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R. v. Lavalley, 2018 BCPC 282 (CanLII)

Date:
2018-11-05
File number:
88306-1-K
Citation:
R. v. Lavalley, 2018 BCPC 282 (CanLII), <https://canlii.ca/t/hvzzr>, retrieved on 2024-03-28

Citation:

R. v. Lavalley

 

2018 BCPC 282

Date:

20181105

File No:

88306-1-K

Registry:

Abbotsford

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

BENJAMIN ALBERT LAVALLEY

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE K. D. SKILNICK

 

 

 

 

 

Counsel for the Crown:

M. R. Rygus

Counsel for the Defendant:

D. Petri

Place of Hearing:

Abbotsford, B.C.

Dates of Hearing:

October 29-30, 2018

Date of Judgment:

November 5, 2018

 


Introduction

[1]           The Accused Benjamin Albert Lavalley is charged with the commission of four offences under the Criminal Code of Canada that are alleged to have arisen out of an incident which occurred in Abbotsford, BC on a hill near the Abbotsford Regional Hospital on September 13th or 14th of 2017.  The offences he is charged with are:

(Count 1) Sexually assaulting the Complainant (contrary to section 271)

(Count 2) Common assault of the Complainant (contrary to section 266)

(Count 3) Uttering a threat to the Complainant to cause death or bodily harm to her (contrary to section 264.1)

(Count 4) Attempting to suffocate the Complainant while committing an assault (contrary to section 246(a)).

[2]           The Complainant has testified to conduct on the part of the Accused which would amount to the commission of all of these offences.  The Accused denies that he committed any of these offences, or that he was even present with the Complainant at the time she alleges these things occurred.

[3]           At the trial of this matter both the Complainant and the Accused testified.  Three other witnesses testified, two of whom are members of community organizations who worked with the Complainant.  The third was a Forensic Nurse who conducted an examination of the Complainant hours after the offences are alleged to have occurred.  A significant amount of Facebook communications between the Accused and the Complainant was tendered in evidence as well, much of which the Complainant says she has no memory of sending.

[4]           Following is a summary of the evidence heard at the trial of this matter, a summary of the law applicable to this case, and the reasons for reaching the result in this matter.

Summary of Evidence

[5]           The Accused and the Complainant were involved in an intimate relationship for a period of time leading up to the incident alleged in this case.  It was not a healthy relationship.  Like many other communities in Canada, Abbotsford has a sizeable population of homeless persons, a social problem that his grown in recent years.  The recent growth in the number of homeless persons results from a significant rise in the cost of housing in this region and the shortage of affordable housing.  The problem is made worse with the prevalence of the usage of street drugs such as crystal methamphetamine, heroin, crack cocaine, and more recently with the additional problems that come with the presence of fentanyl and carfentanyl in the synthetically produced drugs.  Abbotsford has a very active recovery community, but it must often seem to those who try to help the afflicted like they are fighting a losing battle.

[6]           The Accused and the Complainant have both been caught up in this tragic lifestyle.  Both were homeless at the time of the events which bring them to court, and both were active in their addiction to street drugs.  Their addictions have led them to the commission of crimes in the past, and both admit that in the course of their respective addictions they were also selling illegal street drugs to other users.

[7]           According to the Accused, he and the Complainant met sometime in 2016.  He testified that he had been homeless for many years and the two of them met at a shelter for the homeless here in Abbotsford.  For a time the two of them lived together in a tent under a bridge.  He said that it was the Complainant who introduced him to heroin and that for a time he sold heroin and crystal methamphetamine that she provided to him from someone who supplied it to her.  The Complainant admits to selling drugs in the course of her addiction, but denies that she supplied the Accused with drugs to sell.

[8]           The Complainant testified that she would often attempt to communicate with the Accused using the Facebook Messenger app.  Each of them had cell phones at various times, but neither could afford any type of cell phone service and so they would rely on finding places with free wireless internet Wi-Fi, or they might use the computers available at the public library to communicate with one another.

[9]           In cross-examination of the Complainant, she was shown a series of Facebook messages allegedly sent from her to the Accused and vice versa.  The Complainant acknowledged that they appear to come from her Facebook account, but for most of them, she does not remember sending them, and in some cases, she says they don’t sound like something she would say, though the sentiments expressed in many of them appear to be correct.  The messages are accompanied by a profile picture which the Complainant agrees is hers.  In some cases they information sent matches what the Complainant says she would have likely told the Accused, such as in the message where she tells him which pharmacy she is going to have her prescription for Suboxone filled, or in the messages providing phone numbers that she admits are hers.

[10]        The messages sent between the Complainant and the Accused in June of 2017 describe a one-sided and mistrustful relationship between the two.  The Complainant’s messages to the Accused express her love for him and her sadness in not seeing him or hearing from him.  Most of these were not responded to by the Accused.  On June 14, 2017, the Complainant messaged the Accused and told him “I can only assume that you hate my guts, are in jail, or dead and really hope it’s neither the first or the last.”  She tells him that she misses him and loves him.

[11]        Sometime around June 22, 2017, a message was sent to the Accused on the Complainant’s Facebook account in which she purportedly tells him “Ben, I’m pregnant and yes it’s yours.”  In the message, she says that she is having the baby in November.  This was untrue.  The Claimant denies sending the message and says that it is medically impossible for her to become pregnant, and says this is why she believes that she could not have sent this message.  The Accused believes that the message is an indication of the dysfunctional state of mind that the Complainant was in at the time because of her drug use, and that it was an attempt by her to manipulate his affections for her.

[12]        It appears that at this time the Accused was also not in good state of mind.  On June 24, 2017 he finally responded to all of the messages that the Complainant had sent, but his response is incoherent and nonsensical.  This is followed by a message from him telling the Complainant not to be sad.  Her response tells him that she is going into hospital and asks him to come and see her.  It also accuses him of seeing another woman.

[13]        In messages that appear to be sent by the Complainant the following month, she continues to express sadness over the fact that it appears that their relationship is at an end, before concluding “I think I can safely say I have tried everything and this is just not going to work.”  She invites him to get anything that she has which might belong to him.  Later that month, on July 21, 2017, another message was sent from her Facebook account to the Accused stating “I don’t know why I can’t get you out of my head, but I can’t.  I don’t know why you left that night and never came back, but you left me to go through everything on my own.  I can’t get you out of my thoughts, and I miss you so much, even though I know that I shouldn’t.”  In the same message, she tells the Accused, “I am going to be making a camp on the hill beside the hospital so that I have somewhere to go and hide from everyone who won’t leave me alone.  The guys in that house won’t stop harassing me and I have to sleep with the door locked and I have no one to talk to about anything and I can’t go anywhere else because they have all of my money tied up in rent for being here.”  She goes on to accuse him of having a new girlfriend.

[14]        On July 25, 2017, the Complainant once again appears to have messaged the Accused to tell him that she had put up a tent on the hill by the hospital.  Later, she messaged the Accused calling him and his new girlfriend “unproductive leeches on the belly of society.”

[15]        On August 3, 2017, another message was sent from the Complainant’s Facebook account to the Accused, stating, “I really believed you when you said you loved me.  I guess I couldn’t have been more wrong.”  The following day, the Accused responded to the Complainant telling her that he still cared for her and that he did not have any new girlfriend.  It appears that he was unable or unwilling to reply to any of her subsequent messages, because on August 27, 2017, there is another Facebook message purportedly sent by her, chastising the Accused for ignoring her, and demanding an explanation and an apology from him.  The message states, “You have stripped me of everything, my life has no meaning and I don’t need to be here anymore.”  In a lengthy message sent later that day, she alternates between being angry with, and critical of him, while professing her love for him.

[16]        The Complainant’s messages continued to go unanswered.  On August 31, 2017, it appears that she sent another message, in which she told him, “to be honest, I just really want you to fuck me baby.”

[17]        The messages suggest that the Complainant wanted to meet with the Accused, but he was not responding to these messages.  She testified that she attempted to set up a meeting with him on September 6, 2017, but he did not show up.  She testified that on September 11, 2017, he had contacted her and asked her to meet him beside a church near [omitted for publication] Street in Abbotsford.  She says that she went there to meet him and waited for two hours, but that he did not show up.  In his testimony, the accused denies contacting her about such a meeting.

[18]        The Complainant testified that the Accused contacted her again the next day and arranged a time for the two of them to meet at a different church in the same location.  She says that once again, he failed to attend at this meeting.  The Accused, in his evidence, denied that he had any contact with the Complainant at the time or that he set up this meeting.

[19]        The next night, September 13, 2017, the Complainant says that she was on her way to the McDonald’s Restaurant on [omitted for publication] in Abbotsford, when she met the Accused.  In her statement to police, she said that she was on her bike, but in her testimony at trial, she said that she misspoke, and in fact it was the Accused who was on a bike, while she was on foot.  She testified that she did not wat to talk to the Accused and so she said “hi” to him and turned and kept walking.  She said that it was her intention to intention to walk to a recovery house where she was staying at the time.  She acknowledged at trial that the route she took was not the most direct one, and it is difficult to know what to make of this.

[20]        The Complainant says that on the walk back, the Accused was shouting insults and profanities at her.  The route that she took to get back to the recovery house took her past the Abbotsford Regional Hospital on Marshall Road.  The Complainant testified that when she was beside the hospital parking lot, she decided to attempt to get away from the Accused by running up a hill towards some bushes, hoping that the Accused would stop following her, but she says that he did follow her.  When she got to the top of the hill, she sat down.  She testified that the Accused began to smoke some sort of drug, but that she did not participate because she was trying to detoxify and in her words, she was “dope sick.”

[21]        The Complainant consistently testified that she did not consume any drugs that evening.  She says that she had not used any illegal drugs for the past three days.  This is in conflict the evidence of the Forensic nurse, whose notes indicate that the Complainant admitted using crystal meth sometime in the past 24 hours.

[22]        The Complainant testified that by this point in time it was dark out.  She decided to get up and leave and she tried to pick up a stick for protection.  As she was doing so, she says that the Accused punched her on the jaw, once, with a closed fist.  She said that he placed his arm around her head such that the inside of his arm, where the elbow bends, was covering her mouth and nose.  She says that she could not breathe and felt like she was going to pass out.  She testified that the Accused said to her, “You deserve to die.  Nobody’s gonna find you.  Your family won’t know if you’re alive or dead.”  She says that he then released his grip, stating “I can’t kill you.”  She testified that she pleaded with him not to hurt her any more.  She said that he pointed to some blankets and said that the two of them were going to lie down on the blanket, adding “don’t go making a bigger deal of this.”

[23]        The Complainant testified that while the two of them were lying on the blanket, the Accused pushed the back of her head toward his penis and indicated that he wanted her to perform oral sex on him.  She testified “I did what he said.  I was afraid.”  She said that after a few minutes the Accused ejaculated into her mouth.  When the act was complete, the two of them went to sleep.

[24]        In cross-examination, the Complainant was reminded that she had told police that the Accused had urinated on the blanket that he gave her.  She said that she now recalled this, but did not mention it in her examination in chief because she had forgotten this detail.

[25]        The Complainant testified that although she had the opportunity to leave, she did not do so because she was afraid of reprisal from the Accused.  She decided instead to “wait it out”.  She said that when he awoke the next morning, he instructed her to go and check if his bike was still there and to find him some cigarette butts to smoke.  She says that she did as he asked.

[26]        The Complainant says that the Accused got up and left and that as he was leaving she began to yell at him.  She says that she yelled, “You need to run far and fast.  I’m going to police.  You’re not going to get away with it this time.”

[27]        After the Accused left, the Complainant went to the hospital.  She testified that she saw two police officers at the hospital and that she tried to report the incident to the police, but that they laughed at her.

[28]        The Complainant testified that she saw Kiah Ashley, who was an employee of an organization known as “The Warm Zone”, a drop-in center for homeless women in Abbotsford.  The Warm Zone is operated by an organization called SARA, a non-profit society that provides safe refuge and community-based resources for women in Mission and Abbotsford.  Ms. Ashley happened to be at the hospital assisting another client of hers, when she happened to see the Complainant.

[29]        The Complainant and Ms. Ashley gave somewhat differing accounts of their meeting at the hospital that day.  The Complainant testified that she asked Ms. Ashley to come with her into the emergency room.  Ms. Ashley recalls that as she was leaving the hospital, she saw the Complainant by some bushes near the hospital and she approached the Complainant.  Ms. Ashley describes the Complainant as looking distraught.  She recalls that the Complainant had bruises and lacerations to her face.  Ms. Ashley asked the Complainant what happened, and gave her a cigarette.  She convinced the Complainant to come into the hospital for an examination.  Ms. Ashley was not asked what the Complainant had told her and the Complainant testified that she did not have any discussion about the incident with Ms. Ashley.

[30]        Ms. Ashley testified that although the Complainant looked very dishevelled and dirty, she did not appear to be intoxicated.  It appeared to Ms. Ashley that the Complainant had been living outside for several days, and she was walking with a limp and required the support of Ms. Ashley to walk into the hospital.  Ms. Ashley also testified that the Complainant did not smell very good and that she could detect the odour of sexual fluids coming off of the Complainant.  In cross-examination, she elaborated that she could smell what she believed to be the odour of semen coming off of the Complainant.

[31]        The Complainant was examined by Forensic Nurse Debbie Davidson at about 4:00 p.m. on September 14, 2017.  Ms. Ashley was present in the room for much of the examination.  Nurse Davidson also describes the Complainant as not appearing to show signs of intoxication.  She observed visible dried blood on the Complainant’s left cheek and on both earlobes.  A hole for a piercing on the Complaint’s right earlobe appeared elongated.  Nurse Davidson observed bruising to the Complainant’s neck as well as on her left hand at the base of the thumb.  The top layer of the Complainant’s skin had been rubbed off on her left wrist and there was bruising on the back of her left leg below the knee.  There was also bruising on the Complainant’s right wrist, and there was also bruising on her right leg, close to the groin.  During the examination the Complainant reported that her face was really hurt.

[32]        Nurse Davidson conducted buccal swabs of the inside of the Complainant’s mouth to be possibly used for DNA analysis.  No forensic or DNA evidence was presented at trial.  In the examination, Nurse Davidson recorded that the Complainant had admitted to using crystal methamphetamine sometime on September 13, 2017.  The complaint made to Nurse Davidson was of a sexual assault of forced oral sex only, and accordingly no vaginal examination was performed.

[33]        At the time, the Complainant was living in a recovery house located about a kilometre from the [omitted for publication].  When the Complainant returned to the house, she had reported being sexually assaulted to the operator of the house, Christine Lasko.  Ms. Lasko describes the Complainant as being “physically and emotionally a mess” and as appearing upset and scared.  A decision was made to move the Complainant to a recovery house in Surrey, BC.

[34]        Ms. Lasko was cross-examined about injuries that the Complainant had received in another incident which had occurred about two weeks earlier in September.  Ms. Lasko testified that the Complainant had been injured in that altercation, but that the only injuries she suffered in that incident were to her arms.

[35]        The Complainant did not report this incident to police for several months, not until March of 2018.  In the meantime, it appears that she continued to send messages to the Accused on Facebook.  On September 19, 2017, there is a message sent to the Accused on her Facebook account, telling him that she was moving, and telling him that she still loved him.  She gave him the phone numbers of her recovery house in Abbotsford, and later she gave him the number to the house that she was living at in Surrey.  In a message dated September 25, 2017, she purportedly wrote, “you have made me so incredibly sad, and what, now you don’t answer me at all because of what you have done, and now I see that you obviously are online to be with another girl.  You most obviously were cheating on me to begin with and now you just left me alone with not a care in the world for what this has done to me.  You ruined me and now I won’t be the same.  I have nightmares constantly and it is because you won’t do anything but pay attention to your drugs.”

[36]        The messages reference a court appearance that the two of them have in January, but no evidence was presented as to what this is about.  In a message sent on September 27, 2017, the Complainants says, “I am going to apply to the Crown to drop the pending assault charges against you, the ones I am required to attend court for on the 18th of January 2018.  I see no need for this to be the next time we meet.”  (This evidence was tendered by the Accused).  In the message she goes on to ask the Accused to meet her, promising that there will be “no tricks” and that she is not looking “to get even or play any games.”  She writes, “I simply would like to tell you in person (on the phone) that you didn’t do everything wrong and that I love you for who you are on the inside.  I will only remember the good times and cherish the good memories that we made together.”

[37]        On November 17, 2017, it appears that the Complainant sent another message to the Accused in which she wrote, “How you can look in the mirror or sleep at night after what you did is beyond me.  I know that I can’t, so thanks for adding a new horror to my already nightmare filled nights, and all that you have to say is oh, BTW I’m sorry about what happened.  It is not fucking enough.  I know that you cheated on me with that dirty cunt but I guess you will do the same to her.  You two deserve each other.  I’m having you charged with attempted murder and unlawful confinement so get a good lawyer you lying cheating half-retarded monkey.  I wish I never met you.  You ruined my life.  Get help cause you fucking need it.”

[38]        More Facebook messages appear to have been sent by the Complainant to the Accused.  In March of 2018 a message was sent from her Facebook account to the Accused telling him that she was having trouble controlling her emotions where he was concerned and that she still loved him.  She went on to say that she wished that things were different and that “certain things had never happened”.  She once again mentioned an upcoming court appearance in April for which she had been subpoenaed to attend.

[39]        In April of 2018 it was the Accused who messaged the Complainant, telling her that he now had a phone and that he missed her.  That appears to be the last exchange of messages between the two of them, though the Facebook pages tendered in evidence show that on May 5, 2018, the Complainant “waved” at the Accused.

[40]        The Complainant met with police to give a statement in April of 2018.  The information giving rise to these charges was sworn on June 5, 2018.

[41]        The Accused denies being with the Complainant at all on the alleged offence date and says that she is making up the accusations against him.  He testified in cross-examination that at this point in his life he was very active in his addiction and has a poor recollection about what he was doing at this time.  

Applicable Law

[42]        Both Crown Counsel and Defence Counsel have characterized this case as one that turns on the credibility of the Complainant.  If I am satisfied, beyond a reasonable doubt, that things occurred on September 13th or 14th as the Complainant has described, then the offences that the Accused is charged with have been made out and he should be found guilty of those offences.  But if it is a reasonable possibility that, as the Accused says, he was not present at that location at that time, he is entitled to the benefit of that doubt and should be acquitted.  Even if I disbelieve the Accused, but still have a reasonable doubt about whether or not the Complainant is being truthful about what happened to her on the alleged offence date, the Accused is entitled to the benefit of that doubt as well.

[43]        More specifically, the act that the Complainant describes in which the Accused forced her head towards his penis to perform oral sex on him constitutes a sexual assault, in that it involves the intentional application of force upon the Complainant, without her consent, in such a manner that would violate her sexual integrity.  The smothering that she describes, occurring in the course of an assault, constitutes an offence under section 246 (a) of the Criminal Code.  The punch to the jaw which she says she received from the Accused is an assault under the Criminal Code, and the words she says he uttered would amount to a threat under section 264.1.  No one has suggested otherwise.  The issue is whether or not I should be satisfied on the requisite burden of proof beyond a reasonable doubt that these things did occur.

[44]        The theory of the Defence is that the Complainant is lying about what happened to her, or at the very least, about who victimized her.  The Defence is not required to prove a motive for this, although a motive has been suggested in submissions.

[45]        The test in a criminal trial is not which side I believe, but whether or not the Crown has proven each offence beyond a reasonable doubt.  I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of each offence beyond a reasonable doubt. 

[46]        Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the following directions set out by the Supreme Court of Canada in R. v. D.W. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at p. 757, which I paraphrase as follows:

First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but am left in reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myself whether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt.

[47]        In R. v. C.W.H. (1992) 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the late Mr Justice Wood aptly stated: “If after a careful consideration of all the evidence, you are unable to decide who to believe, you must acquit.”

[48]        There are a number of considerations which a court can often apply when determining issues of credibility.  Firstly, a court may consider evidence which pertains to the honesty and forthrightness of the witnesses.  Evidence of character, background or other behaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonest conduct proven, such as false statements made to police in the course of the investigation.  In this case, both key witnesses are persons whose addiction has led them to commit crimes of dishonesty to support their habit.  This does not mean that their evidence must be excluded in its entirety.  It is only one factor to be weighed in the assessment of credibility.

[49]        A court may also consider the demeanour and bearing of a witness while that witness gives testimony, although it is often suggested that demeanour is one of the least accurate barometers of credibility.  In the modern era, demeanour is rarely a significant factor in assessing credibility.  Its misinterpretation can create real problems.  I will simply state that in this case, there was nothing about the demeanour of either key witness that gave any reliable indication of untruthfulness.

[50]        The credibility of a witness may be assessed by its internal consistency - that is by the presence or absence of any contradiction within itself.  It may also be assessed by its external consistency - that is by the presence or absence of any contradiction with the remainder of the evidence.

[51]        For the most part, a complainant in a sexual assault is no different than a complainant in any other Criminal Code offence when it comes to assessing credibility.  However a particular sensitivity and alertness must be had in order to dispel myths and stereotypes that exist in regard to complainants and accused persons in sexual assault cases.  A delicate balance must be maintained to ensure that the presumption of innocence is preserved and that societal pressures to believe all complainants in sexual assault cases do not result in a thumb being placed on the scales of justice in favour of conviction.  The law must remain vigilant against wrongful conviction.  There are too many examples of this in our nation’s history and fidelity to the requirement of proof of criminal offences beyond reasonable doubt must remain a fundamental Canadian value and must not be eroded.

[52]        At the same time, it must be recognized that those who complain of being assaulted in this most personal and intimate manner do so at considerable risk and with little to gain personally.  Madam Justice L’Hereux-Dube of the Supreme Court of Canada recognized this in R. v. Seaboyer 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, noting that this is an offence which often goes unreported.  In respect of the reliability of such complaints.  She wrote:

171     The preoccupation of the law with the credibility of the complainant in such cases and the blatant stereotyping of such complainants as untrustworthy are difficult to comprehend.  As we have seen, sexual assault is the most under-reported of all violent crimes.  Even after a report, the police and prosecutors filter out a significant number of the complaints based upon their congruence with rape myth and stereotype.  Logically it would seem that the likelihood of false complaints is, in this context, much reduced compared to that for most crime.  Indeed, there is no evidence to support the contrary.

[53]        In assessing credibility in cases of sexual assault therefore, the trier of fact must be vigilant about not permitting what are known as “rape myths” to colour the assessment of credibility.  These include the following stereotypes:

1.            Women often provoke or precipitate sexual assault.

2.            Women often agree to have sex, but later complain of sexual assault.

3.            Women say no when they do not necessarily mean no.

4.            Women who do not want to have sex will physically resist.

5.            Women of bad character, e.g. those who drink or use drugs, are more likely to consent.

6.            Women who are sexually assaulted will tell someone immediately.

7.            “A woman scorned” is more likely to concoct a false accusation of sexual assault.

[54]        It is important to be mindful to avoid this type of stereotypical thinking.  In the past the use of these stereotypes has been especially problematic in their wrongful application to groups of vulnerable and marginalized complainants.  This includes complainants who are:

1.            Indigenous

2.            Sex trade workers

3.            Racialized or ethnicized

4.            Intoxicated or addicted

5.            Persons with disabilities

6.            Those living in poverty

7.            Spouses

[55]        In the present case, the defence presented is what is sometimes called a “flat denial”.  The Accused takes the very straightforward position that he simply did not commit the offences he is charged with.  As the Honourable Judge E.C. Blake of this court said at paragraph [45] of his decision in R. v. E.H.S. 2012 BCPC 450, it is important for a court not treat such a defence as somehow illegitimate or less worthy of an analysis of its credibility than any other more complicated type of defence.  There are many situations in which all that an accused person can do is to deny the offence under oath or affirmation and present himself for cross-examination.  When the “flat denial” defence is put forward, the evidence of the accused must be considered, not in isolation but rather in the context of the evidence as a whole. 

[56]        As the BC Court of Appeal stated in R. v. P.W. [2003] BCCA 542, the mechanical approach to credibility set out in R. v. W.D., supra, may be deferred until the evidence of the Complainant and the Accused can be looked at together and an overall conclusion is reached on the basis of the whole of the evidence.

Analysis

[57]        In the present case, the Accused maintains that he did not commit the offences that he is charged with, and that he was not even present with the Complainant when she says the offences took place.  He is unable to recall specifically where he was on September 13 and 14 of 2017, but he says that he is sure that he was not with the Complainant that day.  His inability to specifically recall what he was doing or where he was on the alleged offence date is attributed to the fact that the charges against him were not sworn until approximately nine months after the alleged offence date.  As a homeless person, he has unique challenged to acquiring any sort of recording his activities from day to day.  Persons who are financially secure might have work records, bank records, email, or travel records.  This Accused has none of these, other than the Facebook records he has presented.

[58]        The Accused acknowledged that at the time he was active in his addiction and that this affected his ability to think clearly and coherently at the time.  A good example of this can be found in his Facebook message sent in late June of 2017 to the Complainant.  In response to a request from her to meet (possibly to have sex), his response was “Holy sheep never existed I know now those rampid do rags gunna be shittin all ere.”  In cross-examination, even he admitted that this response makes no sense and he has no idea what he was trying to say.  This example of his incoherence illustrates the fact that any recollection the Accused has from the latter half of 2017 is highly unreliable because of the head space that the Accused was in at the time.

[59]        Given the state of the Accused’s addiction at the time, and his inability to attach any details to his suggestion that he was not with the Complainant on the alleged offence dates, I am unable to believe the denial of the Accused on its own merit, or to place any reliance on it under the first stage of the analysis in R. v. W.D.

[60]        As set out in the authorities previously cited, it is difficult to consider the Accused’s evidence under the second part of the credibility analysis without looking at the evidence as a whole.  What remains is the Complainant’s evidence and that of the third parties who attended on her on September 14, 2017.

[61]        Counsel for the Accused argues that there are a number of reasons to reject the Complainant’s evidence.  The first is the absence of forensic evidence to support her claim that it was the Accused who assaulted her.  In my view it would be an error to reject her evidence of this basis for at least two reasons.  Firstly, section 274 of the Criminal Code has abolished the requirement of corroboration for sexual offences and the trier of fact is prohibited from considering the absence of corroborating evidence as a basis for refusal to enter a conviction.  Secondly, the absence of DNA testing is a neutral fact at best.  There are numerous other conclusions which can be drawn from the fact that no DNA was presented in evidence and it would be speculative to conclude that the absence of such evidence disproves what the Complainant is saying.

[62]        Counsel for the Accused pointed out a number of inconsistencies on collateral facts between what the Complainant said to police and what she said in her testimony at trial.  These include which side of her face that she was struck on and whether she was riding a bicycle or walking from McDonald’s to the hospital.  In the former case, the independent evidence clearly shows that she sustained recent injuries to her face.  In the latter case, she believes that she misspoke when giving her statement to police, and she is quite clear that she was walking, not riding, at the time.  It has been consistently held that collateral details are of lesser importance to victims of assaults, whose focus is primarily on the central aspects of the violation of their physical person.

[63]        Counsel also argues that her credibility should be seriously called into question, much as that of the Accused has been, because at this point in time, the Complainant was also active in her addiction.  In the case of the Complainant however, there are significant differences.  At this point in time, the independent evidence supports the Complainant in her claim that she was making efforts at recovery and was residing in a residential recovery home.  The independent witnesses who were with her at the hospital report that she did not appear to be intoxicated and that she gave appropriate answers to the questions put to her by the forensic nurse.  The report of the assault which she gave to the nurse is consistent with the one she gave to police and in her evidence.  The witness Kiah Ashley noted the odour of semen coming off of the Complainant when Ms. Ashley discovered the Complainant in a distraught condition at the hospital.  All of this independent evidence operates to reject the notion that all of what this complaint has testified to is somehow the concoction of a drug-addled mind.

[64]        Counsel argues that the Facebook messages demonstrate a motive to fabricate a false complaint, presumably in an effort to blackmail the Accused into resuming the relationship with the Complainant that he had abandoned.  This argument would have more force if the messages were clearer about this.  While they demonstrate an unhealthy desire on the part of the Complainant to hold on to a dysfunctional relationship, the messages which precede the alleged offence date make no such threats.  It is only the messages after the events which refer obliquely to the Accused having done something that he needs to make amends for, and which mention the Accused potentially being charged with confinement and attempted murder of the Complainant.  Although Defence Counsel did not expressly use the phrase, rejection of the Complainant’s evidence on this basis would be playing into the stereotype of the “woman scorned”, one of the “rape myths” which distort the proper assessment of credibility.

[65]        Counsel for the Accused also argues that the delay in reporting the offence gives reason to question the credibility of the Complainant.  Once again, reaching this conclusion would be giving in to another of the “rape myths”.  Delay in reporting is not unusual for victims of sexual assault, often due to fear or unfounded feelings of shame.  In this case, the Facebook messages suggest that the delay is also attributable to feelings of affection that the Complainant maintained for the Accused.  Most importantly however, the Complainant did tell the forensic nurse what had happened, so this is clearly not a case of recent invention.

[66]        The Accused’s Counsel argues that discrepancies in detail amount to different versions of what happened and this leads to the conclusion that the Complainant’s story is made up.  In fact the central and most important details of what the Complainant has said have remained consistent throughout in terms of where and when she was assaulted, how she was assaulted, and who assaulted her.

[67]        In the final analysis, I reject the evidence of the Accused, nor am I left in doubt by it for the reasons stated, namely that it is unreliable and is not credible when it is considered in the context of the evidence as a whole.  I accept the evidence of the Complainant on those points material to the elements of the offences charged, especially because of its external consistency.  It has remained constant on its central aspects throughout.  It is supported by the independent observations of the forensic nurse and by Kiah Ashley and it is clearly not the product of recent invention.

[68]        The Facebook messages tendered by the Accused, while not determinative on any issue, support the conclusion that the Complainant was angry with the Accused for a number of reasons, but after September 14, 2017, she was angry with him for something serious that he had done to her and for which she wanted an apology.  These messages demonstrate an initial reluctance on her part to report the offences because she believed that somewhere beneath the damage that addiction had inflicted on the Accused, there may still be a good person worth salvaging.  For that reason she was reluctant to report what he had done to her.

[69]        During her cross-examination, when she was accused of making up what had happened, the Complainant said of the Accused, “he knows what he has done.”  Having heard and considered all of the evidence in this case, I believe this as well.  I am satisfied beyond a reasonable doubt that the Crown has proven all of the elements of each of the offences that the Accused has been charged with and I find him guilty on all four counts on information 88306-1-K.

Dated at the City of Abbotsford in the Province of British Columbia this 5th day of November, 2018.

 

 

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(The Honourable Judge K. D. Skilnick)