IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Shane Bridges (the “accused”) is charged in an Information sworn January 13, 2020, that on or about February 16, 2019, at Vancouver, British Columbia, he did sexually assault M.K. (the “complainant”), contrary to s. 271 of the Criminal Code of Canada (the “Code”).

[2]         The accused is further charged that following the alleged sexual assault he committed a common assault of the complainant, contrary to s. 266 of the Code.

[3]         The 68-year-old complainant testified she had recently met a man at a local community drop-in centre (the “GNH”), and invited him back to her independent living apartment where she alleges she was “raped”. Following the alleged sexual assault, she testified the man then punched her on the left cheek, pinched her face and threw her to the ground against the toilet in the bathroom.

[4]         The complainant testified she was terrified and fled her apartment, both sockless and shoeless, and ran to her daughter’s residence that was approximately one block from the complainant’s apartment. Her daughter (“M”) let the complainant into her apartment. Shortly afterwards, the Vancouver Police Department (the “VPD”) became involved and an assault investigation was launched.

[5]         Has the Crown proved beyond a reasonable doubt that the man who allegedly sexually assaulted the complainant and then committed the common assault of the complainant is the accused?

[6]         In written Admissions, the accused admits he is the individual seen interacting with the complainant depicted in surveillance video from GNH on February 15, 2019, (Exh. 1).

[7]         The accused admits he accompanied the complainant back to her apartment at approximately 10:05 AM on February 15, 2019, where he spent a portion of time interacting with the complainant. He does not admit that he was present at her apartment at or around 3:00 AM on February 16, 2019.

[8]         The accused admits the photo pack identification conducted by the VPD with the complainant on October 12, 2019, (Exh. 4(a) and (b)).

[9]         In direct examination, Cst. Baskerville testified that at 3:16 AM on February 16, 2019, she and her partner were dispatched to a reported assault in progress at the complainant’s apartment.

[10]      They arrived at the complainant’s apartment building at 3:20 AM, where they met a caretaker, who escorted the police to the complainant’s apartment. The door to the complainant’s apartment was not locked.

[11]      Cst. Baskerville testified that when they entered the apartment it was evident that there was no one in the apartment. However, she noticed that within the apartment there was a “very strong odour of vomit”.

[12]      The caretaker gave Cst. Baskerville the telephone number for the complainant’s daughter. The complainant’s daughter was contacted and she gave the police her address.

[13]      Cst. Baskerville testified that when they got to M’s apartment they were advised by M that the complainant had just arrived and that she was not wearing any shoes.

[14]      Cst. Baskerville testified the complainant appeared to be calm, though a little confused. Cst. Baskerville did not observe any injuries. The complainant gave a statement in which she described being physically assaulted. Based upon that information, Cst. Baskerville commenced common assault investigation.

[15]      Cst. Baskerville testified that she experienced some difficulty in following up with the investigation, as she had trouble getting into contact with either the complainant and/or M. On August 8, 2019, Cst. Baskerville received an email from M in which M advised that she had further information surrounding the alleged common assault investigation.

[16]      On October 2, 2019, Cst. Baskerville received further information from M disclosing that the complainant had been sexually assaulted on February 16, 2019.

[17]      On October 10, 2019, Cst. Baskerville received an email (Exh. 3) from M. That email generated a subsequent meeting with the complainant. An audio statement was received from the complainant and the common assault investigation was expanded to now include a sexual assault investigation.

[18]      Cst. Baskerville testified that GNH became a place of interest. She attended at GNH where she downloaded video footage from February 15, 2019, depicting interactions of the accused with the complainant.

[19]      On October 19, 2019, the accused was arrested for the sexual assault and common assault of the complainant.

[20]      In cross-examination, Cst. Baskerville testified that there was no indication that the complainant’s apartment was in any disarray on February 16, 2019.

[21]      She testified that prior to August 8, 2019, in her efforts to contact the complainant, she sent five to six e-mails to M. She also left several phone messages for the complainant. Additionally, she attended on several occasions at the complainant’s apartment, but on each occasion, the complainant was out.

[22]      In direct examination, SP testified that she is the Executive Director of GNH. She describes GNH as a community-based drop-in centre that provides a variety of services and programs.

[23]      She is familiar with the accused, who attended various programs in 2018 and 2019.

[24]      At the request of Cst. Baskerville, SP downloaded the video footage depicting the interactions between the accused and the complainant on February 15, 2019

[25]      In cross-examination, SP was taken through portions of the video footage. At one point, she identified an employee at GNH giving a towel to the accused. She believed that the accused may have cut his hand in the thrift store.

[26]      In direct examination, the complainant testified that in February 2019, she was living in an independent living apartment. M lived one block away. GNH was approximately two blocks from the complainant’s apartment.

[27]      She testified that she went to GNH on February 15, 2019, to get some groceries. While she was at GNH, she saw a young man having some tea and colouring.

[28]      She testified that she loves painting and was therefore was attracted to this man as he was colouring. What stood out for her was the man only had one tooth and a distinctive laugh. He appeared to be slim and in his thirties.

[29]      She testified the man “was acting very nice” and it was her impression that he wanted “to be a friend”. She recalled that she bought him a hat and a scarf to be friendly.

[30]      She felt they were getting along so well that she thought it would be nice to invite him back to her apartment for a sandwich and perhaps watch a movie. He accepted the invitation.

[31]      She recalled, “as clear as a button”, that the two of them entered her apartment and the door closed behind them.

[32]      She recalled that she may have been playing a DVD movie and was going to make a sandwich for the man, when he became very ill and threw up on the floor of the bathroom.

[33]      She testified her bedroom is a few steps away from the bathroom. She next observed the man with his penis in his hand telling her: “This is what the boys like and this is what you get”. The man pushed her into the bedroom and onto the bed, stomach down, and her vagina exposed.

[34]      She testified that he “rammed” his penis into her vagina on two occasions and that it seemed to take “forever” before he stopped. She experienced pain when he was inside her. She described that she was not in her right mind during this attack. She told the man to get off of her. He did.

[35]      She next recalled being near the bathroom when the man punched her on her left cheek and pinched her face. The man then pushed her to the floor up against the toilet in the bathroom. The altercation ended. She managed to put on some clothing, less socks and shoes, and fled taking the staircase to the ground floor where she exited the building.

[36]      She testified that she tried to go back into her building to seek help, but the exit door locked behind her so she decided to go to M’s apartment.

[37]      She recalled seeing a couple of men outside of her building and she asked them to phone the police for her. She described that it was very cold outside, because she was in her bare feet.

[38]      She recalled banging on the door of M’s apartment and M let her in. Shortly after that the police arrived.

[39]      The complainant viewed six still photographs downloaded from the GNH video surveillance [Exh 2]. She identified a man in a Mac shirt with his back to the camera as also looking like the man she met at GNH on February 15, 2019.

[40]      The complainant testified that the man who allegedly sexually assaulted her was the “same person” she saw colouring at GNH.

[41]      In cross-examination, the complainant testified that at times, in the past, she has experienced memory problems but maintained that her recall of events on February 15, and 16 of 2019, was “clear as a button”.

[42]      She described the man in relation to those dates as being “quite charming” and “really nice”. She thought he may have been a person living on the streets because he was given a blanket at GNH.

[43]      The complainant was taken through the video footage from GNH commencing in or around 10:02 AM on February 15, 2019. She identified herself using a walker and the man [the accused], who she later invited to her apartment. As she was being taken through the video footage, she testified that some of the sequences were like a “puzzle”.

[44]      She recalled something had happened to the man’s hand but was unable to provide any detail. She also could not recall whether she bought him the hat and scarf he was observed wearing in the video footage.

[45]      She agreed with the suggestion that at one point this man appeared to hug her before they both left GNH. The complainant left first and then followed by the man at approximately 10:04 AM.

[46]      She recalled she had a meal with the man at Christ Church Cathedral. She could not recall whether the meal was a breakfast, a lunch or a supper.

[47]      However, when she reviewed the schedule of events for the week of February 10, 2019, at the Christ Church Cathedral (Exh. 5), other than an afternoon café, there did not appear to be any other meals being offered at the Cathedral.

[48]      She denied that she was in her bed at her apartment prior to the alleged sexual assault. While the elevator in her building was practically next door to her apartment, she testified that was “so wired out and scared” after the alleged sexual assault that she ran down the stairs because she was afraid the man would catch her at the elevator.

[49]      She testified that as she fled her apartment she was hearing “voices like crazy” in her head. She realized that the voice was her voice telling her that she had to get away to M’s residence or she would be killed.

[50]      She recalled that when she was outside she came across two men. She either asked them to call the police, or she called the police with their cellular telephone, as she did not have her cellular telephone. In her mind, she thought the two men may be drunk or high on drugs.

[51]      When the police arrived at M’s apartment, she was not sure if she wanted to make a detailed statement because M discouraged her from doing so. M told the complainant that she was not “in shape” at that time to make a detailed statement.

[52]      When it was suggested that she could not be sure that she was sexually assaulted, the complainant testified, “I know when something goes in me and goes out of me. I am going to tell you I know I was raped”.

[53]      She agreed with the suggestion that she did not disclose any sexual assault at that time. She recalled telling the police she was punched in the face by the man and then being pushed to the bathroom floor by the man.

[54]      She testified she went to a doctor or several doctors for treatment. She recalled being prescribed medication that she believed was Clonazepam.

[55]      The complainant testified that after her encounter with the man she became “upset” and introverted. She “secluded” herself from many activities that she used to enjoy. She experienced feelings of being “mentally ill” and going “bizonkers” after the alleged sexual assault.

[56]      She testified that she was referred to the West End Seniors Network (the “WESN”) that offered counselling for women in crisis. In her contact with the WESN, she disclosed what took place in her encounter with the man at her apartment.

[57]      She testified that it “did not take much” for the people at WESN to believe her. She was also urged by the people she spoke to at WESN, including a reference to speaking to a lawyer that she should to go to the police. The complainant believed that this was something she had to do to “protect kids in the neighbourhood”.

[58]      The complainant testified that, besides speaking to people at WESN, she also spoke to M, Cst. Baskerville, her friends, her cousins and her nieces about the “rape”.

[59]      In direct examination, M, a registered nurse, testified that she called the complainant on February 15, 2019, around 4:30 PM. She recalled the complainant appeared to be in a cheerful mood.

[60]      The complainant told M that she was at her apartment with a man she met at the GNH.

[61]      M testified that at around or 3:00 AM on February 16, 2019, the complainant was banging on the door of her apartment. When M opened the door, the complainant appeared to be “panicky” and looked “frazzled”. She was only wearing a T-shirt and pants. She was not wearing any socks or shoes.

[62]      She could not recall if the complainant had a shower before or after the police arrived. In any event, she noted that when the complainant undressed she was not wearing any underwear. M noticed the complainant had some red welts on her upper chest and one of her cheeks was red.

[63]      She testified that she wrote out a statement narrated by the complainant for Cst. Baskerville, with respect to an alleged common assault that had occurred at the complainant’s apartment.

[64]      She testified that a week or two later, the complainant disclosed to M that she had also been sexually assaulted. M advised the complainant that she should go to the doctor for medical treatment.

[65]      She testified that she attempted to follow through with Cst. Baskerville to provide for information to assist in the investigation of the alleged common assault. Contact was finally made on August 8, 2019, which was followed up with email correspondence sent to Cst. Baskerville in October 2019. It was this sequence of events that resulted in the VPD taking a further statement from the complainant which led to a sexual assault investigation, along with the common assault investigation.

[66]      M described the complainant’s demeanour after she disclosed the alleged sexual assault as an individual who became depressed, secluded, afraid to walk in the neighbourhood, panicky, sad, and at times, tearful.

[67]      In cross-examination, M testified that when she spoke to the complainant earlier that day, the complainant told her there was a man in her house lying down on her bed who was sick.

[68]      The complainant told her that she had met this man earlier that day when she was having lunch at the GNH.

[69]      M did not believe there was an emergency so did not go to the complainant’s residence to see if she could provide any medical assistance to the man.

[70]      M disagreed with the suggestion that the red welts, or blotches, that she saw on her mother could have been reactive to the cold weather that night.

[71]      After the complainant disclosed the alleged sexual assault, M advised her to get some medical treatment. She left it up to the complainant to decide if she wanted to go to the police.

[72]      M testified that the complainant has a bi-polar condition that requires she take medication regularly. Historically, when the complainant was not taking her medication regularly, she would suffer from a psychosis that could cause her to become confused and frazzled and could also result in her being unable to identify “very good boundaries”.

[73]      However, M testified the complainant has not been off her medication for a long time.

[74]      M testified that one of the concerns expressed by the complainant in efforts to facilitate a meeting with the VPD turned on a concern that she did not want the police to arrive at her apartment in uniform, because she broke the rules by permitting the man to come into her apartment at a time when guests were not allowed.

[75]      The Crown’s submissions can be summarized as follows:

[76]      The submissions of the accused can be summarized as follows:

[77]      Credibility and reliability are different evidentiary concepts. The British Columbia Court of Appeal in R. v. Khan, 2015 BCCA 320 at para. 44 noted the distinction between the two concepts as follows:

[78]      Additionally, the credibility of testimony in a trial can be impacted by evidence that materially confirms or contradicts a witness’s testimony: R. v. Eddison, 2019 BCPC 139 (CanLII) at para. 387.

[79]      The accused submitted that in this case there was a total absence of any reliable corroboration to support the complainant’s assertion that she was sexually assaulted.

[80]      As a matter of law s. 274 of the Code has specifically repealed any statutory corroboration requirement or any common law corroboration requirement to support the evidence of the complainant in a sexual assault case. That section reads as follows:

[81]      Notwithstanding this section when weighing the evidence in a sexual assault case, the trier of fact still has the discretion to exercise caution where the trustworthiness of the testimony of a complainant is unsupported. Similarly, the trier of fact can also rely on evidence which supports the trustworthiness of the testimony of a complainant: R. v. Camp, 1977 CarswellOnt 18 at para. 5 (C.A.) applied R. v. K., 1991 CanLII 5761 (BC CA), 1991 CarswellBC 418 (C.A.) at para. 24.

[82]      The Crown submitted that its case is a strong prima facie case. The meaning of prima facie was discussed by Lander Co Ct. J. (as he then was) in R. v. Dickie, [1979] B.C.J. No. 1889 at para. 18:

[83]      The accused elected not to testify. That is his right. However, an adverse inference may be drawn from the failure to testify in certain circumstances, namely where the Crown has adduced sufficient evidence at the close of its case to establish a prima facie case supporting a finding of guilt beyond a reasonable doubt. If an accused does not adduce evidence in such a case, he or she runs the risk of a conviction: R. v. Lepage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654 at para. 69.

[84]      However, the evidentiary onus does not require that the accused has to establish his or her innocence by proving that an element of the offence is not made out. All he has to do is raise a reasonable doubt: R. v. Kovlaske, 2020 BCSC 2098 at para. 109.

[85]      It must also be remembered that the onus rests upon the Crown to establish all elements of the two offences beyond a reasonable doubt. The majority of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40 at para. 242 instructs, in part, that the concept of proof beyond a reasonable doubt is “much closer to absolute certainty than to proof on a balance of probabilities”.

[86]      A key feature of this case is a determination of the reliability of the complainant’s testimony. What was her ability to observe, recall and recount?

[87]      The complainant was adamant that she was sexually assaulted in the early morning hours of February 16, 2019, by the man that she met at GNH on February 15, 2019.

[88]      However, her testimony had little detail of the timeline of events that took place with this man after they left GNH shortly after 10:30 AM on February 15, 2019.

[89]      She recalled that they may have had a meal at Christ Church Cathedral, either breakfast, lunch or supper. However, that is not consistent with the schedule of events (Exh. 5) at Christ Church Cathedral on February 15, 2019.

[90]      When the complainant viewed the surveillance video downloaded from GNH, it was quite clear that she had little recollection of her interaction with the man. She described it as a “puzzle”.

[91]      For example, she initially testified that she bought him a hat and a scarf, but as she was watching the video surveillance she was not sure whether she bought him the hat and scarf he was wearing when they left GNH.

[92]      In both direct examination and cross-examination, the complainant was adamant that the man only had one tooth. Upon a careful review of the video footage at 10:03:35 and at 10:04:31, the man’s mouth is partially open and both upper and lower teeth are observed. Although it would appear the man was missing some teeth, it is not the case that he only had one tooth.

[93]      M testified that she spoke to the complainant around 4:30 PM on February 15, 2019. During the course of that telephone call, the complainant told her that there was a man lying down on her bed as he was sick. Oddly M, a registered nurse and the complainant’s daughter, made no inquiries about what was taking place with this man, including inquiring about his apparent illness.

[94]      The complainant was adamant in her testimony that she was never on her bed, sleeping or otherwise, at any time until she was sexually assaulted by the man. However, in the email sent by M to Cst. Baskerville on October 10, 2019, (Exh. 3), M writes, in part:

[95]      It was not until shortly after 3:00 AM on February 16, 2019, that the complainant shows up at M’s apartment disclosing that she had been physically assaulted by a man at her apartment.

[96]      The complainant could not provide any timeline as to what took place between 4:30 PM on February 15, 2019, until she was assaulted around 3:00 AM on February 16, 2019.

[97]      I draw from the complainant’s direct and cross-examination that she believed that she was sexually assaulted shortly after she arrived at her apartment with the man she met at GNH. However, that would be inconsistent with the testimony of M and the email she sent to Cst. Baskerville on October 10, 2019, as noted at paragraphs 93 and 94 of this judgment.

[98]      The complainant’s testimony relating to both assaults establish that the assaults were both violent and sudden. The assaults ranged from the bedroom into the bathroom where she was then pushed to the floor against the toilet after being punched in the left cheek and having her face pinched.

[99]      Cst. Baskerville and her partner cleared the complainant’s apartment. There was no one in the apartment. Cst. testified that the apartment was not in any “disarray”. The only thing that stood up for her was the strong odour of vomit.

[100]   I infer that if the assaults were consistent with the testimony of the complainant there would have been some evidence of the apartment being in disarray.

[101]   M testified that the complainant either had a shower before or after the police attended at her apartment. If the complainant had a shower before Cst. Baskerville and her partner arrived it would have been expected that M would have told Cst. Baskerville that the complainant had red welts on her upper chest and a red left cheek. This she apparently did not do.

[102]   If the complainant had a shower after the police left M’s apartment then would it not be logical that M would disclose her observations at the earliest opportunity to Cst. Baskerville? This she apparently did not do.

[103]   I find Cst. Baskerville to be a credible and reliable witness. She did not observe any injuries on the complainant in her almost one hour interaction with her. While M described the complainant as “frazzled” when she arrived at M’s apartment, Cst. Baskerville described the complainant’s demeanour as calm but confused.

[104]   The complainant testified that she fled her apartment after the assaults without even having time to put on any socks or shoes. M testified that the complainant arrived at her apartment without socks and without shoes. She was wearing only a top and slacks. M later noted that the complainant was not wearing any underwear.

[105]   There was no evidence led as to what happened to the complainant’s underwear. I do not know if she was in fact wearing any underwear before she was assaulted. Clothing must have been removed as the complainant testified she was pushed stomach down onto the bed with her vagina “open”. There was no reliable evidence to establish how her outer clothing came to be removed and whether that clothing was damaged. It is clear from the GNH video footage that the complainant was wearing upper outer clothing, including trousers and footwear.

[106]   The complainant’s testimony was also unclear whether she saw one or more doctors after the assaults. She recalled she was given prescribed medication that she believed was Clonazepam.

[107]   M testified the complainant was taking medication regularly to address a bipolar disorder. I do not find that there is any evidence that would establish that the complainant was not taking her prescribed medication for bipolar condition regularly as prescribed.

[108]   It is concerning that a significant period of time went by before the complainant disclosed that she was sexually assaulted. This passage of time can, in part, be explained by the complainant experiencing depression and anxiety. M testified that the complainant’s demeanour changed after February 16, 2019.

[109]   M testified one of the reasons for the delay turned on the complainant’s concern that Cst. Baskerville, or other VPD members, would come to her apartment in uniform. That does not make sense. Alternatively, it would take mere moments to request that Cst. Baskerville, or other VPD members, come to the complainant’s apartment wearing civilian clothes. I cannot imagine that Cst. Baskerville, or other VPD members, would not comply with such a request.

[110]   I am unaware of whether or not a video canvass was performed by the VPD of the complainant’s apartment building, including the lobby, or of the surrounding neighbourhood, which potentially could put the accused either at the complainant’s apartment building or in the immediate neighbourhood of her apartment building at or about 3:00 AM on February 16, 2019.

[111]   I am unaware if any photographs were ever taken of the complainant’s apartment or of the complainant herself on February 16, 2019, that potentially could support the complainant’s testimony that it was the man she met at the GNH who assaulted her.

[112]   No forensic evidence, including DNA, was led at this trial that could potentially support the complainant’s testimony that the man who assaulted her at her apartment on February 16, 2019, was the accused.

[113]   There was no evidence led to establish how the complainant was able to observe the unfolding of events when the assaults occurred. There was no evidence to establish whether or not any lights were on or off in her apartment when she was assaulted.

[114]   I find the complainant’s over all reliability was negatively impacted by her references in her testimony to experiencing feeling “mentally ill”, hearing voices in her head and going “bizonkers” after the assaults.

[115]   The complainant testified she has experienced memory loss over many years. This circumstance negatively impacted her reliability as a witness.

[116]   I find the reliability of the complainant’s testimony was reduced in weight when she testified that she spoke to certain individuals at WESN and that it “didn’t take much” for them to believe her. Whatever she said and to whom she spoke to at WESN remains a mystery. However, whatever was discussed apparently motivated her to take action to, in her words, “protect kids in the neighbourhood”.

[117]   I find that the reliability of the complainant’s testimony was also reduced in weight when she testified that, besides M and Cst. Baskerville, she also spoke to her friends, her cousins and her nieces about the “rape”. What she discussed with her friends, her cousins and her nieces about the “rape” remains a mystery.

[118]   In these circumstances, I find it necessary to exercise caution in assessing the reliability of the complainant’s testimony respecting the identification of the man who assaulted her as she has spoken to many people, including individuals at WESN her friends, her cousins and her nieces about the “rape”. I am not satisfied that her testimony is her independent recollection and not a reconstructed recollection influenced by third parties.

[119]    I find the trustworthiness of the complainant’s testimony that it was the “same guy” that she had met on February 15, 2019, at GNH that assaulted her stands largely unsupported by other evidence.

[120]   I find there is an absence of a cogent series of probable circumstances that would establish that the evidence led by the Crown amounts to a prima facie case.

[121]   I find the testimony of the complainant in identifying the accused and as the man who assaulted her to be manifestly unreliable.

[122]   This is not to say that the complainant was not subjected to a harrowing attack on February 16, 2019. Rather, on the totality of the evidence, the accused has established a reasonable doubt that he was the man who committed the sex assault and common assault of the complainant.

[123]   I find the accused not guilty on both counts of the Information before this Court.