R. v. Mostowy

2019 BCSC 1657 R. v. Mostowy IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mostowy, 2019 BCSC 1657 Date: 20190913 Docket: 172060-2 Registry: Victoria Regina v. Kyle Christopher Mostowy (also known as Kyle Christopher Motowy) Restriction on Publication: Pursuant to s. 486.4 C.C.C. Before: The Honourable Madam Justice J. A. Power Oral Ruling Re Section 724 C.C.C. Counsel for the Crown: J. Gillings Counsel for the Accused: D. McKay Place and Date of Trial/Hearing: Victoria, B.C. September 13, 2019 Place and Date of Judgment: Victoria, B.C. September 13, 2019 [1] THE COURT: This is my decision on the application that I heard this morning. I indicated to counsel that I was of the view that an oral judgment as soon as possible was necessary in this case and that is why I am providing an oral judgment. I do reserve the right to edit for grammar or clarity. I am ordering a copy of this decision be provided to the probation officer in order to assist him or her in the preparation of the presentence report which I have already ordered in this case. My decision is as follows. INTRODUCTION [2] Kyle Christopher Mostowy was convicted by a jury of one count of sexual assault of B.F. The count, as amended on May 1, 2019, alleges that: Kyle Christopher MOSTOWY, from the 1st day of April, 2014 to the 30th day of June, 2014, inclusive, at or near Langford and Victoria, in the Province of British Columbia, did sexually assault B.F., contrary to Section 271 of the Criminal Code. [3] Mr. Mostowy has not yet been sentenced on this count, although the jury rendered their verdict on May 7, 2019. At that time, I ordered a pre-sentence report, which has not yet been prepared. The reason for that is because the parties are of the view that in order for a pre-sentence report to be prepared, it would be of assistance to the probation officer for the court to find the facts as contemplated by s. 724 of the Criminal Code. Specifically, the parties acknowledge that there is an ambiguity in the jury's guilty verdict on the issue of whether there was one or more incidents of sexual assault. The parties submit that the focus of this decision should relate only to the number of incidents as well as the circumstances that ground them. Any aggravating or mitigating factors on sentence will be determined at the time of the sentencing hearing. [4] Although I raised with the Crown and defence my concern that there is no specific provision in the Criminal Code to allow me to find facts in advance of the sentencing hearing, since the Crown and defence are in agreement that this procedure would assist the preparation of the presentence report and the sentencing hearing generally, I have agreed to proceed in this way. [5] In my view, this procedure is consistent with other decisions of this court, for example, R. v. Haley, 2014 BCSC 2250, a decision of Fitch J., as he then was, where he did so to advance the preparation of reports in anticipation of a dangerous offender hearing. Although I am doing so in this case, as I have communicated to counsel, this procedure should be rare. LEGAL FRAMEWORK [6] The task that I am undertaking is governed by s. 724 of the Criminal Code. The leading case on this procedure is R. v. Ferguson, 2008 SCC 6, where the court described the principles that govern the sentencing judge in this process. These principles in Ferguson, as developed in the jurisprudence, are helpfully summarized in R. v. Landry, 2016 NSCA 53, an interesting case out of Nova Scotia. There, at paras. 48 and 49, the court distilled the rules for a court to follow as: [48] Both before and after the 1996 Criminal Code amendments and the decision of the Supreme Court of Canada in R. v. Ferguson, the law was fairly clear: following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of the circumstances of the offence consistent with the jury verdict. A trial judge must determine the facts for the purpose of imposing sentence guided by two fundamental principles: a trial judge must be satisfied that the evidence establishes aggravating facts beyond a reasonable doubt, and the facts must not be inconsistent with the jury's verdict [49] I would distill the rules for a court to follow as: 1. The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury's guilty verdict. 2. When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or she must make their own independent determination as to the relevant facts. 3. The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed. 4. The sentencing judge may not find as fact things that were rejected by the jury's verdict. 5. For any aggravating fact, the sentencing judge must be satisfied that the evidence is sufficiently cogent to enable her to find it proved beyond a reasonable doubt. I have kept those principles in mind as I have undertaken this task today. ANALYSIS [7] The main issue before me that I must find facts on is the number of incidents of sexual assault that occurred and the circumstances of each incident. In the charge to the jury, I described six incidents alleged by B.F. to the jury as follows. At para. 115 of the charge, I commenced with this process: [115] [B.F.] testified that after the interview at the residence, where she felt some inappropriate touching occurred in the form of an unwanted massage, she rode with Mr. Mostowy on his motorcycle to the location at the end of Douglas Street towards Dallas Road. She testified that while in the kitchen area of that jobsite, Mr. Mostowy told her that she had large breasts, asked her what size they are, and told her that she needed to relax. He told her that she was too tense. He then began massaging her and touched her breasts. [B.F.] left the jobsite and returned the following Monday. [116] The next incident occurred at the same site which was referred to in the evidence as "CNS Whalen". On that occasion, she alleged Mr. Mostowy showed up when she was working on her knees and he slapped her on the "derriere". She then stood up and alleges he grabbed towards her crotch. She alleges he pulled her back towards his body and she felt he had an erection through his jeans. [117] She described a third incident where Mr. Mostowy called her residence and asked her to come to the job site after hours. He picked her up in his truck and drove her there. At the site, she testified that he grabbed her again on her breasts and crotch. [118] On the fourth occasion, Mr. Mostowy called her residence after hours and picked her up in a truck to take her to the job site. This time he was hauling a large trailer. She described similar touching. [119] There were two events at the second jobsite, described in the evidence as the "Rosemary Redden" residence in Langford. One occurred when Travis left the job site and it included pulling her into him so she could feel he had an erection. The second one occurred when she was working in the back bedroom. On the last occasion, Mr. Mostowy pulled her off the bench where she was working. He had his pants undone and his penis exposed and he tried to get her right hand to touch his penis. She said that Mr. Mostowy was interrupted by someone's arrival. She packed up her tools and left the job. [120] I have only described these incidents in the most general of ways. You should keep in mind, as I have said, that Mr. Mostowy denies that any of these events occurred. [8] As I indicated to the jury in that last paragraph, Mr. Mostowy testified in his own defence and his evidence at trial consisted of a flat denial of all of the incidents. The jury was instructed in the charge on R. v. W.(D.), [1991] 1 S.C.R. 742. It is clear from the verdict that the jury did not accept all of Mr. Mostowy's evidence and that his evidence did not raise a reasonable doubt in their mind. I reminded the jury in the charge that in order to convict Mr. Mostowy, they only needed to find all of the elements of sexual assault were met for one of the incidents. That occurred at para. 135 where I instructed: [135] If you are satisfied beyond a reasonable doubt that all of the elements of sexual assault are met for any one of the incidents, you could find Mr. Mostowy guilty of sexual assault. Thus arises the ambiguity on the jury's guilty verdict which results in this application today. [9] Based on timesheets introduced at trial and the viva voce evidence, the incidents took place between May 27 and approximately June 21, 2014 when an email between the parties was sent. This period was approximately three to four weeks and, as I indicated to counsel during argument, was not months as outlined in the indictment. [10] Having considered the evidence at trial, and the task on this hearing, I am satisfied beyond a reasonable doubt that all six incidents occurred as described by me in the jury charge. I am of the view that the arguments raised by the defence at this hearing are of minor matters that do not go to the substance of the allegations. I do not intend to address all of these arguments, but will say that B.F.'s evidence at trial was clear and compelling. [11] The arguments defence raised with respect to B.F.'s evidence on the location of the office at Charmar Crescent in relation to the jobsite, and the Rosemary Redden residence, which is on the other area of the highway in the Langford area, are, in my view, minor matters that do not undermine the compelling nature of B.F.'s evidence. The distance between those two locations, as outlined in the map evidence at trial, was not great. In my view, B.F.'s evidence was clear of the general direction of those two locations. The evidence Mr. Lansdowne gave at trial was not as unequivocal as suggested by the defence in argument today. He testified that he did on occasion leave jobsites, but could not remember the specific incident described. [12] With respect to the argument that B.F. said she had nothing to do with Mr. Mostowy after the sixth incident, however, she had emails and correspondence with him after that date. It is clear from the evidence that was because she wanted to obtain her final pay cheque. That evidence did not suggest any substantive contact with Mr. Mostowy and I conclude that evidence does not undermine her credibility generally with respect to the six incidents. [13] In summary, I am satisfied beyond a reasonable doubt that all six incidents occurred in the circumstances as outlined in my charge to the jury. I find that B.F. never consented to the incidents and conveyed to Mr. Mostowy on each occasion that they made her uncomfortable. In many of these incidents, she struggled to get away from Mr. Mostowy. [14] That concludes my decision on this application. [15] MS. GILLINGS: Thank you, My Lady. Just one issue in terms of ordering the transcript to assist the author of the pre-sentence report, I do not know if this happens automatically, but I would ask if that can be ordered on an expedited basis because, obviously, we are mindful of time -- timelines here and so if it -- [16] THE COURT: Yes, I am, and I am -- [17] MS. GILLINGS: -- could be expedited and sent as soon possible. [18] THE COURT: Because I am giving an oral decision, for the same reason on timelines, I have indicated that I am prepared to make that order, I will order it on an expedited basis. I will order that it be provided to the Crown, the defence, to me, and a copy for the probation officer. "J. A. Power, J." The Honourable Madam Justice J. A. Power