IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]          R.W.A. is charged with the sexual assault of his wife’s granddaughter, O.J., on May 30, 2020. She was then 16. Mr. A. denies any touching occurred.

[2]         Ms. J. described the events leading from her parents taking the J. children – Ms. J., her brother and her sister – to stay with their grandmother L.A. while the J. parents had a weekend camping trip.

[3]         At that time, Ms. J. was on crutches from an injury she had suffered.

[4]         The children visited with the A.’s before the brother went home. Then Ms. J. and her little sister stayed up late watching movies. Ms. A. joined them but Mr. A. did not.

[5]         Despite the very late night, Ms. J. said she and her sister joined Ms. A. for breakfast around 7:00 a.m. Afterward, Ms. J. and Ms. A. spent the day in the sunroom while the sister watched movies in the living room.

[6]         Mr. A. was outside mowing the lawn.

[7]         Around noon, Ms. J. received a text from her parents that they were coming home. They arrived shortly after to take the children home, but the children asked to stay a while longer.

[8]         Within minutes of the parents leaving the residence, Mr. A. came in from mowing. Ms. J. noted the smell of cut grass on him. Ms. J. was still standing near the kitchen where she had been when her parents left. Mr. A. asked why the children were still there. As he passed behind her, he grabbed and squeezed her left buttock for a few seconds. He then moved into the kitchen where he got a beer, and exited the house again.

[9]         Ms. J. said she was facing the living room still and so did not actually see this action. She agreed that Mr. A. would have had to grab her with his right hand. Her sister was sleeping and her grandmother was in the sunroom again.

[10]      Ms. J. also testified that Mr. A. was drinking throughout the morning and was already intoxicated at the time of the incident. By dinner time, he was quite intoxicated and behaving offensively. So Ms. J. called her parents to pick up her sister and her.

[11]      Ms. J. was surprised and the impact of what happened did not occur to her right away. After the incident, she made efforts to avoid Mr. A. This included eating in her room when family came to town and everyone came over for dinner. Eventually, she disclosed to her parents what happened.

[12]      Ms. J. was a compelling and credible witness. There were certainly discrepancies in her evidence between her account and that of the defence. Perhaps the most disturbing discrepancy is the difference between her description of her relationship with her grandmother, and her grandmother’s description of that relationship. Where Ms. J. described a close and valuable relationship, Ms. A. scoffed at the description. Ms. J. believed that relationship was reflected in the time they spent together training with Ms. A.’s horses and baking cookies. Certainly wanting to extend the stay for a longer time supports a stronger relationship than Ms. A. will acknowledge. Also, the fact that they spent hours together in the sunroom talking belies Ms. A.’s dismissive description of that relationship.

[13]      Both Mr. and Ms. A. testified. Their account is quite different from Ms. J.’s account.

[14]      Mr. A. denied the sexual assault occurred. He said he never had the opportunity and has suffered an injury which made it unlikely he could have committed the offence.

[15]      He testified that he was working on rails outside, only coming in for beer and lunch. Mr. A. denied being impaired. He said he purchases his weekend beer and spreads it out over the two days. He said he drinks about five beer per day on the weekend and none at all during the week. Despite consuming some of that beer before noon and despite the volume of beer he drinks each day, he denied he had a problem with alcohol or was impaired that day.

[16]      Mr. A. did admit he came in throughout the morning for beer which he got from the fridge in the sunroom, not the fridge in the kitchen. On each occasion, he would speak briefly to Ms. A. and Ms. J. and then carry on with his work.

[17]      Mr. A. denied touching Ms. J. and said he had a significant injury to his right hand that reduced its flexibility and sensation. The accident was horrific. His hand was nearly severed. It was reattached but left him with difficulty using the hand. As he described both the injury and the work he did on the rails, though, Mr. A. clearly had some use of the hand. As to the reduced sensation, I have no real sense of how reduced it is.

[18]      As is his preference, Mr. A. took his dinner into the living room rather than eat with the rest of the family. He denied getting drunk and obnoxious or even having conversation with Ms. J.

[19]      Ms. A.’s evidence also challenges Ms. J. She said that she picked up the children from their home the first day. Her car was too small to accommodate the crutches, so they were left behind. This matters to the narration because Ms. J. said she was on her crutches at the time of the offence.

[20]      Ms. A. agreed that she was up watching a movie with the girls and that Mr. A. did not join them. However, she said they turned the movie off at 10:00 p.m. without finishing it.

[21]      Ms. A. denied that the two girls joined her at 7:00 a.m. She said she was up at that time but Ms. J. did not get out of bed until 9:00 or 9:30, and her sister got up later. After breakfast, they finished the movie, then moved to the sunroom at around 10:00  a.m.

[22]      Ms. A. said Mr. A. was outside putting up rails in the riding area. She said he was not mowing the grass because it rained the night before. She pointed to proof of that because the J. parents ended their camping trip early. Ms. A. said Mr. A. would only come in briefly to get a beer and some food.

[23]      Ms. A. agreed that she spent the day in the sunroom with Ms. J. and Ms. J. was never out of her sight. She only grudgingly agreed that Ms. J. would have at least gone to the bathroom at intervals without Ms. A. and would be temporarily out of her sight.

[24]      Ms. A. agreed that the J. parents called around noon but denies they came into the house to discuss the girls wanting to stay longer. This is evidently key to explaining why Ms. J. was standing in the living room rather than sitting in the sunroom.

[25]      Additionally, Ms. A. said that beer was never kept in the kitchen fridge. This was an important part of Ms. J.’s narrative because she said Mr. A. went into the kitchen for another beer after grabbing her.

[26]      When addressing why Ms. J. avoided the family dinner, Ms. A. claimed it was because she had to reprimand Ms. J. for her manner of speaking to her mother. It would be astonishing if Ms. A.’s relationship with Ms. J. was as distant as she described, that she would presume to admonish her. What is even less likely is that Ms. J. would concoct such a story to be vengeful toward her grandmother for this slight.

[27]      Ms. A. also points to Ms. J. coming to her home after the incident to continue training with the horses and riding. Ms. J. said she only went in the morning before Mr. A. would be into his beer. She was also supposed to go on a cattle drive with Mr. A. which she said she would have still felt safe because of the people who would be around.

[28]      Ms. A. attempted to paint her granddaughter as a self-absorbed and spiteful girl. She was not successful.

[29]      Mr. Marr argued that the A.’s evidence was more consistent with human experience, and that Ms. J.’s evidence was embellished, inconsistent and untruthful.

[30]      Mr. A.’s drinking habits were highlighted as one of those areas. Ms. J. testified she did not like how much he drank and often avoided the time of day she knew he would be drinking. She described him as mean and demeaning of Ms. A. as he became more intoxicated. Ms. A. denied he ever did this. They both denied he had an alcohol problem. It is not difficult to see how a young person would view a person who drinks five beer a day, commencing before noon, to have a drinking problem even if that drinking only occurs on weekends. It is equally likely that Ms. A. is denying belligerent behaviours once Mr. A. embarks on that drinking. Ms. J.’s perspective of Mr. A.’s drinking is not unreasonable based on his own disclosed pattern of drinking.

[31]      All the same, it is Ms. J.’s evidence that some of her concerns over Mr. A.’s drinking was informed by what she heard her parents say rather than direct observations before the incident. To that point, she said she did not have much of a relationship with him and spent her time at her grandmother’s place with her grandmother.

[32]      Mr. Marr challenged the likelihood that Ms. J. would have been standing in the unlikely spot she was in a full two minutes after her parents evidently left the house; or that the sister could have fallen back to sleep in such a short period of time. He described it as inconsistent with human experience. I cannot agree. It is entirely within the realm of likelihood that a small child who stayed up too late could fall back to sleep in such a short period of time.

[33]      As for whether the parents stopped by the house, I find that it is much more likely that Ms. J. accurately remembered this detail better than the A. who had to piece together the two days months after the events transpired.

[34]      One area where Ms. J. likely exaggerated was about what transpired at dinner. Mr. A. did not have a history of interacting much with the girls. He liked to eat his dinner in front of the TV. He would have been well into his beer by this time. He may well have made offensive comments about the roles of women but it certainly could not have been to the degree or duration that Ms. J. described.

[35]      I did not find either of the A. to be as forthcoming as defence described. The rancour in Ms. A.’s tone and diminishment of the relationship that Ms. J. so cherished rendered her evidence unreliable. Her reluctance to admit that Ms. J. even may have made a trip or two to the bathroom eroded her reliability further.

[36]      It also does not objectively matter whether the A. kept beer in the kitchen fridge. There is no dispute that Mr. A. was in and out for beer. There is also no dispute that he came in for lunch which would presumably be in the kitchen. It is a discrepancy that does not need to be resolved.

[37]      All three elements of a sexual assault must be present for a conviction. There must be a touch. It must have an objectively sexual nature to the touch. It has to be intentional.

[38]      There is very little question that if someone grabs a person’s buttocks and squeezes them for a few seconds, it is a touch with an objectively sexual nature. To perform this act is not like a brushing or bump. It is a touch with intention. It is clear Ms. J. did not consent. Nor does Mr. A. suggest she did.

[39]      What raises a reasonable doubt is the very significant injury to Mr. A.’s hand. He can certainly still use it for activities like mowing and fixing rails. He showed some dexterity with the hand while in the witness box. However, it seems unlikely that the dexterity goes to the extent of a squeeze of a few seconds. This is especially so because Ms. J. initially described a surreal sense that she did not really even realize it had happened right away.

[40]      In addition, even if Mr. A. touched Ms. J. as he went by, he has no sensation in the hand. The touch could not have been of a sexual nature. The intention component is lacking.

[41]      I find that Ms. J. believes Mr. A. touched her sexually; that she disliked him for his drinking habits; and that she once had a very typical and fulfilling relationship with her grandmother. I accept that she engages in as much avoidance of Mr. A. that she can and that the incident has caused her trauma and suffering.

[42]      However, I find that Mr. A. has raised a reasonable doubt and I must acquit.