IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Under information 89828, J.F. is charged with both assaulting his former spouse, M.S., and assaulting her with a weapon on January 17, 2008, two days before their wedding. Further, he is charged with sexually assaulting her on that date.

[2]         In addition, he is charged with sexually assaulting Ms. S. about one year later in January of 2009.

[3]         This matter proceeded by indictment, and the information was sworn on August 1, 2019, some 11 years after the first allegation arose. Mr. F. elected to be tried in provincial court.

[4]         The burden is on the Crown to prove these charges beyond a reasonable doubt. Ms. S. and Mr. F. testified in this trial, as did other witnesses, so this case requires an assessment of the credibility and reliability of those witnesses.

[5]         Ms. S. met Mr. F. in 2004, and they moved in together later that year. They married on January 19, 2008 and had two children. They separated on June 4, 2009.

[6]         Ms. S. was residing with Mr. F. in their Abbotsford farmhouse on January 17, 2008, two days before the wedding. Mr. F. worked at a chicken hatchery, and he also had chores at the farmhouse where they lived.

[7]         On the evening of January 17^th, Ms. S. told Mr. F. she had plans to go out with her mother, J.C., to pick out her mother’s wedding clothes. Mr. F. did not want her to go out, as he had just finished work. He wanted her home with him. He raised his voice and followed her around the house. Mr. F. grabbed at Ms. S.’s wrist and arms, but she managed to get away from him initially.

[8]         Ms. S. heard her phone ringing which meant her mother had arrived. In cross examination, she said she did answer the phone once during the argument to say she would be right out. Ten minutes elapsed before she left with her mother.

[9]         In the meantime, Mr. F. was trying to swing her into the wall and into the doorframe of their bedroom. In cross, she said she was pushed into the wall many times. He had her by the shoulders, but she deked out from under him and went to the top of the stairs. However, she could not step off the top step because Mr. F. had hold of her jacket or the back of her neck and hair. She testified that he kept her balanced on the top of the stairs on one foot.

[10]      In cross examination, Ms. S. indicated that Mr. F. is six foot two inches tall, and he is a strong man. Although she was pregnant at the time, she was underweight at 135 pounds.

[11]      Ms. S.’s mother knocked on the front door of the farmhouse, and Mr. F. let go of Ms. S. In cross examination, Ms. S. said she could see her mother standing outside the glass front door. Ms. S. ran down the stairs and out the door. Her mother was concerned, but Ms. S. said that Mr. F. would calm down. In cross, Ms. S. estimated that she had been arguing with Mr. F. for about an hour before her mother arrived.

[12]      While Ms. S. and her mother were shopping, their cell phones were ringing non-stop. Ms. S. testified that she had to turn her phone off because it was heating up and she did not want it to get ruined.

[13]      It was around 9:00 pm when her mother returned her home. When Ms. S. got to the top of the stairs, she saw a hole in the wall next to where she had been standing when he was holding her earlier. The hole was the size of her head.

[14]      Ms. S. tried to ignore the hole, and she joked about having to hide it for the wedding. She tried to downplay the hole, as the wedding was in two days and she was about five months pregnant. In cross examination, she testified that Mr. F. told her he punched the hole when she left with her mother. When the bridal party was decorating for the wedding, the hole was covered with an engagement picture. This hole was never repaired, and they moved out of the farmhouse in August or September of 2008. The hole was at the height of her head.

[15]      Upon Ms. S.’s return from the shopping trip, Mr. F. was still upset that she would not do what she was told, and he came around the hallway raging and yelling. Ms. S. explained that she was doing things for the wedding. He then grabbed her by her arm and swung her away from the top of the stairs. She deked under his arm and headed to the bedroom. He continued to yell that he did not like her going out without his permission.

[16]      Ms. S. went to walk away, and Mr. F. pushed her up against a doorframe. The next 20 minutes were the longest of her life as she went from one room to another. In cross, she said he yanked her very hard and she would “fly”.

[17]      Ms. S. tried to get out the bedroom window at one point, but Mr. F. slammed the window on her hand.

[18]      Ms. S. testified that she went into survival mode. As soon as Mr. F. turned the corner into another room, she ran the other way, grabbed her jacket, phone and flip flops and exited the basement door. The house is on a road by a railway bridge, so she ran along the road some 100 yards in the dark. In cross, she said there were streetlights every 150 yards.

[19]      Ms. S. heard the garage door open and saw the lights from Mr. F.’s vehicle come on. She fumbled with the phone to no avail, and she considered running into a cornfield on either side of the road. In cross, she clarified that she was considering hiding in the cornstalks not cornfields as it was winter.

[20]      Before Ms. S. even had a chance to get off the road, Mr. F. had her by the back of her hair and by her arm, and he swung her at the car. He tried to get her into the car, but she put her hands and one foot on the car doorframe. With one fell swoop, he knocked her arms loose and hip checked her into the car. He told her she should not be running from him.

[21]      When Mr. F. got into the driver’s side of the car, he hit the dashboard so hard with his hand that he knocked out the stereo and the clock. Ms. S. broke down in tears, and Mr. F. said that she did not need to tell everybody he was beating her.

[22]      Ms. S. testified that she had no option but to go back to the farmhouse with Mr. F. and upstairs to the bedroom, but she tried to get ready to sleep. In cross examination, she said that Mr. F. locked the bedroom door and she could not get out.

[23]      Ms. S. then just remembers being pushed and feeling pain. Mr. F. said she was going to be his wife and she was going to act like his wife. His hand was on her neck pushing her down. He then did “his thing” and snuggled with her and went to sleep.

[24]      Specifically, Ms. S. testified that Mr. F. raped her from behind. He pulled her waist up, forced open her legs and proceeded to painfully ram his penis in her vagina and then her anus.

[25]      In cross, Ms. S. said she was concerned about losing the baby and internal damage. She said there was anal bleeding, and she could not walk properly the next day. She never disclosed the anal penetration to the police or the Crown prosecutor, but did discuss this issue with her therapist.

[26]      In cross examination, Ms. S. stated that she had bruising on her neck, shoulders and wrists from the incident. Her whole body ached the day after. At the wedding two days later, a friend who was a make-up artist covered up all the bruising. Ms. S. wore a strapless dress at the wedding. Other persons in the wedding party would not have noticed the bruising earlier, because she hid them with clothing.

[27]      In cross, Ms. S. was shown a number of wedding photographs where she is wearing a strapless wedding gown with bare arms and a low neckline, and no bruises are visible.

[28]      When Ms. S. was at the salon having her hair done prior to the wedding, she saw a chunk of hair stuck to a knot in her hair, and she vomited in the salon. Mr. F. had pulled her hair during the incident, but she did not notice this injury earlier.

[29]      Ms. S. said that she went through with the wedding because she did not want the children to be “bastard children”, and she did not fully understand Mr. F.

[30]      On January 15, 2009, approximately one year after the first set of allegations, Ms. S. says she was again sexually assaulted by Mr. F. On that evening, Ms. S. had a shower and went to bed. Mr. F. asked her “hey, you wanna do it?”, and Ms. S. indicated she did not want to engage in sexual activity.

[31]      Mr. F. became animated and called her a tease. He was grabbing at her leg and becoming angry. When he grabbed at her arm, Ms. S. just let him roll her over, and she said “make it fucking quick.” She testified that she “let him, very painfully, oh, very painfully let him have sex as fast I could get it over with.” She cried herself to sleep, and the next day she knew she was pregnant.

[32]      Ms. S. clarified that she would get up and try to leave the bedroom at earlier points, but Mr. F. would pull her back to bed. He said “you’re my wife, it’s your duty.” Ms. S. was scared that if she fought any further, she would be hurt or their son would wake up. So after two hours of verbal fighting, being grabbed at and having hair pulled, she stopped fighting.

[33]      When she stopped resisting, Mr. F. turned her over, pushed her neck down and engaged in vaginal sex. Ms. S. reiterated that it was very painful. Mr. F. used his hands to hold her onto the bed. He was ramming her over and over again.

[34]      Ms. S. had bruises on her wrists from the incident.

[35]      Over a year prior to the wedding, Ms. S.’s mother cosigned a $12,000 loan for Mr. F. and Ms. S. Ms. S. testified that both she and Mr. F. spent the monies inappropriately. Mr. F. gambled, although she went with him. She denied that Mr. F. pounded the dashboard of his vehicle well before the wedding, at a time when he discovered all the loaned money was gone. She did say that in May of 2009, Mr. F. pounded his fist on the dashboard because he did not want her using the car.

[36]      Mr. F. and Ms. S. separated in June of 2009, and Ms. S. later began a relationship with B.S., and the two women married in 2018.

[37]      Following separation, Ms. S. had primary care of the children, but in 2015 Mr. F. became the primary caregiver as Ms. S. was self-medicating with heroin. Ms. S. sought treatment and then tried to secure visits with the children. In the spring of 2016, she made a Supreme Court application for primary care of the children. A section 211 report was prepared, and Ms. S. felt that domestic violence was downplayed in the report.

[38]      In January of 2017, the Supreme Court ruled that Mr. F. and his current partner should remain the primary caregivers for the children. Currently, the children are physically in Ms. S.’s care, although she has no court order in that regard. Supreme Court litigation is proceeding on that issue as I write this decision.

[39]      Ms. S. first went to the police on April 9, 2019, about the sexual assaults and other allegations.

[40]      J.C. is the mother of Ms. S. She suffers from multiple sclerosis and admitted to having some short term memory issues.

[41]      Two days prior to the wedding on January 19, 2008, Ms. C. went to her daughter’s home to pick her up for some shopping. She stayed in her vehicle and phoned to see if Ms. S. was coming out. Ms. C. then texted Ms. S., and she finally came out of the home. Ms. C. says she did not go to the front door of the home.

[42]      Ms. S. went into the passenger side of Ms. C.’s vehicle and they drove to a shopping centre. Ms. S.’s phone kept on ringing, and Ms. C. noticed that her daughter was upset. Ms. C. told her daughter to turn off her phone and relax.

[43]      Ms. S.’s phone kept on ringing, and Ms. C. saw her daughter answer the phone and speak with Mr. F. She overheard Mr. F. say he hit the wall and that Ms. S. had to come home right away.

[44]      During the wedding that week, Ms. S. showed Ms. C. a hole in the drywall at the top of the stairs. It was hidden by an engagement picture. The hole was six inches by six inches.

[45]      Ms. C. also saw bruising on her daughter, including deep purple bruises on her left bicep. She was upset by this observation. In cross examination, she was unclear that her observations of the bruising could have been before or after the wedding. In her police statement, Ms. C. said the observation was made after the wedding, “within months after.”

[46]      Mr. F. is 43 years old, and his parents are R. and M.F. His father was a poultry salesman. Mr. F. has no criminal record. He is six feet two inches tall and weighs 230 to 240 pounds.

[47]      Mr. F. was previously married for a brief period, and he and his then wife separated amicably. Mr. F. has a work history with cold food storage and then a garden supply company. He later worked for [omitted for publication] and then as a driver for [omitted for publication]. He was working at [omitted for publication] in 2007 when he began living at the Abbotsford farmhouse with Ms. S. Mr. F. also coached minor hockey for three years.

[48]      Mr. F. met Ms. S. near the end of 2003, and they started dating in early 2004. He described the relationship as a good one with just a few issues. The couple first lived together in a basement suite in Abbotsford. Unfortunately, Ms. S. suffered a miscarriage following her first pregnancy. Sometime later while at the farmhouse, she gave birth to their son, B.

[49]      In the spring of 2007, Mr. F. and Ms. S. moved into the farmhouse in Abbotsford. A friend of his father operated the farm and offered the couple to live there rent free and to work part time on the farm. The residence was a well-kept prairie farmhouse. Mr. F. could not recall if there was a lock to the bedroom door, and he was not aware of any key for it.

[50]      Mr. F. was working a 7:30 to 4:00 shift with [omitted for publication] as well as attending to the farm. There were four barns full of chickens, and he usually worked two hours in the morning and two hours in the late afternoon.

[51]      Mr. F. acknowledged that he and Ms. S. borrowed money from her mother, but the sum was less than $12,000. He repaid Ms. C. He said that, as a couple, he and Ms. S. were overzealous in their spending and they gambled. By the fall of 2007, the borrowed money was gone.

[52]      According to Mr. F., he and Ms. S. would go to the casino with her friend, but Ms. S. also went to the casino on her own with this friend. Finances were a strain on the couple.

[53]      Mr. F. owned a 2005 Pontiac Grand Am. During the fall before the wedding, he and Ms. S. were in the Pontiac when they began arguing over finances. Mr. F. banged on the dashboard in front of Ms. S. and knocked out the lighting to the stereo and thermostat. There was a minor dent on the foam rubber part of the dashboard. Ms. S. attempted to get out of the car, and Mr. F. grabbed her arm to prevent her from leaving the vehicle. He did not recall any bruising on Ms. S.

[54]      Mr. F. said that Ms. S. was always one to speak her mind and “to air her dirty laundry.” In the s.211 report prepared for the family proceeding, Mr. F. only referred to the above incident in the Pontiac. He testified that he and Ms. S. never hit one another. He was brought up not to hit women.

[55]      Prior to the wedding, Mr. F. and Ms. S. approached his father for funds for the wedding. The couple were both embarrassed. Family and friends did pitch in to help with the wedding.

[56]      The wedding took place on January 19, 2008. Mr. F. testified that the allegations on January 17^th and 18^th as set out by Ms. S. never occurred, “not a one.” He did not recall any arguments. Ms. S. did go shopping with her mother but there were no arguments or altercations. There was no reason why he did not want her to go shopping with her mother. He had his own stuff to do.

[57]      Mr. F. said that he never once spoke in terms of Ms. S. having to follow his rules. He has respect for women.

[58]      Mr. F. also denied that there was any hole in the drywall just prior to the wedding. Wedding decorations and pictures were being hung up in the stairwell. Previously, in the summer or fall of 2007, there was a hole in the drywall caused by a piece of furniture which was being moved. It was three to four inches wide and was at waist level. Mr. F. called his father about the hole, and he was present when his father repaired the hole. In cross examination, he said that Ms. C. could only have seen a drywall patch, not a hole.

[59]      Also in cross examination, Mr. F. clarified that he had no recollection of a sexual encounter with Ms. S. on January 17^th, but the events as she described did not happen. Mr. F. denied slamming a bedroom window on Ms. S.’s hand.

[60]      The farmhouse is on [omitted for publication] going onto [omitted for publication], where Ms. S. claimed she was running. On each side of the road there is a dip. There are two other houses in the vicinity, and photographs of the area were marked as exhibits. Under cross examination, Mr. F. conceded that the streetlights were few and far between as compared to an urban setting.

[61]      On the day before the wedding, on January 18, 2008, at least a dozen people were helping with wedding decorations, setting up tables and preparing food. On the night before the wedding, Mr. F. and Ms. S. did not sleep in the same home. She was at the home of one of her bridesmaids or her mother.

[62]      Ms. S. did not return to the farmhouse on January 19, 2008 until right before the wedding ceremony. Mr. F. remained at the farmhouse tending to his chores.

[63]      Ms. S.’s wedding party included her sister (now deceased), someone named N., and her mother. K.L.B. was the make-up artist, and she arrived early because she was also arranging the music for the wedding.

[64]      Mr. F. said it was a good wedding. Ms. S. did not appear upset. His father took the wedding photographs of the bride and others marked Exhibit 1. Ms. S.’s arms were bare, and Mr. F. did not see any heavy make up on her body.

[65]      Mr. F. denied any sexual assault in January of 2009. He only learned of this allegation and the 2008 allegations in September of 2019.

[66]      Ms. S. left the relationship in June of 2009. Mr. F. did not want the relationship to end for the sake of the children. Ultimately, Ms. S. took up residence with B.S.

[67]      In 2015, Mr. F. became aware of Ms. S.’s drug problem and an overdose. The Ministry intervened and he became the primary parent for the children. The Supreme Court orders still show him as the primary caregiver, and the Supreme Court will be making further decisions on this issue shortly. Ms. S. now has care of the children, and he last saw the children in June of 2020.

[68]      R.F. is the father of the accused, J.F., and he is 68 years old.

[69]      R.F. was aware that his son and Ms. S. moved into the Abbotsford farmhouse in the late summer of 2007. The operator of the farmhouse was a good friend of R.F., and his son was hired as a contractor at the farmhouse.

[70]      Sometime after his son moved in, his son told him about a hole in the drywall at the top of the stairs on the right side. The hole was 3 feet above the top stair. R.F. did a plaster patch repair but did not paint it.

[71]      R.F. felt it was his responsibility to ensure the damage was repaired. The repair happened in or about October of 2007, well before the wedding.

[72]      R.F. attended the wedding on January 19, 2008. He was aware of the couple’s financial difficulties, so he, his wife and others assisted with the wedding “out of pocket.” They set up chairs and tables, and decorations were placed up the stairwell.

[73]      R.F. was in the farmhouse a good part of January 18^th and the wedding day. He noticed nothing untoward about Ms. S. or any indication of injury.

[74]      About 30 people attended the wedding. R.F. stayed until about 9:30 pm.

[75]      R.F. last saw his grandchildren on Father’s Day, 2020.

[76]      If Ms. S.’s evidence about the events on January 17, 2008 and January 15, 2009, were wholly accepted, there would be no issue that assaults and sexual assaults occurred. Section 265 of the Criminal Code defines assault as the intentional application of force to another person without consent. Ms. S. described numerous such assaults two days prior to the wedding in 2008, and an assault with a weapon arises when Mr. F. slammed the window on her hand.

[77]      The non-consensual sexual encounter prior to the wedding as described by Ms. S. is obviously a sexual assault under s. 271 of the Criminal Code. Likewise, if Ms. S.’s evidence about the January 2009 incident were wholly accepted, that incident also constitutes sexual assault. Although Ms. S. ultimately stops resisting Mr. F. and says “make it fucking quick,” such behaviour on her part clearly does not amount to consent due to the earlier force applied against her. See s. 265(3) of the Criminal Code.

[78]      However, in this case, Mr. F. provides an entirely different account of what happened in 2008 and 2009. He completely denies that the assaults or sexual assaults occurred.

[79]      As a result, this case requires an assessment of the credibility and reliability of a number of witnesses, including the accused and the complainant. In a case involving credibility, the legal principles in R. v. W.(D.), [1991] 1 SCR 172 and R. v. H.(C.W.), [1991] 68 CCC [3d] 146 apply.

[80]      I will enumerate those principles shortly but it is important to bear in mind that R v. W.(D.) is not a one-size-fits-all magical incantation, as discussed in R. v. Ryon, 2019 ABCA 36 (CanLII).

[81]      The fundamental rule is that the burden of proving guilt of the accused is upon the prosecution. Further, the principle of reasonable doubt applies to issues of credibility as well as fact. It is not proper to view a decision in this case as an "either/or", choice. The verdict depends not on a stark choice of who was believed, but whether the charge was proven beyond a reasonable doubt.

[82]      Applying the case law, the analysis in a credibility case such as this one should be as follows:

[83]      In paragraph 107 of the case of R. v. Rochemont, 2017 BCSC 930, there is a useful summary of the many factors to consider in assessing a witness' credibility and reliability. These factors include internal consistency, consistency with other evidence, corroboration or contradiction, the ability to observe, demeanour, motive, and inherent plausibility.

[84]      The presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case just the same as in any other criminal trial. As stated in R. v. Nyznik, 2017 ONSC 4392 (CAN LII), there are aspects of sexual assault cases that can make the application of the standard a difficult one:

[85]      When assessing credibility, it is also important not to engage in rape myths or stereotypical thinking. Under s.276 of the Criminal Code, evidence that a complainant engaged in sexual activity on other occasions is not admissible to support an inference that the complainant is more likely to have consented this time or she is less worthy of belief. In this trial, no applications were made to present this type of evidence in any event.

[86]      There are many other myths to be wary of, including the myth that women who are sexually assaulted will tell someone immediately. Complainants process trauma in many different ways.

[87]      As well, it is improper to believe that women of “bad character” or who use drugs or alcohol are more likely to consent or are less worthy of belief for those reasons.

[88]      I will begin and end my analysis by saying that I do not know whom to believe in this case.

[89]      Generally speaking, both Mr. F. and Ms. S. gave credible and consistent accounts in their direct evidence and they were not seriously shaken in cross examination. Mr. F.’s evidence on some matters lacked detail, but these allegations are very dated.

[90]      Ms. S.’s evidence must be juxtaposed with the wedding photographs showing no bruising or injuries, and I discuss this below. She had some tendency to exaggerate, as exemplified by her concern that her cell phone was overheating and could be ruined by receiving too many calls from Mr. F.

[91]      Defence counsel made much of Mr. F.’s purported good character. He has a good work history, positive family support and no criminal record. General character evidence of this type is of little assistance in assessing credibility. People of general good character and without criminal records can commit sexual assaults, and can lie about it under oath.

[92]      I do take into consideration somewhat more specific assertions such as Mr. F.’s comment that he was brought up not to hit or disrespect women, but then I must contrast that with Ms. S.’s portrayal of him as a raging, controlling and violent person.

[93]      Motive to fabricate is a relevant factor. There is absolutely no onus on the accused to show that the complainant had motive to fabricate, but Mr. F. has raised motive as an issue in this trial. He submits that the family case in Supreme Court motivated Ms. S. to fabricate these allegations. She lost primary care of her children in 2015, and she has not been successful in obtaining an order giving her primary residence of the children. She now has the children physically in her care, and the matter is being litigated as I write this decision.

[94]      Motive to fabricate is a valid consideration here, but I must bear in mind that the evidence of both Ms. S. and Mr. F. can be coloured by the fractious family litigation.

[95]      Motive to fabricate ties into defence counsel’s submissions about the late disclosure of the assaults and sexual assaults. Those events are said to have occurred in 2008 and 2009, yet there is no disclosure to police until 2019. As indicated above, the late timing of disclosure by itself is not a proper credibility factor. Complainants process trauma in their own way, and Ms. S. was earlier dealing with a therapist.

[96]      However, on the issue of motive to fabricate, the fact that the disclosures arose after the family litigation intensified is a relevant but not determinative factor. I say the same about the anal penetration allegation which arose only at trial and no earlier time.

[97]      In the end, I must follow the R v. W.(D.) analysis discussed above. I have considered Mr. F.’s evidence in the context of the evidence as a whole and found it to be generally credible. He was less detailed than Ms. S. when describing some events, but he denied the specific allegations and the events are very dated.

[98]      I also found Ms. S.’s evidence to be generally credible as well, but there was some photographic evidence requiring explanation by her. The wedding photographs taken two days after the numerous alleged assaults show Ms. S. in a strapless wedding gown with no bruising to her wrists, arms or neck. Yet Ms. S. states she had suffered a violent sexual assault resulting in many bruises, loss of hair, and difficulty in walking.

[99]      Ms. S. testified that her makeup artist covered up all the bruising. Her mother saw some bruising, but her memory of when she made these observations lacked clarity. Mr. F. and his father saw nothing untoward about Ms. S. on her wedding day. Ms. S.’s explanation about the makeup artist is plausible, but when juxtaposed with the photographs and Mr. F.’s account, I am left in a reasonable doubt about what happened in January of 2008.

[100]   I only heard from the complainant and her mother and the accused and his father regarding the events leading up to the wedding. Under s. 274 of the Criminal Code, no corroboration is required for a conviction, but in the absence of any other eyewitness testimony in this case, I remain with a reasonable doubt concerning the allegations.

[101]   Both explanations about the hole in the drywall are plausible. Ms. S. and her mother say that they saw the hole and that Mr. F. admitted to hitting the wall on January 17, 2008. Mr. F. says the hole resulted from furniture being moved well before the wedding, and his father testified that he repaired that hole in the fall of 2007. It is possible that Mr. F. Sr. repaired a different hole, but it is not possible for me to resolve whether a large, six inch unrepaired hole existed prior to and during the wedding in January of 2008 and whether Mr. F. caused the hole.

[102]   Likewise, Ms. S. and Mr. F. gave different explanations for the damage to the car dashboard, and both accounts are plausible.

[103]   Ms. S. gave considerable detail about the sexual assault in 2009, and Mr. F. could only say nothing untoward happened at that time. His lack of detail is understandable given he only learned of the allegations a decade later and given he maintained nothing unusual happened.

[104]   Looking at all of the allegations in 2008 and 2009 and my analysis above, I do not know whom to believe in this case. Consequently, I have a reasonable doubt about all the charges.

[105]   Mr. F., please stand up. You are acquitted of all charges.