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R. v. L.H., 2019 BCPC 89 (CanLII)

Date:
2019-04-18
File number:
9361-2-KC
Citation:
R. v. L.H., 2019 BCPC 89 (CanLII), <https://canlii.ca/t/j0738>, retrieved on 2024-03-28

Citation:

R. v. L.H.

 

2019 BCPC 89

Date:

20190418

File No:

9361-2-KC

Registry:

Burns Lake

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

L.H.

 

 

Publication Ban Pursuant to s. 486.4(2) of the Criminal Code

 

 

 

CORRIGENDA

TO THE

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE J.T. DOULIS

 

 

 

Counsel for the Crown:

Brennan, D.

Counsel for L.H.:

Greene, G.E.

Place of Hearing:

Burns Lake, B.C.

Date of Hearing:

November 13, 14, 2018, April 9, 10, 11, 2019

Date of Judgment:

April 18, 2019


Corrigenda were released by the Court on May 14, 2019 and June 26, 2023. The corrections have been made to the text and the Corrigenda are appended to this document.

INTRODUCTION

[1]         By way of Information 9361-2-KC, the accused L.H., is charged with assaulting his former spouse, T.H., both physically and sexually. The charge of sexual assault arises from an event that is alleged to have occurred on April 24, 2018, at the family home in [omitted for publication], BC. The charge of physical assault relates to an event that is alleged to have occurred on May 6, 2018 in [omitted for publication].

Issues:

[2]         The issues at trial are as follows:

Issue #1: Has the Crown proven beyond reasonable doubt that Ms. T.H. did not consent to being sexually touched on April 24, 2018?

Issue #2: If so, has the Crown proven that Mr. L.H. did not have an honest but mistaken belief in her consent?

Issue #3: Has the Crown proven beyond a reasonable doubt Mr. L.H. physically assaulted Ms. T.H. on May 6, 2018?

Issue #4: Is Mr. L.H. entitled to a defence of person or property?

[3]         This matter came before me for trial in Burns Lake Provincial Court on November 13 and 14, 2018, and on April 9, 10, and 11, 2019. I heard closing submissions of counsel on April 11, 2018, after which I reserved my decision. This is my decision and written Reasons for Judgment.

[4]         The Crown called as witnesses, the Complainant, Ms. T.H. and her sister, Ms. C.P. In its case, the Defence called the accused, Mr. L.H., his sister, Ms. C.D., his father, Mr. M.H., and his stepmother, Ms. K.H. I received into evidence the following exhibits:

Exhibit 1

Sketch made by Ms. T.H. during her direct evidence in the trial of this matter on November 13, 2018;

Exhibit 2

Text messages between Mr. L.H. and Ms. C.P. and Mr. L.H. and Ms. T.H. from and including April 30, 2018 to May 1, 2018;

Exhibit 3

Text messages between Ms. T.H. and Mr. L.H. on May 2 and 3, 2018;

Exhibit 4

Text messages between Ms. T.H. and Mr. L.H. on August 29, 2018;

Exhibit 5

Statement of Ms. T.H. given to Constable Dayton Procter on May 6, 2018, between 19:38 and 20:38 and on May 8, 2018;

Exhibit 6

Telus phone bill for the landline in the H.’s residence from April 20, 2018 to April 24, 2018;

Exhibit 7

Affidavit of Mr. L.H. sworn and filed in BC Supreme Court Action 18025, Smithers Registry on May 30, 2018;

Exhibit 8

Affidavit of Mr. L.H. sworn August 22, 2018 and filed in BC Provincial Court File 9361-1-K in support of his s. 276 application on September 20, 2018; and

Exhibit 9

Affidavit of Mr. L.H. sworn and filed in BC Supreme Court Action 18025, Smithers Registry on May 11, 2018.

[5]         Exhibits 7 and 9 are two affidavits Mr. L.H. filed in BC Supreme Court family law proceedings before the Crown had charged him under Information 9361-1-K on June 5, 2018. I am cognizant that in British Columbia, counsel are burdened with an implied undertaking not to use documents produced in a particular lawsuit for any purpose outside of the scope of that litigation. Neither Counsel argued this prohibition extended to affidavits filed in family law proceedings. Mr. L.H. never objected to the Crown’s using his family law affidavits nor did he invoke the protection of s. 5 of the Canada Evidence Act or s. 13 of the Canadian Charter of Rights and Freedoms. The Defence did not tender into evidence any of Ms. T.H.’s affidavits filed in the family law proceedings, although they were referenced in cross-examination.

Section 276 Application

[6]         In the course of this trial, I heard Mr. L.H.’s application under s. 276 of the Criminal Code on his right to adduce evidence that the Complainant, “has engaged in sexual activity other than the sexual activity that forms the subject matter of the charge.”

[7]         The stage one hearing of Mr. L.H.’s application proceeded in Smithers, on October 12, 2018. I rendered my written ruling on the application on October 24, 2018. On that date I dismissed Mr. L.H.’s application for a stage 2 hearing under s. 276(2) to adduce evidence the Complainant had an extra-marital affair with another man, namely Mr. B. ST., on the basis it failed to meet the threshold test of relevance and admissibility as set out in s. 276(2) and s. 276(3). I also dismissed Mr. L.H.’s application for a stage 2 hearing under s. 276(2) to adduce evidence of prior sexual activity involving waking the sleeping spouse through sexually touching. I concluded the evidence did not support a viable offence based on the Supreme Court of Canada’s decision in R. v. J.A. 2001 SCC 28 (CanLII), which held that a Complainant must be conscious throughout the sexual activity in question and possess an operating mind. Consent cannot be given ahead of time. The only relevant time frame for the consent is while the sexual touching is taking place. I also relied on the BC Court of Appeal decision in R. v. Mastronardi, 2014 BCCA 302 (CanLII), at para. 21, which held it is irrelevant that the accused and the Complainant were at other times involved in a consensual sexual relationship.

[8]         I did advance to a stage two hearing the issue as to the admissibility relationship evidence that during their marriage, specifically, evidence that Mr. L.H. and Ms. T.H. had a regular consensual sexual relationship. For that purpose, I heard evidence and argument in an in-camera voir dire on November 13, 2018, as to the nature and extent of the relationship evidence, if any, could be adduced at trial. At the end of the stage two hearing I ruled that Mr. L.H. could adduce the relationship evidence that during their marriage, he and Ms. T.H. had a regular consensual sexual relationship.

[9]         I did not allow Mr. L.H., at that time, to adduce through cross-examination or otherwise, evidence of specific past sexual activity with Ms. T.H. when she was awake because his initial application had not particularized such activity.

[10]      On November 14 2018, the second day of trial, Mr. L.H. renewed his application adduce evidence of his and Ms. T.H.’s rituals to invite sexual touching. His purpose was relevant to advancing a mistaken belief in consent defence. The evidence Mr. L.H. sought to adduce through direct evidence or cross examination is as follows:

a.            Prior to their separation, Mr. L.H. or Ms. T.H. would invite sexual activity through touching;

b.            Neither Mr. L.H. nor Ms. T.H. verbalized any agreement to have sexual contact before engaging in sexual activity;

c.            Mr. L.H. and Ms. T.H. have had sexual contact in the past while in bed even if one or the other had gone to bed with their clothes on;

d.            Mr. L.H. and Ms. T.H. engaged in sexual touching in the past while a child was sleeping in their bed; and

e.            On three or four occasions, Mr. L.H. and Ms. T.H. made up through sexual intercourse after an argument.

[11]      To expedite matters the Crown and Defence agreed to reopen the initial s. 276 application to permit Mr. L.H. to provide further particulars of the sexual touching practises in which he and Ms. T.H. engaged to invite the other to engage in sexual activity. The parties agreed that all the evidence on the October 12, 2018, s. 276 voir dire was still in play.

[12]      Mr. L.H. sought to provide an explanation of how the specific practices of inviting sexual touching impacted his state of mind at the time of the alleged incident.

[13]      I held Mr. L.H.’s application must be rejected unless the sexual activity he sought to adduce satisfied each of the requirements of the inclusionary exception set out in ss. 276(2) and (3). Section 276(2) makes all evidence of the Complainant’s prior sexual history presumptively inadmissible unless it is specific, relevant to an issue at trial, and of significant probative value that is not substantially outweighed by its prejudicial effect. It states:

In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[14]      Section 276(3) compels the application judge to consider several factors in determining admissibility, including:

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant’s personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

[15]      In order to be admissible under s. 276(3) (a) the evidence must give an air of reality to Mr. L.H.’s defence of an honest but mistaken belief in consent: R. v. L.S., 2017 ONCA 685 (CanLII), at para. 74. Otherwise it does not support s. 276(3)(c) “a reasonable prospect that the evidence will assist in arriving at a just determination in the case.” As I ruled previously, a defence which is based on a mistake of law is not viable: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 44.

[16]      Mr. L.H. argued his application supported his right to make a full answer and defence. If prohibited from adducing evidence of prior sexual activity, then the Court may wrongly infer from the circumstances his defence of mistaken belief in consent had no air of reality based on erroneous assumptions on how others may have acted in similar circumstances. Mr. L.H. and Ms. T.H. were a married couple who communicated their interest and willingness to engage in sexual activity in a non-verbal way, as married couples often do.

[17]      I found the evidence Mr. L.H. sought to admit would not significantly prejudice Ms. T.H. At the time of the offence, Mr. L.H. was her husband. They were a young couple and the biological parents of two children. Ms. T.H. testified they had a consensual sexual relationship throughout their marriage. Common sense dictates they must have communicated their interest or willingness to engage in sexual activity in some manner. Ms. T.H. discussed her and Mr. L.H.’s sexual history with Constable Procter in her May 6, 2018 police statement: Exhibit 5. In the circumstances, I could not find Mr. L.H.’s application would unduly prejudice Ms. T.H.’s personal dignity and right of privacy. Mr. L.H. was not seeking to adduce the minutiae of the Ms. T.H.’s sexual preferences.

[18]      I concluded there is a reasonable prospect that the evidence Mr. L.H. sought to adduce would assist in arriving at a just determination in the case. For example, without this information I may draw erroneous inferences from the fact that Ms. T.H. was fully clothed based on what I assume other people may wear to bed, or there would be no sexual contact whatsoever between spouses if a child was asleep nearby, or that there would be no sexual activity whatsoever after an argument.

[19]      I held Mr. L.H. could adduce evidence, either through cross-examination or direct evidence, of his and Ms. T.H.’s prior sexual activity only as it relates to the circumstances which occurred that evening, namely:

a.            after an argument, they would engage in sexual activity as a way to “make up”;

b.            they have had sexual activity even if one or the other had gone to bed fully clothed;

c.            they have had sexual contact of some sort even if a child was asleep nearby or in the bed;

d.            they did not communicate their interest in or willingness to engage in sexual activity by verbal discussion; and

e.            they did communicate their interest in or willingness to engage in sexual activity through touching.

[20]      At trial, Defence Counsel objected to the Crown’s use of Mr. L.H.’s affidavit filed at the s. 276 hearing, which I allowed. As I stated in my October 24, 2018, ruling at para. 30, Mr. L.H. is entitled to the constitutional protection against self-incrimination pursuant to s. 13 of the Charter. His testimony in the s. 276.2 hearing cannot be used to establish guilt; however, it can be used to challenge credibility: Darrach, para. 67.

Background Facts:

[21]      Mr. L.H. was born on [omitted for publication], and at the time of trial was 43 years old. He is the son of Mr. M.H. and the step-son of Ms. K.H., his father’s wife of 30 years.

[22]      Mr. L.H. now lives at [omitted for publication], which was the former matrimonial residence. Mr. L.H.’s first job is [omitted for publication]; however, he also [omitted for publication] on his acreage.

[23]      From 1998 to 2016, Mr. L.H. lived in Smithers, BC where he owned his own home.

[24]      Mr. L.H. and Ms. T.H. became intimate partners in September 2010. They married on August 8, 2015, and separated on April 24, 2018.

[25]      From 2010 to 2016, Mr. L.H. and Ms. T.H. resided in Smithers, BC. While living there, they spent time with Mr. L.H.’s sister, Ms. C.D., who also lived in Smithers with her husband and two children.

[26]      Mr. L.H. and Ms. T.H. are the biological parents of two children: M.M.H., born [omitted for publication], now seven years old and M.L.H., born [omitted for publication], now four. On April 23, 2018, M.M.H. was six years old and attended kindergarten at [omitted for publication] Elementary School.

[27]      Ms. T.H. was 28 at the time of trial. She has a mother and sister who reside at [omitted for publication].

[28]      Mr. L.H.’s father farmed for many years on [omitted for publication]. Mr. L.H. and Ms. T.H. were attracted to that lifestyle, so in the summer of 2016, they purchased a parcel of rural property at an auction on [omitted for publication]. The property included a modular home, which Mr. L.H. and Ms. T.H. moved onto acreage belonging to Mr. M.H.

[29]      In the summer of 2016, Mr. L.H. and Ms. T.H. moved with their two daughters to [omitted for publication], where they [omitted for publication]. Their property, [omitted for publication], is a [omitted for publication] drive from the [omitted for publication], which in turn is a [omitted for publication] drive south from [omitted for publication] on [omitted for publication], and a [omitted for publication]. The ferry sails from the north side of the lake to south side on the hour. The last sailing is at 11 p.m.

[30]      The H. residence at [omitted for publication] includes a master bedroom with a queen size bed where Mr. L.H. and Ms. T.H. slept. M.M.H. and M.L.H. shared a second bedroom, although M.L.H. often slept in her parent’s bed for part or all of the night. The front entrance to H. residence has a heavy double door made of metal. The inside door opens inwards and outside door opens outwards. There is a window in each door that line up when the doors are closed. The residence is a kilometre or so from where Mr. M.H. and Ms. K.H. reside.

Mr. L.H. and Ms. T.H.’s relationship

[31]      Although it lasted for nine years, Mr. L.H. and Ms. T.H.’s relationship gradually deteriorated. They each became profoundly unhappy for different reasons in different ways. Ms. T.H. became increasingly angry, aggressive, and verbally abusive; Mr. L.H. became depressed, unresponsive, and remote. Each accused the other of abuse. Ms. T.H. says her husband was abusive mentally, emotionally, and financially. She says Mr. L.H. was mentally abusive because he was condescending and made her feel worthless, fat, ugly, and stupid; he was emotionally abusive because he withheld sex and refused her any public displays of affection; he was financially abusive because he wouldn’t give her money for travel to visit her friends. When she showed an interest in sex Mr. L.H. pushed her away, claiming he was too tired from work or some other excuse. Ms. T.H. repeatedly threatened to leave the relationship, but never did until April 24, 2018.

[32]      Mr. L.H. says his wife abused him with her incessant criticism of him to his friends and family. Ms. C.D. said it came to the point where she had to make a rule that in her home, Ms. T.H. could not swear or put down Mr. L.H. Ms. C.D. did this for the sake of her own children. It was a rule she had to consistently reiterate.

[33]      Ms. T.H.’s temper frighten Mr. L.H. She screamed and swore at him, daily. She hit him, threw things and slammed doors so hard she broke them. At times he wanted to leave the relationship but remained for his children, so he did the best he could. Ms. T.H. admits she swore at Mr. L.H., but says he reciprocated. When asked if he ever witnessed Mr. L.H. hit Ms. T.H. or call her names, Mr. M.H. replied, “I have never done that in my life and neither did he.”

[34]      Over the years, Mr. L.H. consulted with his doctor in an effort understand and fix his relationship with Ms. T.H. His last consultation was a week or so prior to the events leading up to Ms. T.H. leaving the marriage. Mr. L.H. went to his doctor to find out why he had no energy and was feeling unwell and why he was so distant and unaffectionate. His doctor chalked up it up to Mr. L.H. being depressed and stressed out. Mr. L.H. conveyed this diagnosis to Ms. T.H.

The April 24, 2018 Incident

[35]      On April 23, 2018, Ms. T.H. when to Prince George, BC to look over some horses she was interested in buying. M.M.H. and M.L.H. stayed home with their father. While in Prince George on April 23, 2018, at around lunch time, Ms. T.H. spoke with Mr. L.H. on the telephone. She told Mr. L.H. she was meeting with Mr. B. ST., an equestrian who lived in [omitted for publication]. Mr. L.H. understood from this phone conversation Mr. B. ST. was someone with whom Ms. T.H. was interested in pursuing a relationship. Mr. L.H. became upset and asked her to come home. Ms. T.H. she said she would.

[36]      As the evening wore on and Ms. T.H. did not return, Mr. L.H. tried phoning her, Mr. B. ST. and Ms. T.H.’s mother to find out what was going on. Ms. T.H. had turned off her cell phone because she did not want to receive Mr. L.H.’s telephone calls or text messages.

[37]      Ms. T.H. returned home late in the evening of April 23, 2018. Exactly when this was is a moving target. Mr. L.H. believes she returned home around 10 or 11 o’clock. Ms. T.H. told Constable Procter on May 6, 2018, she left her residence at 4:00 a.m. and didn’t returned to 5:00 a.m. the next day, so she had been awake for 26 hours. At trial Ms. T.H. initially stated she returned home at midnight and then revised it to 1:00 a.m. on April 24, 2018. One thing on which Mr. L.H. and Ms. T.H. do agree is that the last ferry Ms. T.H. could have caught to return to home sailed at 11 p.m.

[38]      Ms. T.H. says when she arrived home, M.L.H. was up and awake. She says she took M.L.H. to bed with her at 5:00 a.m. and put her to sleep. Mr. L.H. says he put M.L.H. to sleep in the master bedroom between 8:30 and 9:00 p.m. and M.M.H. was asleep in her own bed. Mr. L.H. says neither child was awake when Ms. T.H. returned home, nor did they wake up before morning.

[39]      Ms. T.H. says that although she was tired from driving all day and despite the lateness of the hour, she tried to tidy the house because, “None of the chores had been done. The house was dirty. The dishes were dirty.” Ms. T.H. complained Mr. L.H. followed her around the house, harassing her, accusing her of having an affair, wanting particulars about the person she was with, wanting to know everything, how old he was and “just silly things.”

[40]      Ms. T.H. says throughout the course of the night she and Mr. L.H. argued back and forth. Mr. L.H. tried touching her several times and Ms. T.H. says she told him explicitly and frequently not to touch her. Ms. T.H. claims she was very firm, she enunciated her words properly and made it very clear she did not want Mr. L.H. to touch her - but he didn’t listen. Ms. T.H. told Constable Procter:

He was trying to hug and console me and make up. He wanted to make up. He wanted everything to be better.

He wasn’t touching me inappropriately then but because I didn’t want to be touched I considered it inappropriate.

He didn’t really say much… “don’t be like this and ….don’t be like that and don’t be silly … and other little things like that . . .

[41]      Mr. L.H. says when Ms. T.H. got home, he tried talking to her about her intentions with respect to Mr. B. ST. He didn’t actually think Ms. T.H. had an affair with Mr. B. ST., but he knew from their earlier telephone conversation she was interested in him. Mr. L.H. was worried about his marriage. Ms. T.H. refused to discuss the issue. When asked at trial if they were arguing, Mr. L.H. said:

There wasn’t any arguing going on. She wouldn’t talk to me. She wouldn’t acknowledge anything. I tried to get answers out of her; she wouldn’t give me answers. There was no yelling. The kids didn’t wake up that night.

[42]      Mr. L.H. was unequivocal that prior to the incident giving rise to the allegation of sexual assault, at no time did Ms. T.H. tell him not to touch her or words to that effect.

[43]      At some point, in Mr. L.H.’s presence, Ms. T.H. began texting Mr. B. ST. This upset Mr. L.H. who, at the time, was trying to talk to her about their relationship. To prevent Ms. T.H. from texting Mr. B. ST., Mr. L.H. disabled the satellite internet, which deactivated the cell phone. If she wanted to communicate with him or anyone else, Ms. T.H. would have to use the residential landline.

[44]      At another point, Mr. L.H. slammed Ms. T.H.’s cell phone down so hard, the screen cracked. Later, after Ms. T.H. told him it was broken, Mr. L.H. threw the cell phone in the garbage. Mr. L.H. also contacted Telus to cancel the cell phone contract, which was in his name, but Telus refused to allow him to do so.

[45]      Ms. T.H. claims Mr. L.H. wrestled the cell phone from her, crushing her hand in the process. She says Mr. L.H. smashed the cell phone several times over the counter then threw it in the garbage. When he went outside for a smoke, she retrieved it, found it still worked, so put in her pocket. Mr. L.H. admits slamming the cell phone on the counter hard enough to crack the screen, but denies that he took it from Ms. T.H., “crushing her hand.”

[46]      At about 12:41 a.m., Ms. T.H. used the landline to call her mother, Ms. C.P.T., who lived in [omitted for publication], BC. Ms. T.H. asked her mother to come and get her, but when her mother asked her what was wrong, Ms. T.H. did not want to talk and hung up. Ms. T.H. told Constable Procter this telephone call occurred at 4 or 5 or 6 o’clock in the morning. Ms. C.P., who was at her mother’s house at the time, believed it occurred between 1 and 2 a.m. The telephone bill entered into evidence as Exhibit 6 indicates this telephone call occurred at 12:38 or 12:41 a.m. on April 24, 2018.

[47]      Ms. T.H.’s argument/discussion with Mr. L.H. continued through the early morning hours and it was “close to 5:00 o’clock in the morning” on April 24, 2018, by the time Ms. T.H. went to bed. Ms. T.H. claims she took M.L.H. to bed and because she was so tired, M.L.H. fell asleep within five minutes. Mr. L.H. did not say when it was that Ms. T.H. went to bed, but was adamant it was long after M.L.H.

The sexual touching: Ms. T.H.’s version

[48]      Ms. T.H. went to bed fully clothed in a camouflage sweater with blue writing on it, blue jeans fastened with a belt and a belt buckle, and socks. Ms. T.H. says she “planned on leaving the next morning” and did not want to “undress and have to dress again in the morning.”

[49]      Ms. T.H. was not underneath the covers, although M.L.H. was. Mr. L.H. came into the bedroom sat at the foot of the bed and touched her leg. Ms. T.H. says she reiterated her directive that Mr. L.H. was not to touch her. Mr. L.H. said, “Fine, I’ll sleep on the couch,” left the bedroom and shut the door. Believing Mr. L.H. was going to sleep on the couch, Ms. T.H. laid down on the bed and fell asleep.

[50]      When Ms. T.H. went to sleep she was lying on her left side on top of the covers on the right hand side of the bed with her arm around M.L.H. When she woke a couple of hours later, Ms. T.H. was laying on her back with her legs open her pants undone. Mr. L.H. had reached over the sleeping M.L.H. and inserted his left hand down her pants and his fingers inside her vagina. Ms. T.H. testified:

And when I woke up I told him to stop. I said, "What do you think you're doing?" And he stopped.

And he said, "What do you mean? We do this all this time."

And I said, "No, it's different."

And he said, "No, it's not. You do this to me all the time."

And then I got up and did my pants back up and I said, "I could charge you with sexual assault."

And he said, "No, you can't. That's not what that was. I was just trying to make up," basically, was what he said.

[51]      Later Ms. T.H. described her reaction as follows:

I said, "What are you doing? Stop." He said, "What do you mean?"

. . . I said that, "You can't -- I can charge you with sexual assault. You need consent for things like that, and if I had been conscious, you know that I would have said no."

 . . . He said, "No, that's not what that was. We do this all the time. I was just trying to make up."

The sexual touching: Mr. L.H.’s version

[52]      Early in the morning of April 24, 2018, Ms. T.H. went to bed and Mr. L.H. remained sitting on the couch. After 20 to 30 minutes, Mr. L.H. went and joined Ms. T.H. in their bed in the master bedroom. Although the room was dark and Ms. T.H. was laying on the bed, Mr. L.H. knew she was awake. M.L.H. was asleep on a pillow at the head of the bed. Mr. L.H. lay down beside Ms. T.H. M.L.H. was not between them. Mr. L.H. touched Ms. T.H.’s hip and she moved. He put his hand down the front of her pants and touched her vagina. He had his hand on her for two seconds when Ms. T.H. sat upright and said, “Don’t touch me. That is sexual assault and I can have you charged.” Ms. T.H. got up and went to the couch.

[53]      When asked about his intentions in touching Ms. T.H. sexually on April 24, 2018, Mr. L.H. said:

. . . see where it went; see if she wanted to do anything; see if she wanted to get frisky or not. If not, I knew our relationship was done. She made it clear not to touch her, I never touched her again that night and that was the end of our relationship.

[54]      Mr. L.H. steadfastly denies Ms. T.H. told him not to touch her any time before he had done so sexually in the bedroom. She had never done so in the history of their relationship, in fact the opposite is true. When asked if he was surprised by Ms. T.H. telling him not to touch her, Mr. L.H. testified he was “shocked.” He said:

That what she was telling me to do for years prior to that, touch her more, do this, do that

. . .

. . . The last three or four years before that she threatened to leave me every week because I wouldn’t touch her enough; I wouldn’t sleep with her enough. Then all of a sudden she comes up with this. You can ask any of my friends. She put me down that I wouldn’t touch her enough, I wouldn’t sleep with her, I wouldn’t do this, I wasn’t affectionate. I touch her, I am charged with this. I don’t understand anymore.

[55]      Mr. L.H. denies telling Ms. T.H. he would sleep on the couch; he denies digitally penetrating her; he denies he “reached over M.L.H.” to touch her.

[56]      When asked at trial if he had touched Ms. T.H. in the past in the manner he described, Mr. L.H. said that one had to touch the other to get something going “or nothing would ever come of it."

After the sexual touching

[57]      After the sexual touching Ms. T.H. got up and went to the couch in the living room. Mr. L.H. followed her and sat at the end of the couch. He touched her ankle as a comforting gesture in an effort to placate Ms. T.H. He still wanted to engage her in a discussion about their relationship and make things right. Ms. T.H. got up and went into the girls’ bedroom where M.M.H. was sleeping, but when Mr. L.H. followed her, Ms. T.H. returned to the master bedroom, locked the door, went to bed and went to sleep.

[58]      At some point in the early morning hours, after the sexual touching incident, Mr. L.H. became angry and packed some of the Ms. T.H.’s clothes in a bag and tossed them outside.

[59]      Mr. L.H. slept on the couch, although not for long, given the hour he and Ms. T.H. went to bed. Mr. L.H. got up again at 6:30 a.m., woke M.M.H. and organized her for school. He unlocked the bedroom door so M.M.H. could say goodbye to her mother and have Ms. T.H. brush her hair. Mr. L.H. drove M.M.H. to her bus stop at around 7:30 a.m., which was only half a kilometre away.

[60]      Mr. L.H. returned home and Ms. T.H. got up around 9 a.m. He again attempted to engage Ms. T.H. in a discussion about their relationship. At first Ms. T.H. refused to talk about the issue, but then told Mr. L.H. she wanted to pursue a relationship with Mr. B. ST. Mr. L.H. told her if that is what she wanted, she should leave, which she did, on foot.

[61]      Ms. T.H. claims Mr. L.H. forced her out of the house on the morning of April 24, 2018, because she had to either “leave or fight” and she was not going to traumatize her youngest daughter by standing her ground and “getting beat up.”

[62]      Mr. L.H. offered to drive Ms. T.H. to her mother’s house, which she refused. He offered her his work truck which she also refused because of its faulty tire. Ms. T.H. says its tire would have been flat within a couple of kilometres and there was no spare. Mr. L.H. acknowledged the tire did lose pressure and needed to be pumped up every few days, which he did with his onsite compressor. Still, the truck would have been fine to take Ms. T.H. to town.

[63]      When Ms. T.H. started walking towards [omitted for publication], Mr. L.H. called Ms. C.P. T. to let her know her daughter had left walking and asked Ms. C.PT. to pick her up. Mr. L.H.’s cousin and neighbour, Ms. P.C., gave Ms. T.H. a lift to [omitted for publication]. Ms. C.P. drove from in [omitted for publication] and picked up Ms. T.H. walking on [omitted for publication] west of [omitted for publication].

[64]      This marked the end of Mr. L.H. and Ms. T.H.’s nine-year relationship as a couple. Ms. T.H. moved in with her parents and her sister in [omitted for publication]. Mr. L.H. remained in the family home in [omitted for publication] with M.M.H. and M.L.H. Mr. L.H. and Ms. T.H. never reconciled.

Ms. T.H.’s evidence of her relationship with Mr. L.H.

[65]      Ms. T.H. acknowledged she and Mr. L.H. had a troubled relationship. Although they remained a couple, no arguments were concluded or resolved or even talked about. Mr. L.H. did not fight with Ms. T.H., he just refused to talk to her about their issues. He would “pretend the problem was gone and go about his normal routine of pretending everything was okay, and no problems were solved.” Because Mr. L.H. was unable or unwilling to communicate with her, Ms. T.H. would get mad and then Mr. L.H. would leave. Ms. T.H. threatened to leave and Mr. L.H. promised things would improve. She relented and stayed, but within a day or two, his behaviour reverted to how it had been previously.

[66]      Ms. T.H. admitted to Constable Procter that Mr. L.H. had never hit her, but she felt emotionally abused because of his unwillingness to show her he loved her. She said:

. . . he didn’t even want me sitting next to him on the couch, he didn’t want me touching him, he didn’t want anything from me, affection, love or anything and I was just tired of it and I told him. I’ve being telling him for years, “I’m not happy. It’s not okay, I’m not okay.” I was angry all the time, angry and miserable and sad, and I’m not like that and I told him . . . “I’m going to leave if you don’t change or if you don’t try.” . . . And he didn’t want to fix anything. . .

[67]      Ms. T.H. acknowledged there were times when either she or Mr. L.H. went to bed before the other. If she or Mr. L.H. wanted to have sex, one of the ways they would approach the other was through touching. This included kissing or hugging but never talking. Ms. T.H. stated:

There were no conversations held before regarding consent, talking during, or even after. We didn't maintain conversations during sex, or before.

[68]      When Defence Counsel put to Ms. T.H. the proposition that Mr. L.H. always stopped touching her if she told him to stop, Ms. T.H. stated, “L.H. never came on to me for sex, ever.”

[69]      After Ms. T.H. told Constable Procter the details of the sexual assault, the officer asked if Mr. L.H. had ever forced sex on her, Ms. T.H. said, “No . . . He has withheld sex from me.” When asked if anything like the sexual assault happened before, Ms. T.H. replied, “Usually it's him saying no to me, as demented as that sounds.”

[70]      With reference to the sexual touching, Constable Procter asked Ms. T.H. what she thought Mr. L.H. meant by his comment, “What do you mean? We do this all this time.” Ms. T.H. explained:

Well, like, make-up sex, like, you know, when you get in a fight, or whatever, with your wife or girlfriend, and make-up sex, whenever. That's what he meant. Like, we've argued before and had sex afterwards, and then everything was okay.

. . .

Or like in the night, in the middle of the night, if he's -- you know how that works right? It's a mutual thing. You roll over and you want sex and your partner wants sex, so you have sex.

. . .

That's what he meant, or it's happened before, where I wanted sex and he didn't, so he pushed me away and I stopped, that’s what he meant.

[71]      When asked in cross-examination if she knew Mr. L.H. was interested in communicating with her about make-up sex, Ms. T.H. responded, “I think that was the idea.” When asked what she thought Mr. L.H. meant on April 24, 2018, when he said, “we do this all the time, I was just trying to make up,” Ms. T.H. replied:

I think he meant that all I care about in our relationship is sex, so for him, to fix it for me, was to come onto me in some misguided attempt at fixing all the things he had done wrong up to that point.

[72]      When asked what Mr. L.H. had done wrong, Ms. T.H. said:

He accused me of having an affair, which I did not have. He had been mentally abusive, emotionally abusive, financially abusive. There's a lot of places I could start, if you want to go back that far.

[73]      Ms. T.H. told Constable Procter because of Mr. L.H.’s unwillingness to fix their relationship, she became more verbally abusive and quick to anger. Mr. L.H. did not change, but she became angrier, and although not physically violent, she has thrown stuff at him.

Legal proceedings

[74]      Ms. T.H. did not return to the family home and Mr. L.H. never heard from her for a week. On April 30, 2018, Mr. L.H. retained legal counsel to deal with their separation. On the same day, Mr. L.H. advised Ms. T.H. that he had contacted a lawyer and they began communicating via text messaging about parenting time with M.M.H. and M.L.H. using Ms. C.P.’s cell phone.

[75]      From April 30, 2018 to May 3, 2018, Mr. L.H. exchanged the following text messages with Ms. T.H. and Ms. C.P.:

Date

Writer

Recipient

Message

Exhibit 2

April 30, 2018

8:50 a.m.

Mr. L.H.

Ms. C.P.

Could you let T.H. know that me and the girl[s] will be in town today.

April 30, 2018

11:37 a.m.

Mr. L.H.

Ms. C.P.

Does T.H. want to see the girls

 

Ms. C.P.

Mr. L.H.

I don’t know where she is and she’s probably sitting somewhere by herself trying to figure out what she needs to do.

 

Mr. L.H.

Ms. C.P.

I wish that was true but I know where she is just hurts

 

Ms. C.P.

Mr. L.H.

She probably won’t be able to see the girls. She’s even vague with me. I just want her to be happy.

April 30, 2018

3:20 p.m.

Mr. L.H.

Ms. C.P.

You can tell T.H. when she gets back not to contact me [or] the girls if she has any questions she can contact my lawyer [G.E.] Greene

 

Ms. C.P.

Mr. L.H.

Yes, and L.H. if you need any help with the girls I will do as much as I can. If you need a babysitter or to drop them off for a weekend. I love those little girls.

May 1, 2018

8:21 a.m.

Ms. T.H.

Mr. L.H.

It’s T.H. Is how it’s gonna go L.H. because if it is I am going to the police station right now to file a police report for sexual assault. You gonna threaten me with my girls and lawyers and shit your life is gonna fucking suck so fucking fast and you will NEVER see those girls again.

 

Mr. L.H.

Ms. T.H.

Wasn’t [threatening]

 

Ms. T.H.

Mr. L.H.

🖕

 

Mr. L.H.

Ms. T.H.

I just wanted you to talk to the lawyer because I was working on a deal

 

Ms. T.H.

Mr. L.H.

Expect a phone call from RCMP

Fuck your life is so fucking over buddy

 

Mr. L.H.

Ms. T.H.

K

You [k]now I did nothing wrong.

 

Mr. L.H.

Ms. T.H.

I know

Did you have fun with your [friend]

I didn’t want full [custody]

 

Ms. T.H.

Mr. L.H.

No matter how many times you tell yourself you had a right to sexually assault me because I was your wife and you wanted to make up you are wrong. What you did was wrong and if I was conscious, I would have said no.

You know it

 

Mr. L.H.

Ms. T.H.

You never said no

 

Ms. T.H.

Mr. L.H.

I wasn’t conscious

 

Ms. T.H.

Mr. L.H.

You know if I could have I would have said no

 

Mr. L.H.

Ms. T.H.

I stopped as [soon] as you said no

 

Ms. T.H.

Mr. L.H.

Ha ha

 

Ms. T.H.

Mr. L.H.

If you are gonna stop being a stupid asshole I won’t report you

 

Ms. T.H.

Mr. L.H.

I know you thing I’m a big slut and ran off and fucked some guy but that just proves how selfish and shallow you are and how little you think of me

 

Mr. L.H.

Ms. T.H.

Talk to me just wanted to talk about the deal

 

Ms. T.H.

Mr. L.H.

I’m filing a police report

 

Ms. T.H.

Mr. L.H.

I can’t afford a lawyer so this is what has to happen because you want to fight.

 

Mr. L.H.

Ms. T.H.

Hello

 

Ms. T.H.

Mr. L.H.

No, lawyers are involved now so I have to do this.

 

Mr. L.H.

Ms. T.H.

Yes there is

 

Ms. T.H.

Mr. L.H.

I didn’t want to have to fuck your entire life up because I do care about you and I didn’t want full custody of the girls but it will have to happen now I guess. Because of you.

 

Mr. L.H.

Ms. T.H.

[He’s] for both of us

 

Ms. T.H.

Mr. L.H.

I’m not sharing a lawyer with you

 

Ms. T.H.

Mr. L.H.

I’m not a stupid bitch even though you think I am

 

Mr. L.H.

Ms. T.H.

I just trying to get it done without spending all our [money]

 

Ms. T.H.

Mr. L.H.

Well quit being a stupid cocksucker and I won’t file a police report

 

Ms. T.H.

Mr. L.H.

You CANNOT keep my kids from me

 

Mr. L.H.

Ms. T.H.

I don’t want to

 

Ms. T.H.

Mr. L.H.

You are

 

Mr. L.H.

Ms. T.H.

No I’m not you haven’t [been] around

 

Ms. T.H.

Mr. L.H.

I wanted them for the weekend and you said no

Exhibit 3

May 2, 2018

4:59 p.m.

Ms. T.H.

Mr. L.H.

I’m going to the police station

 

Ms. T.H.

Mr. L.H.

Call me back or I’m leaving right now and this whole business is going to court.

 

Ms. T.H.

Mr. L.H.

And I will start telling your family what you did to me.

 

Ms. T.H.

Mr. L.H.

I’ll give you another 13 minutes then I’m leaving mom and dads and going to the police to file a report for sexual assault.

 

Ms. T.H.

Mr. L.H.

Call me back or pick up the phone.

May 3, 2018

7:59 a.m.

Ms. T.H.

Mr. L.H.

I have [Ms. C.P.’s] phone today

 

Mr. L.H.

Ms. T.H.

K

[76]      On May 2, 2018, Mr. L.H., through his legal counsel, commenced a family law proceeding in the BC Supreme Court, Smithers Registry, file 18025. On May 4, 2018, Ms. T.H. was served with Mr. L.H.’s Notice of Family Claim and a draft separation agreement. That same day, Ms. T.H. retained Mr. Hudson as her legal counsel and filed a Response in the family law proceedings.

May 6, 2018 incident

[77]      Mr. L.H. brought M.M.H. and M.L.H. to Ms. H.’s residence in [omitted for publication] so she could have parenting time with the girls on the weekend of May 4, 2018. Ms. T.H. agreed to return the girls to Mr. L.H.’s care on May 6, 2018, so M.M.H. could attend school the following day.

[78]      Mr. L.H. says on May 5, 2018, Ms. T.H. called him demanding he reimburse her $560 she paid to her lawyer for legal fees or she would not return M.M.H. and M.L.H. to his care. He agreed and Ms. T.H. returned the girls.

[79]      On May 6, 2018, Ms. T.H. borrowed a Ford F-350 pickup from her brother’s girlfriend. Ms. T.H. and Ms. C.P. drove the girls from in [omitted for publication] to Mr. H.’s residence in [omitted for publication]. They arrived at his residence somewhere between 5 and 6 p.m.

[80]      Although Mr. L.H. had texted her to come alone, Ms. T.H. maintained she “didn’t feel safe doing that” so she made sure her sister came along with her. In her May 6, 2018 police statement, Ms. T.H. told Constable Procter she believed Mr. L.H. wanted her to come alone because:

he was going to try and “mind game” her into staying by telling her she loved the lifestyle out there and use it against her; and

he would not have any witness to what he was going do, which was take the kids from her and kick her out.

[81]      When she arrived at his residence, Mr. L.H. was outside picking up sticks and making brush piles near the end of his driveway. Because M.M.H. had told her one of the cows died, Ms. T.H. rolled down her window and yelled at Mr. L.H., “Why did you let one of the cows die?”

[82]      Mr. L.H. became concerned at Ms. T.H.’s confrontational behaviour and asked his father and step-mother to come to his home. They arrived within five minutes of his call. Ms. C.P. testified Mr. M.H. and Ms. K.H. arrived at the H. residence at about the same time as she and Ms. T.H. did. Ms. T.H. testified that about 25 minutes after they arrived, she saw Mr. M.H. and Ms. K.H. “flooring it up the driveway.”

[83]      Ms. T.H. and Ms. C.P. went into house. Ms. T.H. began packing her clothes in garbage bags and loading them into the pickup. Mr. L.H. assisted Ms. T.H. by packing up her boots and delivering them to the pickup. He did not object to Ms. T.H. taking all of her clothing and personal belongings, but did protest when she began packing all the clothes hangers.

[84]      After she had finished packing her clothes Ms. T.H. took a rifle and placed it in the pickup. Mr. L.H. did not want her to take the rifle and went and retrieved it. He says it cost $1,500 and he had purchased it with his Possession and Acquisition Licence (“PAL”). When Ms. T.H. discovered he had removed the rifle from the pickup she became angry and went to demand its return. She walked from the pickup to the front door with Ms. C.P. following behind her.

[85]      L.H. met Ms. T.H. at the front door and blocked her entry with his body. Ms. T.H. began screaming and swearing at him. She told him she wanted to get the rest of her things and threatened to take the girls. M.M.H. and M.L.H., who were in the house and witnessing the altercation, became upset and started crying. Mr. L.H. told Ms. T.H. he didn’t want her back in the house and asked her to leave. Mr. L.H. continued to stand in the doorway blocking her entry into the house. Ms. T.H. wedged her foot in the door to prevent him from closing it. Ms. T.H. tried to force her way inside by pushing her shoulder against Mr. L.H.’s chest. He demanded she leave or he would call the police.

[86]      Ms. T.H. testified she put her foot in the door because she didn’t want Mr. L.H. to shut it because she “had every right to be there, as he did” and she didn’t want him to accuse her of abandoning her children again.

[87]      When Ms. T.H. persisted in trying to force her way inside, Mr. L.H. called his sister, Ms. C.D. He told her that Ms. T.H. was at his home, out-of-control and he needed help. Mr. L.H. said he called Ms. C.D. because she was married to a police officer and he believed she would know what to do. Also, he hoped that by calling Ms. C.D. in her presence, Ms. T.H. would calm down and simply leave on her own accord and he would not have to engage the police. This did not happen, so Mr. L.H. asked Ms. C.D. to call the police.

[88]      While she was on the telephone with Mr. L.H., Ms. C.D. heard Ms. T.H. screaming in the background, “This is my house.” She also heard the children crying and Mr. L.H. tell Ms. T.H. he was calling the police. When Ms. T.H. did not leave, Mr. L.H. asked Ms. C.D. to call the police. Ms. C.D. hung up and dialled 911. She told the dispatcher her brother had his ex-wife at his home, she was out of control and he needed help. Ms. C.D. provided the police with Mr. L.H.’s address and directions to his house. She told the police she did not believe L.H. or Ms. T.H. had been drinking because it is not part of their lifestyle. She also told the police she was concerned because Ms. T.H. was out-of-control and there were guns in the residence and Ms. T.H. knew how to use them.

[89]      Ms. C.P., who was standing behind Ms. T.H., told her:

 . . we were scaring the kids, that he's not worth it, that we shouldn't be fighting, and to just -- that we should just go.

[90]      Finally, Mr. L.H. had enough. He didn’t think the girls needed to witness this tirade and pushed Ms. T.H. off the threshold, closed and locked the door. Ms. T.H. did not fall and was not injured. Ms. T.H. says Mr. L.H. pushed her with two hands as hard as he could and she stumbled backward about six steps. Ms. C.P. confirms Ms. T.H.’s version of events:

T.H. tried to get in and asked for her stuff, and L.H. said, you can’t come in and the girls were screaming, and L.H.’s father was right behind him in the hall. L.H.’s step-mom K.H. was right behind him on the staircase.

. . .

So the door was more than ¾ way shut

[T.H.’s] foot and leg was in it, her foot was underneath the door. . .

[L.H.] squared, hands on shoulders pushed her out really hard. Her foot kind of got caught underneath and she kinda fell backwards a bit but was able to catch herself.

And also, right by the front door was “super icy” and “super slippery.” And she could have definitely hurt herself.

[91]      When reminded in cross-examination that it was May 6 and there was no snow or ice on the ground, Ms. C.P. stated, it was “muddy or icy or whatever.”

[92]      Mr. L.H. is adamant that he was holding the door open with one hand and pushed Ms. T.H. on the shoulder with the other just hard enough to move her off the threshold so he could close the door. Mr. M.H. and Ms. K.H. confirm Mr. L.H.’s description of the incident. They say as soon as Mr. L.H. put his hand on her, Ms. T.H. started screaming, “you assaulted me, you assaulted me.” Ms. T.H. then ran around the exterior of the house screaming and threatening to break its windows with rocks.

[93]      Ms. T.H. claims she refused to leave when Mr. L.H. asked her to because “the first time I left he accused me of abandoning my children and I wasn’t going to let him accuse me of that again, and I wanted to continue taking the rest of my personal belongings.” After she had been locked out Ms. T.H. says she could see the girls in the window, “screaming and crying to come with me, and he wouldn’t let them out of the house.”

[94]      Ms. T.H. says she went back to the pickup and Ms. C.P. told her she needed to call the police and file an assault report, because that is what it was and it wasn’t okay and he can’t get away with it. Ms. C.P. testified she suggested Ms. T.H. call the police to find out if the police were actually coming and if so, whether they should wait for their arrival.

[95]      Ms. T.H. went to Mr. M.H. and Ms. K.H.’s house because she knew she would be able to use the phone because they would not be there to refuse her. Ms. T.H. called the police and told them, “My ex-husband won’t let me see my kids. He kicked me out of the house and I need to file assault reports.”

[96]      Ms. C.P. remained outside the H. residence while Ms. T.H. went to call the police. Mr. M.H. went outside and spoke with Ms. C.P. L.H. and Ms. K.H. stayed inside the house and watched movies with the girls.

[97]      Ms. T.H. succeeded in intercepting the police before they reached the H. residence. She sat in Constable Procter’s police vehicle and gave the officer a lengthy audio-recorded statement between 7:38 and 8:30 p.m.: see Exhibit 5. Ms. T.H. complained Mr. L.H. had physically and sexually assaulted her.

[98]      In addition to her complaints of assault and sexual assault, Ms. T.H. told the police Mr. L.H. had firearms in his residence and his PAL had expired; however, hers was still valid.

[99]      The RCMP detachment is in Burns Lake. Given the hour, the distance, the road washouts and detours, and their interview with Ms. T.H., the police did not arrive at the H. residence until very late. Ms. T.H. says she “escorted” the police to the H. residence. By that time Mr. M.H. and Ms. K.H. had left. When they first arrived Mr. L.H. believed the police had come in response to his complaint. Instead, they arrested Mr. L.H. for physically and sexually assaulting Ms. T.H. and seized all of the firearms in the residence.

[100]   While the police held Mr. L.H. outside, they allowed Ms. T.H. to go back into the home and retrieve more of her belongings. As all the firearms had been seized, Ms. T.H. collected only a few small items and left the residence. With Mr. L.H.’s permission she fuelled the pickup she was driving from his onsite fuel tank and then left.

[101]   The police did not take Mr. L.H. into custody. They released him on a Promise to Appear and an Undertaking to a Police Officer that he have no contact with Ms. T.H., “directly or indirectly.” These restrictions persist to this day and have made it difficult for Mr. L.H. and Ms. T.H. to arrange parenting time with their daughters.

[102]   The police left M.M.H. and M.L.H. in Mr. L.H.’s care.

[103]   When they arrived, the police never asked Mr. L.H. for his side of the story. When Mr. L.H. told the police officers they should contact his parents, who lived just down the road, the officers said they did not want to talk to them. The police never did contact or interview Mr. M.H. or Ms. K.H. even though they were eye witnesses to the alleged assault. Nevertheless, on May 6, 2018, Mr. M.H. made notes of the incident as an aide-memoire.

[104]   On June 5, 2018, Justice Weatherill ordered M.M.H. and M.L.H.’s primary residence would be with Mr. L.H. while school was in session. Also on June 5, 2018, the Crown formerly charged Mr. L.H. under Information 9351-1-K with assaulting and sexual assaulting Ms. T.H.

[105]   Mr. L.H. and Ms. T.H. continued to clash over parenting time as apparent in the following thread of text messages sent and received on August 29, 2018:

Date

Writer

Recipient

Message

Exhibit 3

August 29, 2018

7:33 p.m.

Ms. T.H.

Mr. L.H.

Call me now or I will press charges

 

Ms. T.H.

Mr. L.H.

You have no right to withhold information from me regarding my children

 

Mr. L.H.

Ms. T.H.

What now

 

Ms. T.H.

Mr. L.H.

Hey don’t worry about it. I’m calling MCFD and getting this dealt with now.

 

Mr. L.H.

Ms. T.H.

What mcfd

 

Ms. T.H.

Mr. L.H.

Ministry of child and family development. The people you call when you are worried about your children. If you don’t start communicating with me about the girls nicely and not just your terms I will have them taken away from you because you are unstable, have a strange woman around my children, and are withholding information regarding them, I don’t hear from them when you have them so I don’t know if they are okay. The ministry will take them from you and place them in my custody. I want some communication as we are allowed to text about the kids or I will have to do this. Start being cooperative please. Don’t make this difficult, I don’t want to fight anymore.

 

Ms. T.H.

Mr. L.H.

They are my kids too and I have a right in the decisions made about them, where they attend school etc. I plan on sharing that information with you also. You don’t get to decide things without me. That’s not how it works.

 

Ms. T.H.

Mr. L.H.

If you aren’t going to be nice and cooperate then neither am I

 

Ms. T.H.

Mr. L.H.

I’m giving you this one last chance to be nice, like I have been so far. Call me right now so we can discuss or I’m going to call MCFD.

 

Mr. L.H.

Ms. T.H.

I told you [where] [they are] going

 

Ms. T.H.

Mr. L.H.

No you did not

[106]   Ms. T.H. explained she sent the August 29, 2018 text messages upon Mr. L.H. disclosing he had a girlfriend. Ms. T.H. said she “assumed that he had [her] around the children. I did not know otherwise.”

Assessing Reliability and Credibility

[107]   In order to determine liability, I must assess what evidence I find reliable and credible. As Justice Cory commented in R. v. S. (R.D.), 1997 CanLII 324 (SCC), assessing the credibility of a witness is more of an ‘art than a science’.

[108]   Reliability and credibility are not the same. Reliability involves the accuracy of the witness’s testimony. It engages consideration of the witness’ ability to observe, recall, and recount: R. v. H.C., 2009 ONCA 56 (CanLII), at para. 41. Credibility, on the other hand, concerns the veracity of a witness. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes.

[109]   Assessing credibility engages a number of factors, including: (a) the plausibility of the witness’s evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda; and (f) the witness’ demeanour while testifying.

[110]   It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is credible may nevertheless be unreliable: H.C. at para. 41 citing R. v. Morrissey, 1995 CanLII 3498 (ON CA).

[111]   In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord different weight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

Reliability of the Evidence

[112]   All of the witnesses who testified in these proceedings had the capacity to observe, recall, and recount the events to which they testified. None were cognitively disabled or impaired by drugs or alcohol or any other substances.

The Crown Witnesses

Assessing Ms. T.H.’s credibility

(a)  the plausibility of the Ms. T.H.’s evidence

[113]   Ms. T.H.’s evidence as to when she got home from Prince George on April 23/24, 2018, is internally and externally inconsistent. She is, however, consistent as to when she went to bed. At trial, she says because of her and Mr. L.H. arguing back and forth, it was close to 5:00 o’clock in the morning of April 24, 2018, before she was able to go to bed. After she had been “asleep for a couple hours, at the most” she woke up to Mr. L.H. sexually assaulting her. She got up and went to sleep on the couch. When Mr. L.H. followed her to the couch, Ms. T.H. returned to the master bedroom, shut and locked the door and went to sleep. She woke at around 7:00 and could hear Mr. L.H. getting M.M.H. ready for school. If she had been asleep a couple of hours before the sexual touching, it would have been around 7 a.m. when the incident occurred. This accords with Ms. T.H.’s May 6, 2018 police statement wherein Ms. T.H. says she left for Prince George at 4 a.m. (albeit she said on April 27, 2018), and returned home at 5:00 a.m. and the sexual assault occurred after she and Mr. L.H. argued for a couple of hours.

[114]   Although Ms. T.H.’s changed her evidence at trial to say she returned home at 1:00 a.m., she still maintains the incident of sexual touching occurred after she went to bed at 5:00 a.m. and had slept “for a couple hours, at the most.” This suggests the sexual touching incident would have occurred during the time when Mr. L.H. was getting M.M.H. ready for school or Ms. T.H. was brushing M.M.H.’s hair before Mr. L.H. took her to the bus stop. I find this implausible and conclude Ms. T.H. concocted this narrative as an attempt to corroborate her claim she was asleep at the time of the sexual touching.

[115]   It is not implausible, but I find unlikely that M.L.H., then three years old, stayed up with her mother until 5 a.m. before going to bed.

[116]   Ms. T.H. claimed six times she tried forcing her way back into the H. residence on the evening of May 6, 2018, because she did not want Mr. L.H. accusing her abandoning the girls. Ms. T.H. was returning the girls to their father’s care on Sunday evening as agreed because M.M.H. had school the following day. It is nonsensical Mr. L.H. would accuse Ms. T.H. of abandoning the girls by returning them to his residence for his parenting time. It is obvious Ms. T.H. wanted to get back into the house to recover the rifle Mr. L.H. had removed from the pickup truck. This is evidenced by her following testimony:

Q.        As soon as you took the gun out of the truck, as soon as Mr. L.H. stood up to you, that's when you had your tantrum; isn't that correct, ma'am?

A.        Mr. L.H. took the gun out of my truck that he had previously stated was mine. That's fine. You can have it. I did not sneak it out of the house.

We agreed that it was mine and I could take it, and he went and took it and I went back into the house to confront him about and say, "Give it back." I did not intend for things to get traumatic the way they did, and I did not have a temper tantrum.

[117]   I find Ms. T.H.’s claim she did not wish to be accused of abandoning her children a melodramatic re-envisioning of her conduct at the H. residence on the evening of May 6, 2018.

(b)  independent supporting or contradicting Ms. T.H.’s evidence

[118]   Ms. T.H.’s version of events is sometimes confirmed and sometimes contradicted by other witnesses.

[119]   Mr. L.H. confirms he touched Ms. T.H. sexually in the early hours of April 24, 2018, although he steadfastly denies he digitally penetrated her or touched her when she was asleep or that he had to reach over M.L.H. to touch her or that Ms. T.H. told him not to touch her before the incident.

[120]   Ms. T.H.’s testimony that Mr. L.H. smashed her cell phone repeatedly over the counter is contradicted in part by Mr. L.H.’s evidence that he “slammed it on the counter” and the fact the cell phone still worked.

[121]   As to the events on May 6, 2018, Ms. T.H. denied she screamed or yelled or cursed or threw a temper tantrum when Mr. L.H. refused to allow her to re-enter the house. Her evidence is contradicted by all other witnesses present at the time, except Ms. C.P. who seems to have forgotten whether Ms. T.H. was screaming or cursing. Even so, Ms. C.P. testified she asked Mr. L.H. and Ms. T.H. why it had to get so heated and they “[couldn’t] try and get what T.H. wanted without causing too much drama.”

[122]   Ms. T.H. testified she saw Mr. M.H. and Ms. K.H. “flooring up the driveway” 25 minutes after she arrived. Her evidence is contradicted by all other witnesses, including Ms. C.P. who said Mr. M.H. and Ms. K.H. arrived at the H. residence about the same time as she and Ms. T.H.

(c)  the external consistency of Ms. T.H.’s evidence

[123]   In her May 6, 2018 police statement, Ms. T.H. states she left to Prince George at 4 a.m. on April 27, 2018, and returned home the following day at 5:00 a.m. and called her mother upon her return. Besides the wrong date, Ms. T.H.’s evidence means it would have taken her over five hours to drive from the terminal as the last ferry sailing across the lake was at 11:00 p.m. At trial, Ms. T.H. testified she did not get home until 1:00 a.m., which was 20 minutes after she called her mother from the residential landline.

[124]   In her direct evidence, Ms. T.H. referenced her affidavit in the family court proceedings stating she put to bed her oldest daughter, M.M.H., who was still awake when Ms. T.H. returned home. At trial, Ms. T.H. said it was M.L.H. she put to bed, albeit not until 5 a.m. Although Ms. T.H. insists she took M.L.H. to bed with her, she did not indicate what M.L.H. was doing until 5 a.m. while she and Mr. L.H. argued back and forth.

(d)  the internal consistency of Ms. T.H.’s evidence

[125]   When asked by Constable Procter if Mr. L.H. had ever threaten to kill or harm her or any other person or pet, Ms. T.H. responded, “He’s threatened to kill himself.” Later in her statement when asked whether Mr. L.H. discussed or threatened or attempted suicide, Ms. T.H. said:

Yeah. He, well he hasn’t said I will kill myself but he has hinted strongly that he would if I were to leave.

[126]   When Constable Procter asked what Mr. L.H. said, Ms. T.H. responded:

I couldn’t live without you. I don’t know what I would do without you, I don’t know how long I would last without you, he has never threated to kill himself.

[127]   Ms. T.H. testified in her direct examination that from 1 a.m. to about 5 a.m. on April 24, 2018, she and Mr. L.H. argued back and forth. In her cross-examination she said she refused to talk to Mr. L.H. or engage him in argument, although she did say, “No.” Ms. T.H. then conceded that when she first returned home she did talk to him, “but he insisted on arguing and there was a point when I didn’t want to talk anymore.”

[128]   In her cross-examination, Ms. T.H. claimed Mr. L.H. forcibly removed her from the house on the morning of April 24, 2018. When Defence Counsel asked Ms. T.H. why she didn’t call the police, she replied she didn’t have a phone because Mr. L.H. smashed it. When Counsel reminded Ms. T.H. of her evidence that she retrieved the phone from the garbage and it worked, she stated:

A.        He took it from me again. It must have fallen out of my pocket, 'cause I did not have it with me, and he would not let me take it with me.

Q.        So, now your evidence is that . . . he broke the phone, put it in the garbage. You took it out, behind his back; correct?

A.        Yes.

Q.        Do I have it right?

A.        Yes.

Q.        Okay. And some -- at some stage he got it again?

A.        He must have, yes. I don't remember him taking it from me.

This is but one example of Ms. T.H.’s penchant for accusing Mr. L.H. in default.

[129]   Another instance of Ms. T.H.’s inconsistency is her evidence in direct examination she went to bed on April 24, 2018, fully clothed because she planned to leave in the morning. In cross-examination, Ms. T.H. said she left the home because she had been sexually assaulted, an incident she alleged occurred after she had gone to bed fully clothed.

(e)  the “balance” of Ms. T.H.’s evidence

[130]   Overall, I found Ms. T.H.’s evidence rife with hyperbole. This unbalanced perspective is undoubtedly wrought by Ms. T.H.’s lack of insight into her own contribution to her conflicts with Mr. L.H. It is particularly manifest in Ms. T.H.’s depiction of the events which unfolded on May 6, 2018, where she states in cross-examination:

Q.        Mr. L.H. was the one who brought peace to the situation by first telling you to get out of the house and then pushing you out the door. Isn't that was occurred here?

A.        No. Mr. L.H. insisted on creating a traumatic event for my children by blockading me out the door instead of letting me to collect my things. He then proceeded to call the RCMP and file a police report. And he then proceeded to shove me out the door and lock it, and slam it.

And my children were screaming and crying at the window and he would not let them come see me.

Q.        The children were screaming and crying because you were having a tantrum; isn't that correct?

A.        The children were screaming and crying 'cause they had just witnessed their father physically assault their mother and shove her out the front door and lock it.

. . .

Q.        You knew Mr. L.H. wanted to get you out of the house to prevent any more disturbance to the kids; correct?

A.       No. Mr. L.H. wanted me out of the house because he didn't want me in the house. He did not state an intention, he just did not want me in the house any longer. He didn't want me to collect my things. He didn't want me there anymore.

[131]   Earlier in her evidence Ms. T.H. agreed that Mr. L.H. physically assaulted her with a push. She stated:

Q.        Okay. Well, I put it to you that, in fact, he used one hand he did not strike you in any fashion. He just pushed you?

A.        I -- no, he did not strike me, but pushing is still physical assault.

Q.        But you agree he pushed you?

A.        Shoved, pushed, whichever word you'd like to use. It means the same thing.

In the preceding passage, however, Ms. T.H. refers to being both physically assaulted and shoved as they were two different incidents.

[132]   Ms. T.H.’s proclivity for embellishment seriously undermines her credibility. For example, when asked in cross-examination if her tone on May 6, 2018, became loud and abusive, Ms. T.H. responded:

I was there. I was crying. I was upset. My children were being withheld from me, locked in a house they didn't want to be in.

[133]   When confronted with the fact she was at the H. residence to return the children to Mr. L.H. for his parenting time, Ms. T.H. replied:

That is what occurred, but circumstantially, when things got elevated the circumstances changed and I did not want to leave my children with him when he removed me from the house.

[134]   Other instances of Ms. T.H.’s attempts to cast Mr. L.H. in an unfavourable light is her repeated suggestion he was cruel or indifferent to the welfare of their animals. This is apparent from her asking Mr. L.H. when she first encountered him on May 6, 2018, why he let one of the cows die. It is apparent from her following exchange with Defence counsel about the welfare of her horses during the late summer of 2018 when the south side was ravaged by wild fires:

Q.        Some of your pets at the house include horses; correct?

A.        Past tense. They're no longer there.

Q.        They're not at the house; correct?

A.        Correct.

Q.        You made arrangements to get those, didn't you?

A.        Yes, I went out there and picked them up myself.

Q.        And when did you do that?

A.        I don't remember the exact day, but it was late at night. There was a forest fire and if I didn't go get them they would have burned to death.

Q.        Okay. Why would they have burned to death?

A.        Because he doesn't care about them. Never has, never will.

Q.        Again, this is his fault; correct?

A.        No. As far as I know he did not start the fire, so, no, that was not his fault.

When asked why she brought a bottle-fed lamb with her to Prince George, Ms. T.H. stated:

If I left it at the house it would not have been fed. I had to bring it with me to make sure it didn't die.

[135]   Another instance where I find Ms. T.H. embellished her evidence was when asked in direct evidence why on May 6, 2018, she decided to take a rifle. She states:

I enjoy hunting, so I have two of my own guns. And I had decided that I wanted to take one of them because I felt that if I didn't take all my stuff at that point . . . he was either going to destroy it or dispose of it, or get rid of it somehow. So, I took my one gun and put it in the truck.

[136]   It makes no sense Mr. L.H. was going to destroy “all of her stuff" when they were in the process of negotiating a separation agreement as to the division of family assets. Ms. T.H. had been in [omitted for publication] from April 24 to May 6, 2018, and there is no allegation Mr. L.H. had destroyed any of her belongings in her absence. Also, according to Ms. T.H., Mr. L.H. consented to her fuelling her pickup from his onsite fuel tank after his arrest on May 6, 2018. In my view, this is not the act of a vindictive man.

Motive or Personal Agenda

[137]   Mr. L.H. bears no burden to show Ms. T.H. has a motive to fabricate or exaggerate evidence. In this case, however, Ms. T.H.’s motive to fabricate or exaggerate is glaringly obvious: she wanted Mr. L.H. to resolve their family law issues on terms she found acceptable.

[138]   Ms. T.H.’s threats to file police or MCFD complaints against Mr. L.H. is an archetypal “the end justifies the means” deployment strategy. Her antipathy or indifference to its impact is exemplified in her response to Defence Counsel about her texting Mr. L.H. even though he was on bail conditions to have no contact with her as the result of her police complaints:

Q.        During this time, ever since these proceedings started, this criminal matter, Mr. L.H. has been on a no-contact bail condition with you; correct?

A.        Correct.

Q.        And you have continued to text to him during that time; correct?

A.        Correct. I have no conditions against me.

Q.        And in this text [Exhibit 4] you demanded that he call you correct?

A.        Yes. At that point he had refused to communicate with me regarding school . . .

[139]   When Defence Counsel asked Ms. T.H. if she continued to threaten Mr. L.H. in text, she responded with what I consider a masterpiece of understatement:

I was upset and I may have texted some things that were inappropriate, but I don't believe I threatened him.

[140]   In my view Ms. T.H.’s characterization of her text messages as a declaration of intent as opposed to a threat is a distinction without a difference.

[141]   Ms. T.H. made good on her threat to report Mr. L.H. to the police for sexual assault when on May 6, 2018, he refused to allow her to take a rifle she wanted from the family home. She made good on her threat to report Mr. L.H. to MCFD for being unstable and “having a stranger around the children” because he would not agree to the children going to school other than in GP which would frustrate her proposition for equal parenting time. It is apparent Ms. T.H. chose to invoke the powers of the state in order to leverage her position in the family law proceedings. When this was not effective, she threatened to remove M.M.H. from her school in GP forcing Mr. L.H. to go to court and obtain an order from Justice Sharma prohibiting her from doing so.

[142]   I accept Ms. T.H.’s animus toward Mr. L.H. was likely fuelled by her and Mr. L.H.’s inability to resolve issues of parenting time in an amicable or timely manner.

(f)   Ms. T.H.’s demeanour while testifying

[143]   Assessing credibility through demeanour is highly subjective and therefore perilous. With that in mind, and although not determinative of the issue, I find Ms. T.H.’s demeanour a relevant consideration in assessing her credibility. The manner in which Ms. T.H. testified did little to inspire my confidence in the veracity of her evidence. At various times she was argumentative, combative, or glib. For example, when Defence Counsel asked about an affidavit she filed in the Supreme Court family law proceedings in May of 2018, Ms. T.H. responded:

A.        No, that's not correct. Terrance Hudson filed an affidavit on my behalf.

Q.        So, you had nothing to do with that?

A.        I did not file it, no, but I made the affidavit, yes.

. . .

Q.        This is a copy of the application that you filed?

A.        That is a copy of an application Terrance Hudson filed on my behalf.

[144]   When confronted with her affidavit in which she stated she put M.M.H. to bed around 1:15 a.m. T.H. refused to concede she made a mistake. She testified in cross-examination:

A.        I realize I put that in my affidavit, but upon further thought, I cannot remember if she was in bed or not, and I believe that L.H. was right when he said that she was already asleep

Q.        So, that was a mistake?

A.        That was me not remembering exactly, but that's what I thought at the time, yes.

Q.        But that affidavit was signed on May 15, 2018?

A.        At that time I believed it to be the truth, yes.

Q.        Okay. And that was just over two weeks after the event occurred?

A.        Yes

[145]   Another example of Ms. T.H.’s argumentative demeanour arises when Defence Counsel asked her about a statement she made in her affidavit that she called her mother at 4:00 a.m. He showed her the telephone bill for the residential landline indicating she called her mother at 12:38 and 12:41 a.m. Ms. T.H. responded:

A.        Whatever the statement says. It was also in my name and I did not authorize phone statements to be pulled from my phone bill.

. . .

Q.        But to answer my question, you do agree that you phoned your mother about 1:00 a.m. and not 4:00 a.m., as you said in your affidavit; correct?

A.        Correct, I guess, if that's what the phone statement says. I don't understand why a couple hours is -- it seems irrelevant to me. It happened.

Conclusion on Ms. T.H.’s credibility

[146]   For the reasons set out above, I do not find Ms. T.H. a credible witness. Accordingly, I have approached her evidence with caution.

Assessing Ms. C.P.’s credibility

(a)  Plausibility of Ms. C.P.’s evidence

[147]   I find some aspects of Ms. C.P.’s evidence unlikely or implausible, including:

a.            although it is not implausible, I question whether it was “super icy” at the H.’s residence at 5 or 6 p.m. on May 6, 2018;

b.            she could not hear Mr. L.H. tell her sister to leave or he would call the police;

c.            she was unable to hear or recall Ms. T.H. screaming and cursing at Mr. L.H., even though she was able to hear Ms. T.H. tell Mr. M.H., “Did L.H. tell you he sexually assaulted me?”; and

d.            she remained at the H. residence while Ms. T.H. went to call the police because she “didn’t want L.H. to try and take the girls somewhere.” Ms. T.H. and Ms. C.P. had returned the girls to Mr. L.H.’s care because it “was his time with them.” Mr. L.H. was trying to get Ms. T.H. and Ms. C.P. to leave; he was not trying to leave himself. In light of the events which unfolded that evening, I find Ms. C.P. was left behind to engage the police should they arrive in Ms. T.H.’s absence.

(b)  independent supporting or contradicting Ms. C.P.’s evidence

[148]   Ms. C.P.’s evidence as to the manner in which Mr. L.H. pushed Ms. T.H. off the threshold is confirmed by Ms. T.H., but contradicted by Mr. L.H., Mr. M.H., and Ms. K.H.

[149]   Ms. C.P.’s evidence the H. residence was “very dirty” was contradicted by Ms. K.H. who said Mr. L.H.’s mother and sister had just finished a spring cleaning for Mr. L.H.

[150]   Ms. C.P. denied that Mr. L.H. was holding open the outside door with one hand. When Defence Counsel suggested to her that in order for the outside door to have been open while Mr. L.H. and Ms. T.H. were “squared off” at the inside doorway, Mr. L.H. had to be holding the outside door open. Ms. C.P. responded, “or the door could have been fastened open.” Ms. C.P. admitted that she was “not sure” if that was the case but continued to deny that Mr. L.H. was holding the outside door open in any event.

(c)  the external consistency of Ms. C.P.’s evidence

[151]   If Ms. C.P. gave a statement to the police, it was not referred to in cross-examination.

(d)  the internal consistency of Ms. C.P.’s evidence

[152]   In her direct examination, Ms. C.P. said she asked Mr. L.H. and Ms. T.H., “why it had got so heated and maybe [they] could try and get what T.H. wanted to get and get out of there without causing too much drama.” She described Mr. L.H. and Ms. T.H. as “arguing back and forth a bit, and L.H. got tired of hearing it… and …. threatened to call the cops on us.” Ms. C.P. also described Mr. L.H. and Ms. T.H.’s proximity to each other and how they were positioned, even though the door was ¾ shut. Yet in cross-examination, Ms. C.P. denied hearing or remember hearing Ms. T.H. arguing, screaming, or cursing.

[153]   When asked when the children began screaming, Ms. C.P. said:

I wasn’t paying a lot of attention. There was a lot of commotion going on So, I did not pay attention to when the exact screaming started

(e)  the balance of Ms. C.P.’s evidence

[154]   It was apparent to me that Ms. C.P. was an advocate for her sister, understandably so. Still, this coloured her evidence and to some extent undermines its veracity. The following are some examples Ms. C.P.’s evidence which I find tailored to disparage Mr. L.H.:

Although not relevant to the matters before this Court, Ms. C.P., like Ms. T.H., took pains to mention the H. residence was “very dirty.” When asked how it was dirty, Ms. C.P. stated:

Pissed in diapers; pissed on blankets all over the floor and dirty clothes everywhere. The whole floor was covered, there were toys strewn everywhere - wall to wall.

Ms. C.P. testified, the “girls were being held upstairs and they were crying for T.H. and I.” This statement suggests Mr. L.H. was holding his daughters hostage and refusing to allow them to go with Ms. T.H. for her parenting time.

When Mr. L.H. brought a bag of Ms. T.H.’s boots to load them in the pickup, Ms. C.P. suggests he did so in a manner to frighten her:

When I was facing into the pickup and L.H. kind of came up behind me and threw it in box of truck and it made a really loud banging noise and at that point I was scared. I didn’t know what the noise was or where it came from.

When asked what Ms. T.H. was doing when she picked her up at noon on May 6, 2018, Ms. C.P. said “she was walking in a light jacket and sneakers” that were “not seasonably suitable. She was cold.” Ms. T.H. testified that she took a sweater with her.

(f)   Ms. C.P.’s demeanor while testifying

[155]   Ms. C.P.’s demeanour while testifying was concerning. When asked in direct examination to describe what took place at the H. residence on May 6, 2018, Ms. C.P. was able to give a lengthy unbroken narrative from the time she and Ms. T.H. arrived at the H. residence until they left after the police had come and gone. Yet, in cross-examination, she frequently asked Defence Counsel to repeat, rephrase, clarify, or particularize his questions.

Conclusion on Ms. C.P.’s credibility

[156]   I find in some instances Ms. C.P. tailored her evidence in order to cast Ms. T.H. in most sympathetic light, and Mr. L.H. in least. Accordingly, there are some aspects of her evidence I have approached with caution.

Defence witnesses

Assessing the credibility of Mr. L.H.

(a)  the plausibility of Mr. L.H.’s evidence

[157]   Although Mr. L.H. came across as somewhat oblivious to the circumstances in which he found himself on April 24, 2018, given his dysfunctional relationship with Ms. T.H., I do not find there was anything inherently implausible about his evidence.

(b)  any independent supporting or contradicting Mr. L.H.’s evidence

[158]    Mr. L.H.’s evidence is contradicted by Ms. T.H. as follows:

a.            Ms. T.H. claims she repeatedly told Mr. L.H., “Don’t touch me.” Mr. L.H. says the first time Ms. T.H. told him not to touch her was immediately after the sexual touching incident;

b.            Ms. T.H. said she was asleep for “two hours at the most” at the time of the sexual touching. Mr. L.H. says he joined her shortly after she went to bed and she was not asleep;

c.            Ms. T.H. said Mr. L.H. had to reach over M.L.H. to touch her. Mr. L.H. said that was untrue; M.L.H. was asleep above them on a pillow and was not between him and Ms. T.H.;

d.            Ms. T.H. claims Mr. L.H. said he would sleep on the couch, which Mr. L.H. denies; and

e.            Ms. T.H. says she woke up to Mr. L.H. digitally penetrated her. Mr. L.H. says that did not happen; he had his hand on her for two seconds when Ms. T.H. sat upright and told him not to touch her and said she could charge him with sexual assault.

[159]   Mr. L.H.’s claim he was more confused than angry at Ms. T.H. on April 24, 2018, is contradicted by his admission he slammed her cell phone on the counter, disconnected the internet, packed some of her clothes in a bag and threw them outside.

[160]   Mr. L.H.’s evidence as to the May 6, 2018 assault is corroborated in whole or in part by Ms. C.D. and Mr. M.H. and Ms. K.H. His description of the force he applied to remove Ms. T.H. from the doorway is contradicted by Ms. T.H. and Ms. C.P.

(c) the external consistency of Mr. L.H.’s evidence

[161]   In his May 11, 2018 affidavit (Exhibit 9), Mr. L.H. says he gave a statement to the police. This statement was never adduced into evidence as part of the Crown’s case or for cross-examination. Instead, the Crown cross-examined Mr. L.H. on affidavits he signed in support of his s. 276 application and the Supreme Court family law proceedings.

[162]   In his May 30, 2018 affidavit (Exhibit 7), Mr. L.H. said Ms. T.H. did not say to him immediately after he touched her words to the effect it was “a sexual assault and she could charge him.” In his affidavit he said that she uttered those words the next day. Mr. L.H. vacillated back and forth which version was true, settling on his evidence at trial that Ms. T.H. said these words immediately after she sat upright. As Mr. L.H. pointed out, given the time this incident occurred, the “next day” was actually only a few hours away, if that.

[163]   In his testimony at trial, Mr. L.H. maintained he and Ms. T.H. were not arguing in the early morning of April 24, 2018, because she wouldn’t talk to him. In his affidavits, Mr. L.H. states they were arguing. I accept his explanation what he meant was there was no “heated argument.” He was pressing his wife for answers about her intentions with respect to Mr. B. ST. and their marriage. Ms. T.H. refused to give any or even talk about the issue. This argument, if it can be characterized as such, was verbal on Mr. L.H.’s part and non-verbal on Ms. T.H.’s. As Mr. L.H. describes, it was an argument of one.

[164]   I have some concerns about using affidavits crafted by a lawyer in a family law proceeding to impeach the credibility of an accused in a criminal proceeding. An accused charged with offences against his spouse is in a difficult position. In the criminal proceedings he is entitled to the presumption of innocence and the right to silence. However, when the incident giving rise to criminal charges traverses into family law proceedings, an accused who exercises his right to silence risks losing meaningful parenting time with his children.

[165]   In this case, it is clear that Mr. L.H. did not draft the affidavits which have been entered as exhibits in these proceedings. The style and syntax of the affidavits are profoundly different than Mr. L.H.’s oral testimony or text messages. Unlike an audio-recorded statement to a police officer, Mr. L.H.’s affidavits speak not in his voice, but his lawyer’s. In this case, Mr. L.H.’s affidavit were prepared quickly for the purposes of securing his parenting time with his daughters. They were not drafted for the purposes of defending these criminal proceedings. Moreover, I suspect that Mr. L.H., like many affiants, did not read the affidavit carefully before signing it. He certainly didn’t wordsmith it. This is apparent in the prosecutor’s cross-examination of why Mr. L.H. stated in his May 11, 2018 affidavit (Exhibit 9) he was taken by surprise when Ms. T.H. left the marriage. Whereas the prosecutor was focusing on the events immediately precipitating Ms. T.H.’s departure, Mr. L.H., in his May 11, 2018 affidavit, was commenting to the state of their relationship the preceding year.

[166]   I accept that Mr. L.H. did not know of Ms. T.H.’s intention to leave the marriage, if she had any at that time she went to bed in the early morning of April 24, 2018. I accept Mr. L.H. believed their relationship was improving over what it had been in previous years. His evidence is confirmed by the fact Ms. T.H. had just returned from looking over horses she was interested in buying in Prince George. If it was her intent to leave the marriage, I find it unlikely she would spend the last day of their cohabitation looking into buying a new horse.

[167]   The Crown argues that paragraph 7 of Mr. L.H.’s affidavit sworn September 25, 2018, in support of his s. 276 application (Exhibit 8) suggests Ms. T.H. was asleep at the time of the sexual touching. It states:

I anticipate my own evidence is going to be that T.H. woke me up in the same fashion, touching me sexually, on many occasions in the past. It was one of the ways we liked to sexually please each other

[168]   Mr. L.H. explained this was not an admission, but a response to Ms. T.H.’s claim she was asleep. In his May 30, 2018 affidavit (Exhibit 7), Mr. L.H. describes waking up to Ms. T.H. rubbing his penis and him saying no he was too tired. Ms. T.H. was angry for him for not wanting sex. No charges ensued against Ms. T.H. Mr. L.H. contends Ms. T.H.’s allegations of sexual assault serve an ulterior purpose. He points to Ms. T.H. using the term “unconscious” in her text messages rather than asleep or sleeping. When the prosecutor asked Mr. L.H. how he knew Ms. T.H. was awake when he touched her, he responded:

I didn’t go to bed that long after. I know T.H. I know she wasn’t sleeping I know for a fact she was waiting for me to do that. When she sat up [saying] I am charging you. No normal person sits up and says I am charging you with sexual assault because you touched me. She knew she was going to do that. She was waiting for me to touch her.

[169]   The prosecutor challenged Mr. L.H. on his response to Ms. T.H.’s text message, “What you did was wrong and if I was conscious, I would have said no.” Mr. L.H. replied, “You never said no.” When asked why he didn’t confront Ms. T.H. with the fact she wasn’t unconscious, Mr. L.H. responded:

Why was she unconscious? She was conscious. I stopped when she said no. I just know I did nothing wrong. I did not know I had to put all the legal stuff in the [text message]

. . .

I guess I should of. I didn’t know it was a big thing I should have added all in that I guess.

[170]   In the circumstances, Mr. L.H. cannot be faulted for failing to put forth a comprehensive defence to Ms. T.H.’s accusations via text messaging. He was attempting to resolve parenting issues, not inflame them. This is not a situation where the Court should take an adverse inference from his failure to fully respond to Ms. T.H.’s allegations. His response was consistent with his communication style, which was generally fairly Spartan.

(d)  the internal consistency of Mr. L.H.’s evidence

[171]   Mr. L.H.’s evidence was reasonably internally consistent, except for his confusion as to why his May 30, 2018 affidavit [Exhibit 7] stated that Ms. T.H. didn’t mention sexual assault until the next day.

(e)  the “balance” of Mr. L.H.’s evidence

[172]   Mr. L.H. believes Ms. T.H.’s allegations are contrived. Given Ms. T.H. repeated threats to file police or child protection complaints against him if he did not do her bidding, I cannot find he is being unfair. Defence Counsel does not allege Ms. T.H. is a new age Mata Hari who lured Mr. L.H. into her lair, but rather someone who seized an opportunity to improve her bargaining position by threating to make a police complaint.

[173]   In terms of motive to lie, it goes without saying that an accused person has an interest in criminal proceeding against him. Nevertheless, Mr. L.H. is presumed innocent until proven guilty, considering his interest in the outcome of this trial is unhelpful. As Justice Charron states in R. v. Laboucan 2010 SCC 12 (CanLII) (at para. 11):

[11]      The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.

[174]   As the Alberta Court of Appeal noted in R. v. Fleig, 2014 ABCA 97 (CanLII) at para. 28:

[28]      The motive of any witness to give evidence is always a relevant consideration. It is not error to consider it. But motive to lie is, like demeanour of a witness, a factor that itself should be considered in light of other factors and in light of the way the case unfolds in evidence and argument. Context is everything: R v Laboucan, 2010 SCC 12 (CanLII) at paras 18 to 22, [2010] 1 SCR 397. Taken entirely by itself, the motive of a person on trial for murder to give false evidence to extricate himself from his legal predicament could be matched with a similar motive to give true evidence if doing so would extricate him from his legal predicament. By itself it is usually a neutral consideration, although that may not always be the case.

(f)   Mr. L.H.’s demeanour while testifying

[175]   Mr. L.H. testified that he was not an angry man. He says he has only yelled at Ms. T.H. twice in his life. I accept that to be the case. Certainly, his responses to Ms. T.H.’s emails were minimalistic, sometimes to a fault. When asked the tenor of Mr. L.H.’s post-separation telephone calls, Ms. T.H. said, “He was always very short and brisk and void of emotion.” Similarly, although he was “bugged” by the fact the police arrested him on May 6, 2018, when it was he who called them, his response was simply to say to them, “I wouldn’t call you guys anymore, it didn’t do me any good.”

[176]   Clearly, Mr. L.H. was upset that he was being prosecuted for sexually assaulting Ms. T.H. for her allegation he touched her sexually when she was asleep. Firstly, he says she wasn’t asleep, and secondly he found it unfair that the Crown did not prosecute Ms. T.H. for touching him sexually while he was sleeping. Nevertheless, Mr. L.H. did not present as enraged or incensed, but more confused, hurt, and frustrated.

[177]   Having observed Mr. L.H. testify in court and reading his text messages to Ms. T.H., I conclude he is not a person with much verbal agility. At times he struggles to articulate his thoughts. He was clearly embarrassed at having to testify to intimate matters, such as the sexual touching or his medical issues and his evidence on those matters was sparse. He rarely exaggerated or embellished his evidence. In fact, more often than not, Mr. L.H.’s evidence was understated.

[178]   In conclusion, there is nothing about Mr. L.H.’s demeanour while testifying that undermined his credibility.

Conclusion on Mr. L.H.’s credibility

[179]   Generally, I found Mr. L.H. a credible witness, although on April 24, 2018, I believe he was more angry than confused. Still, where they differ, I prefer Mr. L.H.’s evidence over that of Ms. T.H.

Assessing the credibility of the other defence witnesses

[180]   I found Ms. C.D. and Mr. M.H. credible witnesses and I accept their evidence as a truthful their account of the events to which they were testifying.

[181]   Although generally I found Ms. K.H. a credible witness, I do not accept her evidence that Mr. L.H. barely touched Ms. T.H. and she jumped back on her own accord. Mr. L.H. admits he pushed his wife with sufficient force to move her out of the doorway to close the door. Ms. K.H. believes Ms. T.H. orchestrated the events of May 6, 2018, to support an assault charge. The Defence does not subscribe to this Machiavellian view of Ms. T.H.’s intentions that night. Mr. Greene submits Ms. T.H. was simply opportunistic. She used the fact Mr. L.H. pushed her out of the doorway to base a complaint to the police, who arrested him for assault without speaking to other eye witnesses.

Assessing reasonable doubt

[182]   The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crown to prove the essential elements of the offences charged beyond a reasonable doubt. Although the standard is not absolute certainty, proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144.

[183]   In cases where there is little or no corroborating evidence or highly conflicting evidence, the Court can be left with irreconcilable versions of the same events. A judge cannot reach a verdict by simply deciding which conflicting version of events he or she prefers. A criminal trial is not a “credibility contest.” It is a trial to determine whether the Crown has proved the accused’s guilt of the offence charged beyond a reasonable doubt.

[184]   In R. v. W. (D), 1991 CanLII 93 (SCC), the Supreme Court of Canada provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the concept of reasonable doubt to issues of credibility. Justice David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v. W(D) and Credibility Assessment, explains the W(D) test as follows:

a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;

c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

Legal Framework: Sexual Assault

Elements of the offence of sexual assault

[185]   Section 271of the Code sets out the offence of sexual assault. In R. v. Ewanchuk, 1999 CanLII 711 (SCC), the Supreme Court set out the five essential elements of the offence of sexual assault has follows:

a. three criminal act (actus reus) elements:

i. touching

ii. the sexual nature of the contact

iii. the absence of consent

b. two criminal intent (mens rea) elements:

i. intention to touch

ii. knowledge, recklessness or wilful blindness about lack of consent

Criminal Act: Element 1: Touching

[186]   A sexual assault can be any form of assault as that term is defined the s. 265 of the Criminal Code, which includes:

a.            direct or indirect application of force (touching);

b.            acts or gestures that attempt or threaten to apply force; and

c.            accosting or impeding another person while armed with a weapon.

[187]   The Supreme Court of Canada in R v Ewanchuk, 1999 CanLII 711 (SCC), at paras.23-25, held that “force” in the context of a sexual assault includes any touching, no matter the degree of strength or power applied.

[188]   At its most basic, Mr. L.H. and Ms. T.H. agree in the early morning hours of April 24, 2018, while they lay in bed, Mr. L.H. slipped his hands down Ms. T.H.’s pants and touched her vagina. In my view, this act would satisfy the definition of assault under s. 265(a) or (b).

Criminal Act: Element 2: Sexual Nature

[189]   For a sexual assault, the contact must be of a “sexual nature.” In R. v. Chase, 1987 CanLII 23 (SCC), at para. 11, McIntyre J. held that sexual assault is “committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.” The sexual nature of the contact is determined objectively, on the standard of the reasonable observer, and involves a consideration of the following factors:

a.            the body part touched;

b.            the nature of the touching;

c.            the surrounding situation or circumstances;

d.            the accompanying words or gestures, including threats; and

e.            the intent or purpose behind the touching, including sexual gratification.

[190]   Mr. Greene argues the intent of the touching was for the purpose of consolation and reconciliation. Mr. L.H., however, testified while they were both laying on the bed, in the dark, he slipped hands down the front of Ms. T.H.’s pants and touched her vagina with the intention to see, “where it went”, “if she wanted to do anything”, or “if she wanted to get frisky or not.”

[191]   I accept Mr. L.H. touching Ms. T.H. in this fashion was in an attempt to reconcile. Nevertheless, I still find it was touching of a sexual nature.

Criminal Act: Element 3: Absence of Consent

[192]   Sexual assault requires an absence of consent, meaning “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1 of the Criminal Code. Consent for the purposes of s. 273.1 means the consent to the sexual activity in question. The complainant must subjectively agree to the specific physical act, its sexual nature and the identity of the partner.

[193]   The law of consent to sexual activity embraces the following principles:

a.            Sexual assault requires an absence of consent which the Crown must prove beyond a reasonable doubt: R. v. J.A., 2011 SCC 28 (CanLII)para. 94;

b.            Consent means “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1 of the Criminal Code: J.A. para. 34;

c.            As a fundamental principle, a person is entitled to refuse sexual contact: J.A., at para. 1. Thus, consent may be revoked at any time: s 273.1(2)(e): J.A. paras. 33-34;

d.            Consent does not exist in the abstract. The complainant must subjectively agree to the specific physical act, its sexual nature and the identity of the partner: J.A., at paras. 3, 31, 34, 43, and 66 R. v. Hutchinson, 2014 SCC 19 (CanLII), and Ewanchuk, para. 26;

e.            Consent cannot be inferred from silence, passivity or ambiguity, in other words, there is no implied consent to sexual activity: Ewanchuk, paras. 25, 28 and 31;

f.            Consent cannot be implied from the circumstances or the relationship between the accused and the complainant: J.A. at para 47. It is irrelevant that the accused and the complainant were at other times involved in a consensual sexual relationship: R. v. Mastronardi, 2014 BCCA 302 (CanLII), para. 21. In R v Barton, 2017 ABCA 216 (CanLII), at footnote 57, the Alberta Court of Appeal stated:

[57]      The concept of “implied consent” does not apply to any group of women in Canada irrespective of whether they are married, living with intimate partners or in a relationship. Parliament abolished the marital rape exemption in the 1982 Code Amendments. Today, the idea of permitting rape in marriage is a concept most Canadians would not even have heard of. Section 273.1(1) of the Code was intended to ensure that sexual autonomy and choice existed for all women in Canada. No group or class is denied that protection.

g.            The complainant must be conscious throughout the sexual activity in question and possess an operating mind. Consent cannot be given ahead of time. The only relevant time frame for the consent is while the sexual touching is taking place. J.A. at para. 36 and 46.

[194]   The Defence submits that with married couples there is an implied consent to sexual touching to “test the waters” so to speak. In support of this position, the Defence relies on the cases Justice Koenigsberg’s decision in R. v. Went, 2004 BCSC 1205 (CanLII) and Justice Verhoeven’s decision in R. v. Heidemann, 2009 BCSC 1829. In Went, Justice Koenigsberg limits Ewanchuk’s prohibition against implied consent in cases such as this where the accused and Complainant are spouses. She states at para. 23:

The Ewanchuk case involved an alleged sexual assault between virtual strangers. In that circumstance, Ewanchuk stands for the proposition that there is no implied or behavioural consent which can be inferred between such individuals. I agree that in relation to the matter of behavioural consent, Ewanchuk does not stand for a broader proposition than that one cannot assume or imply behavioural consent as part of an honest but mistaken belief in consent when there is no history between the parties which would allow the accused to infer consent from anything other than express consent. Clearly, this was not the case before the learned trial judge nor is it on this appeal. This assault occurred between two people who had a very active two year sexual relationship and were still having that relationship when this incident arose.

[195]   Went and Heidemann predate J.A. in which the Supreme Court could not be more clear, a complainant either consents or does not, there is no implied consent.

Criminal Intent: Element 4: Intention to Touch

[196]   Even if the Complainant did not subjectively consent to the sexual activity, the accused must have intended to touch the Complainant, meaning it was not accidental or inadvertent. There is no question in this case the touching was intentional.

Criminal Intent: Elements 5: Having knowledge or being reckless of or wilfully blind to a lack of consent

[197]   The Crown must prove an accused intended to touch the Complainant in a sexual manner and that he had knowledge or was reckless or wilfully blind about her lack of consent. Whereas consent, as an integral element of the criminal act is considered from the perspective of the Complainant, consent, as an integral element of the criminal intent, is considered from the perspective of the accused: Ewanchuk, para. 44.

[198]   The accused can challenge the Crown’s mens rea evidence with the defence of honest but mistake belief in consent provided he has reasonable grounds for that belief: s. 265(4) of the Criminal Code.

[199]   Before the Court can consider it, a defence of mistaken belief must have an air of reality, meaning there is evidence upon which the trier of fact could acquit if it was accepted as true: R. v. Cinous, 2002 SCC 29 (CanLII), at para.86. The air of reality test will not be met where there are two diametrically opposed versions. In R. v. Park, 1995 CanLII 104 (SCC), L'heureux-Dubé J. wrote at paras. 25 and 26:

[25]      Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honest mistake, a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce a sufficient basis for such a defence. Would the acceptance of one version necessarily involve the rejection of the other? Put another way, is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent? If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility ‑‑ of consent or no consent ‑‑ and the defence of mistaken belief in consent should not be put to the jury.

[26]      To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in their interpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except in cases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent. On the other hand, courts have generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defence on voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifies that she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent.

[200]   Parliament has placed limits on an accused's ability to raise a defence of mistaken belief. Section 273.2 describes the circumstances in which an accused cannot rely on his belief that the complainant consented to the activity as a defence to a charge of sexual assault. It states:

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from

(i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[201]   The Chief Justice stated at para. 42 in J.A., “by requiring the accused to take reasonable steps to ensure that the complainant ‘was consenting’. The accused’s obligation is only based on what he knew at the time and the steps required depend on the particular circumstances: R. v. Crangle, 2010 ONCA 451 (CanLII) leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 300, at paragraph 29.)

[202]   In R. v. Alboukhari, 2013 ONCA 581 (CanLII), the Ontario Court of Appeal held assessing whether or not an accused has taken reasonable steps to determine consent is a “quasi-objective test”. The appellate court adopted the approach taken by the Manitoba Court of Appeal in R. v. Malcolm:

First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply (at paragraph 41.)

[203]   Courts have also held that “factors personal to the accused” must be considered in assessing whether or not reasonable steps were taken.

[204]   Although steps taken must be reasonable, an accused’s mistaken belief need not be: However, the reasonableness of the belief will be relevant to the issue of whether it was in fact honestly held. The more reasonable the grounds for the asserted belief, the more likely a judge will be to conclude it is genuine. 

[205]   Mr. L.H. and Ms. T.H. had been intimate partners for nine years. They are relatively young and have two young children. Until their separation on April 24, 2018, they were married, cohabitating and had an ongoing sexual relationship. The evidence of both Mr. L.H. and Ms. T.H. is that either one or the other would initiate sexual contact while in bed. They did this through non-verbal overtures of sexual touching. The passive partner would then indicate his or her interest or disinterest in sexual activity. They did not discuss or negotiate sexual activity beforehand; they did not talk about sex, either before or during.

[206]   Mr. L.H. and Ms. T.H. also engaged in a ritual they refer to as “make-up sex” after an argument. This too was not initiated or accompanied by any discussion. In the early hours of April 24, 2018, Mr. L.H. was attempting to make things right with his wife through sexual and non-sexual touching. This is how they reconciled in the past. Although Ms. T.H. claims to have told him not to touch her prior to the sexual touching, I do not believe her. Accordingly, I find Mr. L.H.’s defence of honest but mistaken belief does have an air of reality.

Issue #1: Has the Crown proven beyond reasonable doubt that Ms. T.H. did not consent to being sexually touched?

[207]   I am satisfied the Crown has proven beyond a reasonable doubt that Ms. T.H. did not consent to sexual activity at issue in these proceedings. To be clear, I do not find Ms. T.H. was asleep; I do not find she was digitally penetrated; and I do not find she told Mr. L.H. not to touch her before the incident of sexual touching. On the contrary, I accept Mr. L.H.’s evidence that: (a) Ms. T.H. was awake at the time of the sexual touching: (b), he had his hand on her for two seconds; (c) he did not digitally penetrate her; and (d) she did not tell him not to touch her until after the incident of sexual touching. Nevertheless, I am satisfied that subjectively Ms. T.H. did not consent to the sexual touching.

Issue #2: Has the Crown proven that Mr. L.H. did not have an honest but mistaken belief in consent?

What were the circumstances known to Mr. L.H. at the time?

[208]   The circumstances known to Mr. L.H. are discussed above and include: (a) Ms. T.H. was his spouse of nine years; (b) they had an ongoing sexual relationship in the context of their marriage; (c) they had a troubled marriage but soldiered on and at the time of the offence were still together as a couple; (d) in the year prior to April 24, 2018, Mr. L.H. and Ms. T.H.’s relationship had improved; (e) an ongoing issue in their marriage was Mr. L.H.’s failure to touch Ms. T.H. enough, which including withholding sex or refusing to show her affection; (f) Mr. L.H. had taken steps to try and address his distant and unaffectionate nature; (g) Ms. T.H. refused to speak to Mr. L.H. about her intentions to leave the marriage until the minute of her ultimate departure; (h) Mr. L.H. wanted to make things right with his wife and for his marriage to continue; (i) in the past, when they argued, Mr. L.H. and Ms. T.H. reconciled through “make up sex” which was initiated through an overture of sexual touching; (j) Mr. L.H. did not know of Ms. T.H.’s plans to leave the marriage, if in fact she had any.

What would a reasonable man do?

[209]   In the circumstances of Mr. L.H. and Ms. T.H.’s relationship, I do not find it unreasonable that Mr. L.H. wanted to try and “make up” with his wife. They had a relatively new home and new country lifestyle in [omitted for publication]. They had two young daughters and he wanted to save his marriage and show Ms. T.H. he loved her in a way that she had been asking repeatedly over the years.

[210]   Mr. L.H. went to bed with his wife in their bed in their bedroom, as was their habit. I accept his evidence he did not tell her he would sleep on the couch and she did not tell him not to touch her beforehand. I find as a fact she was awake. He touched her for two seconds. When she told him to stop, he did, immediately. He proceeded to touch her again on the couch, but only on her ankle as a comforting gesture in an effort persuade her to talk to him. The Crown argues by touching Ms. T.H.’s ankle, Mr. L.H.’s demonstrated his refusal to accept “no means no.” I do not agree. I find this simple gesture confirms Mr. L.H.’s evidence his earlier sexual touching was not solely for is personal sexual gratification, but a sincere attempt to reconcile.

Was Mr. L.H. Reckless?

[211]   Reckless means careless of the consequences, heedless, or lacking prudence or caution: R. v. Dickson, 2006 BCCA 490 (CanLII), at para. 41. In Malcom, Helper J.A. refers to R. v. Sansregret (1985 CanLII 79 (SCC), and the meaning of reckless in the context of a sexual assault:

Recklessness will arise where an accused subjectively perceives a danger or risk that consent is not present, but proceeds in any event.

[212]   Mr. L.H. engaged in an established practice of trying to make up with Ms. T.H. through touching and sexual touching. He understood he had her consent to make an overture to invite sexual activity and was required to stop as soon as she said so. Yes, they were angry, but they have been angry before. Yes, he was worried she was going to leave the marriage if he didn’t fix things, but she threatened to leave him before – usually for not touching her enough. Yes, she was in bed, but that is where they usually engaged in sexual activity.

Was Mr. L.H. wilfully blind?

[213]   The Supreme Court of Canada in Sansregret says that wilful blindness arises when a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. In Malcom, Helper J.A. elaborates in para. 12:

Wilful blindness . . . will arise in situations where it is obvious in the circumstances that there was no true consent (not just a risk that there may not be a consent), but the accused does not confirm that lack of consent because he wants to be able to say that he did not “know” there was no consent.

[214]   Ms. T.H. says she and Mr. B. ST. were just friends and she had no affair with him. It is not clear to me what Ms. T.H. said in her lunchtime telephone conversation with Mr. L.H. on April 23, 2018, but obviously, he became concerned she was interested in pursuing a relationship with Mr. B. ST. This situation had arisen in the past, but they were able to work through it and remain together. In the early hours of April 24, 2018, Mr. L.H. tried to persuade Ms. T.H. to talk to him about her intentions regarding Mr. B. ST. She refused to do so. It was not until after Mr. L.H. had taken M.M.H. to the bus stop that Ms. T.H. confirmed her intention to pursue a relationship with Mr. B. ST. and see where it went. It was then he began to understand their marriage, if not over, was “on a downhill slide.”

Did Mr. L.H. take all reasonable steps to ascertain consent?

[215]   As indicated above, I accept the air of reality test is met and will proceed with the Malcom analysis on the basis Mr. L.H. was neither reckless nor wilfully blind. At this stage, I must consider if the circumstances known to Mr. L.H. are such that a reasonable man would take further steps to ascertain consent before proceeding with sexual touching. Mr. L.H. bears an evidentiary burden to show he took reasonable steps in the circumstances known at the time: Malcolm, para. 22

[216]   In my view, given the circumstances subjectively known to Mr. L.H., as set out above, Mr. L.H. was taking steps to see if his wife wanted to engage in sexual activity consistent in the manner they had done throughout their marriage in similar circumstances. In reaching this conclusion I have considered that by April 24, 2018, Mr. L.H. and Ms. T.H. have had a dysfunctional relationship for some time arising from their inability to communicate with one another.

Conclusion on Count 1

[217]   In summary, I find the Crown has proven beyond a reasonable doubt Ms. T.H. did not consent to Mr. L.H. engaging in sexual activity with her in the early morning of April 24, 2018, in [omitted for publication]. I find Mr. L.H. took reasonable steps in the circumstances subjectively known to him to ascertain whether Ms. T.H. was consenting to sexual activity and therefore did have had an honest but mistaken belief in her consent. Accordingly, the Crown has failed to prove Mr. L.H. guilty of sexually assaulting Ms. T.H. beyond a reasonable doubt.

Issue #3: Has the Crown proven beyond a reasonable doubt Mr. L.H. physically assaulted Ms. T.H. on May 6, 2018?

[218]   Mr. L.H. is charged with assault under s. 266 of the Criminal Code which states:

266 Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[219]   An assault under s. 266 incorporates the definition of assault set out in s. 265 of the Criminal Code, the relevant portions of which are as follows:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose;

[220]   The Defence provided the Court with R. v. R.W.D.C., 2010 BCPC 157, a decision of Judge T.S. Woods, of the this Court on a domestic assault. Judge Woods emphasizes (at para. 30) that although domestic assaults are a scourge within our communities the accused is still entitled to the presumption of innocence, and like all other criminal prosecutions, the Crown bears the burden of proving all of the essential elements of its case against the accused beyond a reasonable doubt. This is a fundamental principle of our criminal law.

[221]   In this case I find Mr. L.H. did intentionally apply force to Ms. T.H. to remove her off his threshold. Mr. Greene argues Ms. T.H. consented to the use of force by placing herself in the doorway and refusing to budge. He cites R. v. Martin, 2010 BCPC 116, a decision of Judge Baird Ellen involving a tow truck operator charged with two counts of assault with a weapon and dangerous driving. In that case, the complainants interfered with Mr. Martin, a tow truck operator engaged in the execution of his lawful duty. They stood in front of the tow truck in an attempt to prevent Mr. Martin from towing their illegally parked van. The driver placed the truck into drive and nudged them ahead and out of the way in order to continue his lawful activities. Judge Baird Ellen acquitted Mr. Martin upon finding the complainants accepted the risk or consented to the application of force by refusing to move and obstructing the tow truck driver. She states at para. 118 of Martin:

[118]   The matter must be considered also, in my view, from Mr. Martin’s point of view. I do find that there was actually consent on the part of these two complainants and I note in finding that . . . neither of them moved immediately out of the path of the tow truck when it started to move. They maintained their position in front indicating an ongoing acceptance of the contact, minimal as it may have been on the part of the tow truck. But I also find that in the mind of Mr. Martin, there was in the circumstances all considered, implied consent or a reasonable belief in consent based on the actions that were taken by the complainants.

[222]   Mr. Greene argues, in the alternative, the assault charge against Mr. L.H. ought to be dismissed under the maxim of de minimis non curat lex: the law does not concern itself with trifles. The Defence relies on R. v. J.K.H., 2008 BCPC 13, a decision of Judge T.S. Woods of the Provincial Court. In that case, the complainant’s father and accused mother had a combative relationship in respect to parenting time of their child. On the offence date, when transitioning the child, the accused mother became concerned for the child’s well-being while in the father’s care. Agitated, she drove to the father’s new residence to confront him with her concerns. Judge Woods found the Crown had proven the mother had assaulted the father in attempting to gain entry to his house, however, found the encounter was of such insignificant nature the maxim of de minimis non curat lex applied, and no conviction was warranted. The Court stated at paras. 28 and 29:

[28]      Before closing these reasons I wish to emphasize that in considering what I have referred to as the “rough and tumble” pattern of interpersonal dealings between Mr. M and Ms. J as relevant context for assessing the threshold of legal tolerance for the application of non-consensual force in this particular case, I do not wish to be taken to condone intra-familial violence in any way. That kind of violence is a scourge within our communities and those who engage in it should expect to be dealt with firmly and resolutely when called before the courts to account for their actions.

[29]      But that does not mean that all assaults that occur within the domestic context, including technical assaults of the sort that prompted Mr. M’s complaint here, must be approached uncritically and in the same way. I am aware that there are decisions that suggest that the maxim de minimis non curat lex ought never to apply to assaults that occur in spousal situations. In my view, resort to such an absolute can work its own injustices and the courts must always be astute to the nuances that will be revealed on the facts of each case. The threshold of legal tolerance for the application of non-consensual force within spousal relationships will remain, and always should remain, a very low threshold indeed, but that is not to say that it will not vary to a degree from situation to situation. In this regard I would respectfully endorse and adopt the following passage from the judgment of Judge Semenuk in McLeod, supra:

“In my view, it would be wrong to have a blanket prohibition against the application of the de minimis principle in a domestic context. Inflexibility in the application of the law, without regard to the particular circumstances of the case, may work an injustice. The principle itself is an equitable one providing relief, in appropriate cases, from an unduly strict application of the law. Certainly, the fact that an offence occurs in a domestic context is a factor to be considered in the application of the principle, but it should not be a bar to its application in every case.” (at para. 85)

[223]   I consider both arguments advanced by the Defence compelling. However, before considering the question of consent or application of the maxim de minimis not curat lex in the context of this case, I prefer to first consider those sections of the Criminal Code which permits the use of force in defence of person or property.

Issue #4: Is the accused entitled to a defence of person or property?

[224]   Section 34 of the Criminal Code governs defence of person. It states:

Defence — use or threat of force

(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[225]   Section 34 (2) sets out a non-exhaustive list of factors that assists in determining if the act, was reasonable. It states:

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[226]   Section 35 of the Criminal Code states that a person is not guilty of an offence if:

(a) they either believe on reasonable grounds that they are in peaceable possession of property …;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

[227]   Before the Court need consider the defence of the person or property provisions, there must be an “air of reality” to the defence: R. v. Robinson, 2018 ONCA 741 (CanLII), at para.7. A defence has an air of reality if the trier of fact could acquit the accused on the basis of the defence: R. v. Morrison,2019 SCC 15 (CanLII), para. 118. If the Court finds there is an air of reality, the Crown must prove beyond a reasonable doubt the defence does not apply: R. v. Cinous (2002), 2002 SCC 29 (CanLII). The Crown need only prove beyond a reasonable doubt one of the three elements of self-defence set out in s. 34(1) of the Code does not apply: R. v. Randhawa, 2019 BCCA 15 (CanLII). This is because all three criteria in s. 34(1) must be present for the defence to be available.

[228]   The Defence relies on R. v. Rogers, 2010 BCPC 75, decision of Judge Baird Ellen involving a physical altercation between intimate partners. The issue in Rogers was whether the accused was acting in self-defence or defence of property or used excessive force in striking the complainant. In Rogers, the complainant refused to comply with the accused request he go home and followed the accused into his apartment. They began fighting and both were injured, the accused suffered a broken arm and the complainant a broken nose. The accused alleged he acted in self-defence. Judge Baird Ellen found the complainant was an unwelcome intruder and the accused was justified in using reasonable force under what was then s. 41 of the Criminal Code. The Judge further noted (at para. 61) it likely the entire altercation was within the scope of consent; however, as it was not argued and she did not need to decide on that basis. Judge Baird Ellen acquitted Mr. Rogers on the basis the Crown failed to prove the force he applied was excessive in the circumstances.

[229]   In this case Mr. L.H. was confronted at his front entrance with his former spouse who I find was throwing a temper tantrum because he would not consent to her removing a rifle or other items from the house. Although Mr. L.H. is 15 years older than Ms. T.H., they are both relatively slight of stature. Ms. T.H. was trying to force her way inside his home, while screaming and swearing and pushing at Mr. L.H.’s chest. She threatened to take the children with her if he did not allow her to have the rifle and whatever else she wanted to remove at the time. She had her sister in tow. Mr. L.H. described them as “red-faced and raring to fight.” Ms. T.H. refused to leave when he asked her to do so; she refused to leave when he threatened to call the police; she refused to leave when he called his sister to ask her to call the police. Instead, Ms. T.H. wedged her foot in the door to prevent Mr L.H. from closing it and tried get past him by ramming her shoulder against this chest. M.M.H. and M.L.H., who witnessed this altercation, were behind inside the residence screaming and crying.

[230]   I find Mr. L.H. had reasonable grounds to believe:

a.            Ms. T.H. was attempting to force her way into his home to take the children from his care and whatever else she wanted to take;

b.            he needed to remove Ms. T.H. from him home to defend or protect himself and the children; and

c.            if he removed Ms. T.H. from the doorway by pushing her off the threshold he could close and lock the door and she would leave.

[231]   L.H., M.H. and Ms. K.H. say Mr. L.H. pushed Ms. T.H. using one hand and minimal force. Ms. T.H. and Ms. C.P. say Mr. L.H. pushed Ms. T.H. with both hands with enough force to cause her to stumble backwards. I don’t need to decide whose version is correct, because even on Ms. T.H.’s own description of the force used against her, I find it reasonable in the circumstances. Ms. T.H. was the initial aggressor, she did not fall, she suffered no bodily harm and Mr. L.H. did not intent to inflict any.

[232]   Because I have determined Mr. L.H. is entitled to rely on the defence of person pursuant to s 34 of the Criminal Code, I do not need to decide whether or not he was also entitled to rely on the defence of property under s. 35, and decline to do so.

Conclusion on Count 2

[233]   I accept that Mr. L.H. defended himself and his children from Ms. T.H.’s use of force and that his actions were proportionate to the threat she posed at the time. I conclude the Crown has failed to disprove Mr. L.H.’s defence of person as codified in s. 34 of the Criminal Code.

Disposition

[234]   I find Mr. L.H. not guilty on Count 1 and 2 of Information 9361-2-KC and he is free to go.

 

 

___________________________

The Honourable Judges J.T. Doulis

Provincial Court of British Columbia

 

 

 

CORRIGENDUM – Released May 14, 2019

[1]         In the Reasons for Judgment dated April 18, 2019, the following change has been made to the first sentence in para. 217:

In summary, I find the Crown has proven beyond a reasonable doubt Ms. T.H. did not consent to Mr. L.H. engaging in sexual activity with her in the early morning of April 24, 2018, in [omitted for publication].

 

___________________________

The Honourable Judge J.T. Doulis

Provincial Court of British Columbia

 

 

CORRIGENDUM - Released June 26, 2023

A Corrigendum was released by the Court on June 26, 2023. The correction has been made to the text and the Corrigendum is appended to this document.

[2]         The citation in Paragraph [111] has been corrected to now read as R. v. R.E.M., 2004 BCPS 1679 at para 44.

[3]         The Judgment has been corrected to reflect this change.

 

 

___________________________

The Honourable Judge J.T. Doulis

Provincial Court of British Columbia