr. S. was not allowed to see female clients alone and they were not aware of anyone having done so. [ 87 ] Cst. Laframboise told the Court that on June 1, 2018, he spoke with Mr. S. on the phone and shortly afterward met with him at his law office. Cst. Laframboise reviewed the photos taken of the law office by Cst. Poulin and pointed out some things that looked different from when he viewed it on June 1 st . [ 88 ] Cst. Laframboise noted that when he met with Mr.

S. on June 1 st in the space he understood to be his office, the accused had a desk near the window where he sat in a roller-chair with his back toward the window. The officer sat across from him on the other side of the L-shaped desk. The officer recalled there were two fixed chairs in the office at the time and he sat on one of them but could not recall any other details about the chair. He thought his chair was a bit to the left or west as he sat on the north side of the French doors in Mr. S.’s office. [ 89 ] In cross-examination, Cst.

Laframboise was asked about the sightline from the front door to the law office and whether it was possible to see through the adjoining room into the accused’s office. The officer thought it was possible because of the small distances involved and he did not agree with the suggestion that it was impossible to see until a person was at the door of the adjoining room. The officer acknowledged he had not made inquiries as to whether there were men who worked in other businesses on the second floor of the building who had a physique similar to Mr.

S. [ 90 ] B.S. identified the various offices within the law firm space on the exhibit diagrams. She said there is no doorway from the common foyer area into the file room next to her husband’s office. She said access to the file room is from inside the law office foyer as well from her husband’s office and the only way into her husband’s room was from the inside foyer of the law firm. She said the French doors in her husband’s office opened into to his office; they did not swing out toward the file room. [ 91 ] Ms.

S. was shown a photograph of a black ergonomic desk chair and said it was the one used by her husband the entire time he worked in that office. She also identified a photo of a black wooden chair with arms and said it was one of two identical client chairs. She said they were unique Windsor chairs. Ms. S. said she was 100% sure those chairs were the only ones her husband used in his office. Ms. S. did not say that she saw what client chairs were in his office on the afternoon in question. K.H.C. spoke only about two chairs in the lawyer’s office, the one she sat in and the one Mr.

S. sat in. [ 92 ] K.H.C. said the only other time she saw the accused was at the end of March 2018, when she was at the courthouse in Chilliwack. There she saw a man who appeared to be Mr. S. He was at one end of the courthouse gallery and she was a long way away at the other end.

In cross-examination, K.H.C. agreed she could not be certain the man she saw in the Chilliwack courthouse was the accused because he was a distance from her. [ 93 ] K.H.C. said she cringed when this happened at the Chilliwack courthouse and she said to the person she was with “I think that’s him standing there”, “I have to get out of here”, and they left quite quickly. In cross-examination, she maintained that she said to her companion “that piece of shit is standing over there”.

K.H.C. told the Crown in her pre-trial interview that she did not say anything when she saw the man she thought was the accused in the Chilliwack courthouse. She had confirmed what was written in the July 5 th letter by the Crown was accurate. [ 94 ] The defence suggested that K.H.C.’s police statement and her notebook entries contained everything she could remember about the incident, but a careful read of those two documents makes clear that is not the case. For example, the statement to the police is silent as to the lengthy phone call which preceded the in-person meeting.

K.H.C. said her hand-written statement was not 100% complete and she noted it appears to end without finishing on the 4 th page. [ 95 ] It is axiomatic that a witness might be unable to recall everything about a brief and traumatic encounter twenty-eight months earlier. K.H.C.’s answers on such things as the height of Mr. S.’s desk, the art on his office walls, and the minutiae of his office layout and furnishings only assist the Court marginally in considering whether the Crown has proven its case or a reasonable doubt exists.

In scrutinizing the evidence, I find K.H.C. to have been fairly observant about what happened in the law office on February 28, 2018. Despite lengthy questioning over multiple days, her testimony about what she saw in the law office and what happened to her there was mostly consistent, internally and externally. [ 96 ] In cross-examination, K.H.C. was asked many questions about what was behind Mr. S. as he sat at his desk. She answered “…do you want me to go from what I remember or from what I wrote down because – what I wrote down happened at that time and this was two – almost two-and-a-half years ago, sir.

I – my memory other than a lot of stuff that was going on in that office – is blocked, so”. In

answer to a follow-up question as to where Mr. S. was when she first saw him, she stated “I honestly do not recall everything that was around him” and added “I don’t recall any of it”. [ 97 ] I agree with the defence that K.H.C.’s evidence suggesting that the office may have been altered after February 28 th was unfounded and accept Ms. S.’s evidence that it had not. However, the photos K.H.C. was asked to comment on at trial clearly showed the office in question in a vacant state, not like it was on February 28, 2018.

I found that K.H.C. had a good opportunity to observe the basic layout of the office where the incident occurred and she did her best to convey to the Court what she recalled. [ 98 ] Some of the matters K.H.C. was unable to recall related to events or things one might not expect her to remember as a matter of common human experience. I would not expect a person leaving the perpetrator’s office in the immediate aftermath of a sexual assault to recall with precision what the layout of the office was like.

For example, the type and placement of the chairs would understandably have been of little significance to her at the time. Such items on their own may not be problematic, but I have also considered collectively whether her lack of recall or accurate recounting of what transpired should cause the Court concern. Similarly, I have considered the cumulative impact of any inconsistencies in her evidence. [ 99 ] K.H.C. became emotional at times and frustrated at other points when testifying. This impacted her ability to communicate her evidence.

I found her prepared occasionally to make assumptions or fill in blanks when she did not know the answer or did not recall what had happened and I must be cautious with her evidence as a result. Although the defence submitted that K.H.C. was not prepared to make any concessions, I find she did in fact, albeit infrequently. [ 100 ] Conversely, I found K.H.C. to be quite transparent in her evidence. She did not dispute that some of the details she provided had changed over time.

She submitted her hand-written notes when she found them and she readily produced the entire original notebook in which they were made despite the privacy interest she may have had in it. [ 101 ] Most of the inconsistencies in K.H.C.’s evidence were about peripheral matters that a person in her shoes would have been unlikely to notice at the time let alone be able to recall nearly two and half years later. I found K.H.C. acknowledged some lapses in memory and her inability to recall everything about the appearance of the office and what happened there.

With a few exceptions, I did not find her testimony to be strategic or evasive but rather demonstrative of her trying to convey what happened on the offence date in the face of a difficult cross-examination. [ 102 ] Nonetheless, I am alive to the potential frailties in K.H.C.’s evidence including inconsistencies between her police statement, her notebook, and her testimony. I have scrutinized the July 5, 2020, letter of the Crown outlining K.H.C.’s pre-trial interview comments.

The letter states that K.H.C. did not actually tell the person who accompanied her to the Chiiliwack courthouse what her thoughts were upon seeing the man she believed to be Mr. S. whereas she had testified to doing so. However, I do not find this discrepancy significant on the whole of the evidence. [ 103 ] Despite concerns I have noted about K.H.C.’s testimony, overall I found her to be a believable witness. Her testimony was corroborated by the testimony of others on some important elements. With the exception of the allegation of Mr.

S. putting his hand inside her shirt, K.H.C.’s description of the sexual touching was unchanged over time. Her testimony was not contradicted by other evidence as to the actual sexual assault. iii) Phone Calls Made from the Side of the Highway [ 104 ] The Crown asserted that K.H.C.’s demeanour when she pulled over on the side of the highway and spoke with her friend and her husband after the meeting with the lawyer was circumstantial evidence supporting the Crown’s version of events. The evidence was clear that K.H.C. called M.O. shortly after driving away from the law office.

K.H.C.’s evidence was corroborated by phone records and M.O.’s testimony. [ 105 ] During that call, K.H.C. said she was hysterical, could barely speak, and in shock. She said she was speaking mumbled, jumbled, and she was very upset. She got out of her car at the rest stop, sat on the ground in the rain and rocked – “I was devastated”. K.H.C. denied the suggestion that because Mr. S. did not help her with her husband’s bail, she accused him of impropriety. M.O. said K.H.C. was crying, difficult to understand because she was hysterical, and she had never heard her friend like this before.

She initially thought her friend had been in a car accident. [ 106 ] K.H.C. spoke with her husband at 4:45 pm as she drove home from the meeting. She said her husband was the one who called her but he prevaricated on this point. I find he did so because he knew his bail terms prohibited him from such contact. Cell phone logs show he placed the call as K.H.C. readily testified despite the fact it showed her husband was breaching his bail by calling her. [ 107 ] J.C. told the Court that he could not really understand his wife as she was speaking erratically.

He recalled she was crying and hysterical and he could not make heads or tails out of her. He tried to calm her down so he could figure out what she was trying to say. He said in the course of their 31-year marriage, this emotional state was quite uncommon for her. [ 108 ] I find the evidence about K.H.C.’s demeanour during the phone calls on her drive back to Chilliwack tends to support the Crown’s version of what happened that day. D. IDENTIFICATION OF THE PERSON WHO ASSAULTED K.H.C.

i) K.H.C.’s Description of Mr. S. [ 109 ] Defence counsel submitted that K.H.C.’s evidence about the identity of the person who assaulted her suffered from reliability problems and should be carefully scrutinized. In R. v. Crate, 2011 BCJ 2372 , the BC Court of Appeal considered the admissibility and use of prior identification evidence ( @ para 47 ): ...If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the

trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider theentirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification madeby the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions givenwill be central to that assessment… [110] In assessing K.H.C.’s identification evidence, there are a number of factors I find noteworthy.

She spoke to him at length twice.She recognized his voice the second time. She had a lengthy opportunity to observe the accused in his office. She saw him close-up andwithout any impediments such as poor lighting or obstructions. Until the last minute or two of their meeting, the atmosphere was notstressful or confrontational. A considerable amount of time elapsed between the office meeting she had and the subsequent line-up anddock identification. [111] K.H.C. testified about trying to find a lawyer to help with her husband’s bail conditions and how she made contact through theLawyer Referral Program.

The evidence was clear she was given the name M.S. along with a phone number for him. She called andspoke at length with a person who left her believing she was talking to that person. Cst. Laframboise called the same phone number andspoke with a person who apparently answered to the name M.S. The evidence of Ms. S. linked the accused to the same phone number. [112] K.H.C. testified she went to the address provided and saw a sign for “[omitted for publication]” when she got upstairs. The photosshow signage for the law firm on the outside door, near the reception desk, and on the entry wall. Mr.

S. told her “I am in here” and sheentered his office. He introduced himself as Mr. S. She recognized his voice as the same one she had heard over the lengthy phone callearlier that afternoon. Until the last minutes of the meeting, the person K.H.C. dealt with seemingly conducted himself as a lawyerobtaining information in a routine initial meeting with a potential client. [113] K.H.C. testified that Mr. S. was about 6 foot 1” or 2”. She recalled the shirt he wore on February 28th was light in colour andinitially said he was wearing a lighter coloured suit, probably grey or blue.

In cross-examination, she clarified that Mr. S. was notwearing a suit jacket at the time and it appeared she simply misspoke earlier. She told the Court the top two or three buttons on his shirtwere undone. [114] K.H.C. said Mr. S. is a white man. She recalled his hair was a darker brown, not black or blond, and it was shorter in length butnot crewcut short. She said his hair was very dishevelled and it was neither short nor long. She thought he was in his early fifties andestimated his weight to be about 200 pounds but said it was hard to estimate his weight because of his shirt being untucked.

She told theCourt she had never seen the man before. She said she was shocked at his appearance in that she expected to see a lawyer dressed like alawyer and the lack of shoes shocked her.

K.H.C. was asked to compare the man she identified in the courtroom with the person she dealt with on February 28th and said she did not recall him having a moustache on the 28th (he did in court), his hair was a little greyernow, and he appeared a bit thinner now as well. ii) Photographic Pack Line-up Identification [115] Before turning to an examination of the photographic line-up evidence in this case, I note what Justice Romilly stated aboutphotographic line-up evidence in R. v.

Miller, 2003 BCSC 118 , 2003 BCJ 215 (@ paras. 14 & 17): In dealing with a photographic line-up at least three prerequisites should be followed:… (

b) The selection of the other persons to form the line-up should be fairly made, so that the suspect will not be conspicuously differentfrom all the others in age or build, colour or complexion or costume or in any other particular. [Citation omitted.] … …The photos should resemble as closely as possible the eyewitnesses’ description. If that is not possible, the photos should be as closeas possible to the suspect. [116] Cst. Laframboise testified about his involvement in the compilation of the photo pack utilized in this case. Cst. Laframboiserecalled that the photo of Mr.

S. came from his ICBC driver’s license and that it occupied position # 7 in the collection of ten pictures.He said the ICBC photo depicted Mr. S.’s hair pulled tightly back and extending over his collar, a bit longer. He said when he dealt withMr. S. in person, he did not have his hair in a ponytail and it appeared to have more volume to it, sticking up a bit and not quite as long inthe back. In cross-examination, the officer agreed he could not say for sure that Mr. S. had a ponytail in the photo used in the photo packbut that it looked to him like he did and this was the inference he drew. [117] Cst.

Laframboise noted that the photo ballot picture of Mr. S. depicts him wearing an earring and said he had no recollection ofhim having one when he dealt with him in person. He noted that with Mr. S.’s hair pulled back in the photo he appears a bit sleeker andyounger than he did in person but with a fairly-similar build. [118] Abbotsford Police Constable Poulin told the Court on July 31, 2019, he presented a photographic line-up to the complainant. Cst.Poulin testified that the complainant was unknown to him prior to this encounter and he had no prior involvement on this file.

He did notknow anyone in the photo line-up and did not know which position in the line-up the alleged suspect occupied. [119] Cst. Poulin explained the photo pack process in detail. The video of the presentation of the photo pack shows K.H.C. viewed thecollection of photos four times and on the fourth time, she stopped at photo # 7 and selected it. At one point during her viewing, K.H.C.stated that the photos were twenty years old.

The officer held the photo in question up to the camera to record the selection although theofficer said he did not look at the photo image himself nor did he know the identity of the person selected. [120] When asked by Cst. Poulin how certain she was of her selection, K.H.C. indicated 50% certainty. The officer agreed that itappeared K.H.C. wanted to say something more at this point but he moved on to the next item. When Cst. Poulin asked K.H.C. what theperson’s involvement was, she said he was the lawyer who assaulted her.

The officer wrote down on the back of the ballot form thatK.H.C. added: “When I was in M.’s office his hair wasn’t pulled back. I do not recall an earring in his ear. If he was standing in front of

me I could point the guy out. Its been a year and ½.” The officer said he did not write down verbatim what K.H.C. said. [121] Cst. Poulin said K.H.C. was instructed not to make a guess. He said he did not think this was what she was doing at the time; shehad made an identification and was 50% certain. In cross-examination, Cst. Poulin said “sure” to the suggestion that K.H.C. was notcertain and she was making a guess. Cst. Poulin agreed that K.H.C. continued to look at the photos after making her identification andthen she said “I actually think that is him”. [122] In cross-examination, Cst.

Poulin said K.H.C. stated if she had “him” standing in front of her she could pick him out butacknowledged the transcriber used the pronoun “em” meaning “them”. He agreed he had not edited the transcript to state “him” when hereviewed it. [123] K.H.C. testified that on July 31, 2019, she attended the Abbotsford Police Department and dealt with an officer she had never metbefore for the purpose of looking at a photo line-up. She was shown a group of photos and the officer who met with her gave herinstructions about the process that were written on a piece of paper he worked through.

She said the officer did not give her anyadditional instructions about the process and when she asked him questions about it, he said he could not answer. She spoke with no oneelse about the process. K.H.C. said she identified photo # 7 and was 50% certain about it. She agreed she told the officer during the line-up process that the photos were hard and her level of certainty as to her selection was “fifty, fifty”. She said the person was the lawyerwho assaulted her.

She told the officer if she had the guy in front of her that she could pick him out, meaning if she saw a live line-up. [124] I find the image K.H.C. selected appears to be a dated image of Mr. S. In all ten photos, very little clothing is shown, mostly justthe upper part of the collar around the neck. Photo # 7 stands out somewhat from eight of the ten images where the men appear to bewearing casual clothing. The men in photos # 1 and # 7 appear to be wearing dress clothing. All ten men appear to be similar in age andCaucasian.

K.H.C. was not presented with the photos until July 31, 2019, seventeen months after the incident. [125] In cross-examination, K.H.C. agreed that the limited list of descriptors offered about the assailant in her testimony encapsulatedall of what she remembered about the man’s appearance. She conceded that those descriptors did not help her pick out photo # 7. Shedenied having an idea of what a lawyer looked like in selecting the only photo in the line-up depicting someone who allegedly lookedlike a lawyer and said it did not affect her selection.

She said her choice had absolutely nothing to do with his clothing. [126] In closing argument, counsel for Mr. S. submitted that K.H.C. should have told the police about seeing the accused at theChilliwack courthouse when she went through the photo line-up process in July 2019. K.H.C. was not asked if viewing the man in theChilliwack courthouse affected her selection of photo # 7 in the line-up. [127] This Court must decide whether K.H.C.’s answer that she was “fifty/fifty” as to the strength of her selection was a qualifiedidentification or a failure to make an identification.

I find the composition and presentation of the line-up to K.H.C. was carried outappropriately and fairly. However, the dated nature of the photos; the dress clothing of the men in positions # 1 and # 7; the passage oftime between February 2018 with the viewing in July 2019; and K.H.C.’s “fifty/fifty” answer, cause me to find the photo line-upidentification of Mr. S. in this case was a qualified identification.

As such, I will treat it cautiously and give it very little weight. iii) Courtroom Identification [128] K.H.C. identified the accused in the courtroom as the person she met in the office in February of 2018. However, throughout mostof the trial, Mr. S. was the only man in the courtroom other than counsel and court staff. I agree with the submission of Mr.

S. thatK.H.C.’s docket identification of him should be accorded very little, if any, weight. iv) Conclusion on Identification [129] The identification evidence in this case includes all of the linkages of the accused to the location where the sexual assault tookplace, including but not limited to: • the referral by name and phone number by the Lawyer Referral Service; • the telephone call to a person who held himself out as the lawyer M.S. at the same phone number; • K.H.C. followed the information about Mr.

S. to the site of the law firm and saw signage in the building identifying it as“[omitted for publication]”; • the voice recognition; • the continuation of the conversation started on the phone when the two met in person; and, • the complainant’s description of what the perpetrator looked like. [130] Despite the very limited weight given to the photo line-up and no weight to the K.H.C.’s dock identification, I find the whole of the identification evidence in this case leaves me with no doubt that the person K.H.C. met with in person on February 28th was Mr. S.,the accused before the Court. E.

CIRCUMSTANTIAL EVIDENCE AND DRAWING INFERENCES

i) Applicable Law [131] R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742, reminds trial judges not to simply compare stories about the event orto shift the onus to the accused. The evidence from the Crown in this case must be scrutinized for its credibility and reliability before itcan be acted upon. Reasonable doubt applies to credibility and reliability. The W. (D.) framework applies where there is evidence arising

from the whole case that, if true, is capable of preventing the Crown from proving beyond a reasonable doubt an element of the offence.In assessing the evidence, I am to consider whether it appeared to have been honestly given and not inaccurate due to honest error. Indeciding whether the Crown has proven Mr. S. guilty, the evidence must be considered as a whole. [132] It is trite law that Mr.

S. is presumed innocent and that he bears no burden to prove his innocence at any point in this proceeding.He asks the Court to find the Crown has failed to prove beyond a reasonable doubt that he was the perpetrator of the sexual assault andthat an inference can be drawn that someone else, perhaps a janitor in the office building, impersonated him. [133] In R. v. Sanchez, 2012 BCJ 2418, the Court of Appeal considered the matter of circumstantial evidence. The Court stated (@ para40): In R. v.

Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 33, Madam Justice Charron, for the majority, stated with respect tocircumstantial evidence, "in order to convict, [a trier of fact] must be satisfied beyond a reasonable doubt that the only rational inferencethat can be drawn from the circumstantial evidence is that the accused is guilty." [134] The Supreme Court of Canada consider the defence of a third party in R. v. Grandinetti, 2005 SCC 5 , 2005 SCJ 3(Abella, J. @ para. 48): The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence.

Ifthere is an insufficient connection, the defence of third party involvement will lack the requisite air of reality. [Citations omitted.] [135] In R. v. Lola, 2020 SJ 311, the Saskatchewan Court of Appeal considered the inferences which may be drawn where an accuseddoes not testify (@ para 37): It is trite that at trial, Mr. Lola was under no obligation to present an evidentiary foundation to raise a reasonable doubt or to provealternative inferences. An accused may choose to rely solely on the Crown to demonstrate gaps.

However, this Court can takecognizance that when an accused chooses not to testify or to call evidence, that decision carries the risk of not providing the trial judgewith the necessary evidentiary foundation for a defence theory, which, if accepted, could have precluded the impugned inferences frombeing drawn. A failure to provide any further evidence pointing to an innocent explanation undermines the alternative inferences that areavailable to a trial judge. [Citations omitted.] [136] In R. v.

McGillivray, 2015 ABPC 20, Judge Allen observed (@ para 87): The trier of fact must be careful to distinguish between inference and speculation. In Watt’s Manual of Criminal Evidence (Toronto:Carswell, 2013), David Watts explains at p. 46: Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwiseestablished in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks toestablish.

If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissiblespeculation and conjecture. [137] The SCC considered circumstantial evidence in R. v. Villaroman, 2016 SCC 33 , 2016 SCJ 33 (@ paras 36-38): I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere factthat it arises from a lack of evidence.

As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidencemay result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities”which are inconsistent with guilt…I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, butcertainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with theinnocence of the accused”... “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience appliedto the evidence or the absence of evidence, not on speculation. [Citations omitted] …the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable ofsupporting an inference other than that the accused is guilty. [138] Judge Allen considered the nature of the evidence before the Court in R. v.

Abdulkadir, 2018 ABPC 244 (@ para. 218): Circumstantial evidence is any evidence, testimonial or real, other than eyewitness testimony, whereby the trier of fact may infer a fact inissue. An inference must be a logical and rational deduction. In order to support a conviction the inference must be drawn from provenfacts… However, an inference supporting acquittal does not need to arise from proven facts because reasonable doubt can arise from theabsence of evidence… ii) Defence Theories [139] K.H.C. was asked whether she ever considered that the person she met with on February 28th was not a lawyer.

She answered“He introduced himself as Mr. S.”. As

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