R. v. W.F.G.

2022 BCSC 519 R. v. W.F.G. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. W.F.G., 2022 BCSC 519 Date: 20220328 Docket: 39559 Registry: Port Alberni Regina v. W.F.G. Restriction on publication: Pursuant to s. 486.4(1) of the Criminal Code, no information that could identify the complainant shall be published in any document or broadcast or transmitted in any way. Corrected Judgment: The text of the judgment has been amended to anonymize the accused for publication purposes on August 12, 2022. Before: The Honourable Justice Fitzpatrick Oral Reasons for Judgment Counsel for the Crown: C.S. Proteau Counsel for the Accused: C.L. Hodson Place and Date of Trial: Port Alberni, B.C. November 15-19, 2021 Place and Date of Judgment: Port Alberni, B.C. March 28, 2022 INTRODUCTION [1] The accused, W.F.G., is charged with one count; namely, that on or about February 1, 2019, he sexually assaulted L.M. at or near Tofino, BC, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. Mr. G has pled not guilty. [2] The matter largely falls to be determined on the basis of the credibility of the witnesses involved in the alleged incident and the reliability of their evidence, in the context of the entire evidence at this trial. [3] The only issue is whether the Crown has proven, beyond a reasonable doubt, that the alleged conduct occurred. [4] In accordance with the standard publication ban under the Criminal Code, I have anonymized the name of the complainant. In addition, the events in question took place in a small BC community, where the identification of other witnesses may have the unintended consequences of identifying the complainant. Accordingly, in the interests of justice, I have anonymized the names of certain other witnesses, as set out below. BACKGROUND FACTS [5] L.M. is presently 21 years old. She is a member of the Clayoquot and Coast Salish First Nations. [6] L.M. lived most of her life in the Ty-Histanis Indigenous community near Tofino. [7] L.M. has a large extended family, who also lived or live in Ty-Histanis. She saw these family members at various social events in the community, including parties, dinners and potlucks. L.M.'s family members included Mr. G, whom she described as her "uncle". Another family member is the other witness at this trial, A.G., who is L.M.'s cousin and Mr. G's niece. [8] L.M. had known Mr. G for all of her life and had seen him around either Ty-Histanis or Tofino when she was there. [9] In late January 2019, L.M. was 18 years old and living in Mainland BC. Around that time, she returned to Ty-Histanis for two weeks to visit family. L.M. stayed with her parents during her stay. [10] The broad facts concerning the alleged incident are not in dispute. [11] All of the persons involved who gave evidence at this trial--L.M., Mr. G and A.G.--were drinking heavily and admittedly intoxicated during the day and/or into the evening of January 31, 2019. Afterward, all three of them fell asleep or passed out in a small vehicle parked outside of a residence in Ty-Histanis. In the morning of February 1, 2019, all three were awake and continued to interact with each other. [12] The evidence is very much conflicting as between the witness' various accounts, in both minor and major aspects. THE DIRECT EVIDENCE [13] The Crown's evidence consisted of the testimony of L.M. and Cst. David Cerniuk of the Tofino RCMP, supplemented by certain admissions of fact and photographs and some text messages. [14] The defence witnesses included A.G. and Mr. G. [15] As will become apparent below, the recounting of events of that evening and early morning as between the witnesses differs greatly. Crown's Evidence [16] In the evening of January 31, 2019, L.M. went over to the house of her two teenage cousins who lived only a short distance away in Ty-Histanis (the "House"). The adults living in the House and present at the time were other relatives of L.M., A.G.'s parents. [17] Also present at the House were A.G. and J.G. J.G. is Mr. G's son and also L.M. and A.G.'s cousin. [18] L.M.'s intention was to stay at the House that night. [19] L.M.'s recall of the start of that day is not clear. She believes she may have walked over to the House with other people but she is not sure. She says that they began smoking marihuana and drinking vodka coolers (the "Coolers"). [20] When L.M. arrived, many of the cousins and the adults either started or continued the party. L.M. mostly spent time in her two teenage cousins' bedroom with them while drinking and playing games. While there, L.M. smoked about four marihuana joints and consumed a number of Coolers (she thinks about 12) and some tequila shots. [21] L.M. describes that, at the time, she was a heavy drinker. L.M. is a petite woman, with a height of 4'11". She currently weighs about 115 lbs or about 52 kg and says she would have been a little heavier in January 2019. Having said that, L.M. said that she never blacked out but instead paced herself. [22] Later that evening, L.M. describes that they had finished all the Coolers and almost all of the bottle of tequila. Around this time, when the persons in the House were running out of alcohol and/or cigarettes, a group (which included L.M. and her two teenage cousins, J.G. and A.G.) decided to go for a walk to the house of L.M.'s grandmother, A.N.G. A.N.G. is Mr. G's mother and also A.G.'s grandmother. [23] By the time the group was leaving the House, L.M. was very intoxicated. She was staggering and she reports that she was blacking out at times from the consumption of alcohol. She has some recall of that night, as above. She has only a vague memory of leaving the House to get more cigarettes; however, she does recall needing help to put her shoes on for the walk to A.N.G.'s house. She described that she needed her teenage cousins to walk on either side of her to assist her. [24] L.M. readily acknowledges that at the time she was "black out drunk" and unable to remember some details. [25] L.M.'s recall after arriving at A.N.G.'s house is also vague. She remembers seeing the outside of the house. She also recalls then seeing her grandmother's small white vehicle parked in front. [26] Photographs taken of A.N.G.'s vehicle are in evidence and show a very small car with a bench seat in the back and two bucket seats for the driver and front passenger (the "Vehicle"). [27] L.M. describes that she threw up. She did not go into the house. She says that she recalls two people helping her into the backseat of the Vehicle, on the passenger side. She then recalls grabbing a cigarette while sitting in the back seat of the Vehicle and smoking it. [28] L.M. either then fell asleep or passed out in the backseat of the Vehicle. [29] L.M. then says that she later woke up. She says A.G. was in the front driver seat and passed out. L.M. recalls that she had a cigarette in her hand. [30] L.M. says that, when she woke, she had her pants and underwear around her ankles. She recalls seeing Mr. G and that he was drinking from a wine bottle. L.M. states that she didn't feel right. She says that she was laying in the back seat and that Mr. G was on the front passenger seat that was reclined toward the back. She said he was laying on his belly facing her. [31] L.M. states that Mr. G was placing his fingers in her vagina and licking her vagina and the surrounding area. She states that her shirt had been lifted and her bra was above her breasts. L.M. says that Mr. G was running his hands over her chest. [32] L.M. describes that Mr. G was wearing a white shirt and, she thinks, jeans. [33] L.M. cannot recall if Mr. G ejaculated or not. She only thinks that she "felt" his penis during the incident but her evidence on this point was vague. [34] L.M. says that she told Mr. G to stop. L.M. also says that she told Mr. G that she was his niece and that what he was doing to her was wrong, that they were family. She recalls trying to wake A.G. up for help; however, A.G. was still unresponsive in the driver's seat. L.M. tried to touch A.G. to get her to wake up but she could not reach her. She was only able to reach the seat belt on the driver seat right side. She was not successful in waking A.G. [35] L.M. recalls that the incident ended when she kicked Mr. G's shoulder or head saying to "get off her". She says that Mr. G stated that she had given him consent. L.M. denied ever giving Mr. G consent. [36] After the incident, L.M. remained in the Vehicle with Mr. G. He moved his seat up from its reclining position. She says that she was crying by this time. Mr. G passed a few cigarettes to her. When L.M. pulled her underwear and pants up, she says her vagina felt "wet and gooey". [37] L.M. says that A.N.G. came out of the house not long afterward. [38] L.M. estimates that this incident occurred at night since it was dark outside but it was starting to get bright outside. She estimated that the duration of the incident with Mr. G was less than three hours but longer than an hour. [39] After the incident, L.M. went back to the House. She thinks that they drove there with A.N.G. driving the Vehicle. [40] While back at the House, L.M. says she told J.G. a little of what had happened. [41] Later that day, L.M. travelled in the Vehicle to Ucluelet with A.N.G., Mr. G and J.G. They went there to buy alcohol when the liquor store opened. [42] After the trip back to Tofino, J.G. suggested that they continue to party in Ahousaht, another nearby Indigenous community accessible by boat. L.M. declined, saying she wanted to go home. [43] L.M. then walked back home to her parent's house. She took off all of her clothes. By this time, all of L.M.'s makeup had worn off from her crying. She also described having a little cramping and bleeding after she got home. [44] Within two days of the incident, L.M. reported the matter to the Tofino RCMP. L.M. gave a statement to the RCMP and the officers took her clothes and arranged for her to have an examination at the local hospital. [45] L.M. also states that she told two friends about the incident "right away". Part of the Crown's evidence are photographs of certain Facebook Messenger texts from L.M. to K.F., one of her friends. Counsel agree that these text messages are not evidence for the truth of their contents, just evidence that they were sent and on what date. Those text messages read in part: Its like that, but i was actually really scared.. and fucken balling my eyes out, i was sore down there that i was bleeding.. i kicked my uncle off me, he had his clothes off n mine pulled off.. but he was just using his hands.. but i was still scared.. [A.G.] doesnt remember she was blacked out.. I just remember drinkin n then drinking n wakinng up to fuck face hurting me.. n me crying with my make up all over., [46] Within two weeks of the incident, L.M. says she told her grandparents. [47] Constable Cerniuk of the Tofino RCMP describes that he took L.M.'s statement on February 7, 2019, some six days after the incident. He described that L.M. was nervous, anxious, emotional, upset and shaken during her entire time at the detachment. Defence's Evidence [48] The defence called A.G. and Mr. G. [49] A.G. is 30 years old and she was 28 years old at the time of the incident. She is from the Tla-o-qui-aht First Nation. Her siblings are L.M.'s two teenage cousins that she spent time with on the night of the incident. [50] A.G. has known both Mr. G, her uncle, and L.M., her cousin, all of her life. [51] The day before the incident, A.G. was in Port Alberni for a driving lesson. She was accompanied by her grandmother, A.N.G., and A.G. was using the Vehicle for her lesson. [52] After her return to Ty-Histanis, A.G. and A.N.G. drove the Vehicle to pick up Mr. G at a bar in Tofino. A.G. confirmed that Mr. G was very intoxicated. They drove back to A.N.G.'s house. [53] As with L.M., A.G.'s evidence about that day was also, at times, equally vague and confusing, no doubt arising from her consumption of alcohol. [54] A.G. describes that she and J.G. were "hanging out" and went to find other people to hang out with for the night. She says they walked over to L.M.'s house and asked if she wanted to hangout and she said yes. She describes that she, L.M. and J.G. walked over to A.N.G.'s house where they were all drinking in the Vehicle, where apparently Mr. G had remained after being picked up at the bar in Tofino. [55] At this time, A.G. describes that Mr. G was "crashed out" and still "pretty intoxicated" but seemingly woke up at times while in the Vehicle. She then describes that J.G. had an argument with his father, Mr. G, resulting in her, J.G. and L.M. going back to the House. A.G. can't recall what the disagreement was about. [56] While A.G. was in the House, she was aware that L.M., J.G., and L.M.'s two teenage cousins she spent time with on the night of the incident were somewhere else in the House. [57] At some point, A.G. describes that she was craving cigarettes. She, J.G. and L.M. then walked over to A.N.G.'s house. A.G. retrieved her cigarettes from the house and they then sat in the Vehicle drinking Coolers and smoking cigarettes. By that time, Mr. G had revived or was "back up" and was also drinking Coolers and smoking in the car. [58] A.G. described that while walking to A.N.G.'s house, she was "buzzed". She thinks L.M. seemed alright, although maybe "buzzed" as well. [59] In the Vehicle, A.G. was in the driver's seat, Mr. G was in the front passenger seat, J.G. was behind the passenger seat and A.G. is "pretty sure" that L.M. was just behind her in the back seat. [60] A.G. says that, at some point, J.G. left, leaving her, Mr. G and L.M. in the Vehicle. A.G. says they were there a couple of hours. She recalls offering to walk L.M. home, but she didn't want to. She describes that Mr. G was still drinking with them, although he was passing out from time to time. [61] A.G. says that they began to run out of alcohol. She was then sleepy and in a "high buzz". A.G. also says that she later woke up that night and saw both Mr. G and L.M., who were both fully clothed. A.G. went outside to use the bathroom. While she was in the bathroom, she heard L.M. screaming for help. A.G. says she went back to the Vehicle, after having been gone no more than five minutes. She saw L.M. in the Vehicle but Mr. G out of the Vehicle. Both had their clothes on. A.G. asked them what was going on, but she then gave no evidence as to what response, if any, was offered by either L.M. or Mr. G. A.G. did not see that anything was happening as far as she could discern. [62] A.G. got back into the car. It appears Mr. G did not, so A.G. asked L.M. "what's going on?" and said maybe she should sit in the front passenger area with her. A.G. asked L.M. if she wanted to be walked home, and she said no. A.G. then says that she was tired from her trip to Port Alberni so she "crashed" and fell asleep. [63] A.G. describes that, during the night, she woke up and looked back to see if L.M. was fine. L.M. was still in the back seat laying down with her clothes on. By this time, it appears that Mr. G was back in the front passenger seat of the car and passed out or asleep. A.G. says that she didn't hear any screaming or yelling by L.M. or that she was being jostled or shaken while asleep. [64] When A.G. woke the next morning, Mr. G was up and asking if she wanted to go clam digging. A.G. asked L.M. if she wanted to go home, to which she said no. [65] Afterward, the group--A.N.G., Mr. G, A.G. and L.M.--travelled in the Vehicle to Ucluelet. She could not recall what they did there. [66] Once back in Tofino, Mr. G, A.G. and J.G. headed off to Ahousaht for the clam digging. [67] Mr. G's evidence is as follows. [68] On January 31, 2019, Mr. G was staying on a couch at his parent's house since he had nowhere to stay of his own. A.N.G. is his mother. [69] His mother gave him a ride into Tofino around 9:00 a.m. or 10:00 a.m. that day. While in Tofino, he hung out with a few friends on the main street where people mingle at a street corner. His plan was to go to the bar as soon as it opened after noon. [70] Around 1:00 p.m., Mr. G and his friend "Snapper" arrived at the bar. Mr. G planned to drink and play pool that day until his mother got back in town from Port Alberni and could pick him up. Mr. G began with a shot of Fireball to "get started" and then proceeded to consume about seven beers. [71] Around 5:00 p.m., A.N.G. and A.G. picked up Mr. G just outside the bar in the Vehicle. Mr. G described that he was "tipsy" or intoxicated. Before they left Tofino, Mr. G went to the liquor store next door to the bar and picked up a bottle of red wine and a six pack of Coolers. He estimates that he consumed some wine and three of the Coolers before they got back to A.N.G.'s house. [72] The group returned to A.N.G.'s house; however, this house is a "dry house" and Mr. G did not want to enter the house since he was drunk. So, after obtaining some cigarettes from the house, he went into the passenger side of the Vehicle by himself, drank more alcohol, smoked some cigarettes and "crashed". [73] He apparently woke up at some point and smoked a cigarette and consumed half of one of the three left over Coolers. He says no one else was in the Vehicle at the time. He says he then went to the bathroom and came back to the Vehicle and fell back asleep. [74] Mr. G then says that he woke up again. This time, A.G. was sleeping in the driver's seat and L.M. was asleep in the back seat. At one point, Mr. G also said that J.G. was in the back seat. Mr. G says he smoked a cigarette and went back to sleep. He says he went to the bathroom this time also. [75] Mr. G says that he woke up for the day in a panic around 9:00 a.m. He says that he was frantic to get organized to go clam digging in Ahousaht. He also confirms that a group then drove to Ucluelet to buy liquor. He says that A.N.G. was driving, he was in the front passenger seat and A.G. and L.M. were in the back seat. [76] Afterward, Mr. G says they drove to the House to pick up J.G. who was also coming to Ahousaht. [77] Mr. G is adamant that, while the three of them were in the Vehicle that night and until he woke up to go clam digging, he didn't have any interactions with either A.G. or L.M. He says that he only saw them sleeping in the Vehicle when he woke up the second time. [78] Mr. G denies that he sexually assaulted L.M. that night in the Vehicle. RELEVANT AUTHORITIES [79] In R. v. G.F., 2021 SCC 20, the Court discussed the elements of the offence of sexual assault, as follows: [25] The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: [R. v. Ewanchuk, [1999] 1 S.C.R. 330] at para. 25; R. v. Chase, [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90. [80] As stated above, no issues relating to consent arise here. Counsel agree that the sole issue is whether the Crown has proven beyond a reasonable doubt that Mr. G touched L.M. in the manner she described. Defence counsel agrees that, if the evidence at trial establishes that Mr. G touched L.M. as she describes, guilt will have been proven. [81] Both counsel agree that this case requires the approach dictated in R. v. W.(D.), [1991] 1 S.C.R. 742. By that authority, I must first address whether Mr. G is to be believed. If so, he must be acquitted. Secondly, even if I do not believe the testimony of Mr. G, but I am left in reasonable doubt by it, I must acquit. Thirdly, even if I am not left in doubt by Mr. G's evidence, I must still consider whether, on the basis of the evidence that I accept, I am convinced, beyond a reasonable doubt, that Mr. G is guilty as charged. [82] Counsel also refer to R. v. H. (C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.), where Wood J.A. added into the W.(D.) analysis the further step that if, after a review of the evidence, the trier of fact is unable to decide who to believe, the accused must be acquitted. [83] This sexual assault case raises the not so unusual challenge in assessing the evidence in the face of two very conflicting versions presented by the complainant and the accused--colloquially known as the "he said/she said" scenario. In that event, I am mindful of the caution from many case authorities that this is not a credibility contest: see R. v. J.M., 2021 BCCA 263 at para. 46. [84] As Justice Warren said in R. v. E.A.G., 2020 BCSC 1691, an accused cannot be found guilty simply because the Court concludes that the complainant's version of events is likely to be true: [185] Sexual assault cases often involve "he said/she said" scenarios, where the complainant and the accused are the only witnesses to the alleged criminal conduct. In these kinds of cases, it is vitally important that judges do not decide that an accused is guilty merely because the judge concludes that the complainant's version of events is more likely to be true. In other words, a criminal trial is not a credibility contest in which an accused must present a more credible version. Deciding a "he said/she said" case merely on the basis of which version is more likely to be true would misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit the accused if the evidence as a whole raises a reasonable doubt about guilt. In other words, it is possible that a judge might find the complainant's version of events to be more believable but still have a reasonable doubt about what actually happened. In that situation, the benefit of the doubt must go to the accused. DISCUSSION AND ANALYSIS [85] Before embarking on an analysis of the witnesses' evidence, I am aware of the need to assess that evidence from the point of view of both credibility and reliability. In J.M., the court stated: [53] The judge cited case law analyzing the differences between credibility and reliability. She set out the principles guiding her as follows: [89] 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'. It is a task that can be particularly daunting where a court must assess the credibility of two witnesses whose testimony is diametrically opposed. [90] Reliability and credibility are not the same. Reliability involves the accuracy of the witness's testimony. It engages consideration of the witness's 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. [91] 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 to a lesser extent (f) the witness's demeanour while testifying, meaning not so much what is said but how it is said. [92] 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 (ONCA). [Emphasis added.] [86] Defence counsel have addressed the issues in the context of the W.(D.) steps, as will I. [87] The first task is to determine whether I believe Mr. G's denial of the incident and, if not in respect of some or all of it, whether in any event I am left in any reasonable doubt, arising from a consideration of the evidence as a whole: J.M. at paras. 44-45. [88] Defence counsel argues that Mr. G was unshaken in his denial of any sexual assault upon L.M. He describes his client as calm and measured in his evidence. [89] I agree that Mr. G was unshaken in his denial. However, more serious questions arise in respect of his evidence. [90] In Mr. G's direct testimony, inconsistencies arose. In direct, he stated that he had a plan to go the bar when he went to Tofino; yet, in cross-examination, he became argumentative in distancing himself from any regular drinking practice while also conceding that he would often pass out in the Vehicle after drinking. In that context, he then denied having any plan to end up in the bar, which I find is false. He also gave conflicting evidence concerning J.G.'s presence during the trip to Ucluelet. [91] While many of these conflicts are understandable given his state of intoxication, Mr. G still purported to have a "pretty good mind" in terms of his ability to recall all aspects of that evening almost three years ago. His answers to many questions were, as the Crown describes, long and rambling, often at times unresponsive to the question. [92] I agree with the Crown that, overall, Mr. G's evidence was, for the most part, essentially a specific recitation of the events of that day and evening, designed to convey that Mr. G had great recall of all events that day. However, in light of the state of his admitted intoxication, common-sense would strongly suggest that his memory could not have been "perfect". By all accounts, including his own, Mr. G was heavily intoxicated throughout the time when he was picked up at the bar and until he woke to go clam digging. His purported memory of every event that day, presumably given to bolster his credibility at this trial, is implausible to say the least. [93] In contrast, both L.M. and A.G., who were also drunk, very much conceded where they had only vague memories or where there were gaps in their recall. [94] I have also considered Mr. G's criminal record which he readily acknowledged in cross-examination. As set out in R. v. Corbett, [1988] 1 S.C.R. 670 at paras. 21-24, such a record may be used for the purpose of assessing the credibility of the accused but not to allow the Court to engage in propensity reasoning. [95] Mr. G's record includes many driving offences and a dated sexual assault. In my view, this record is of little assistance in the credibility analysis given the nature of and date of the offences. I decline to place any weight on that record. [96] I conclude that Mr. G was not a credible witness, in terms of his own evidence. Simply, I do not believe his blunt denial of the events in question. Suffice to say, this does not mean that I find that he is guilty, or that the conduct as alleged in fact happened. It simply means that I disbelieve his account of the events. [97] Even though I have rejected Mr. G's denial of the allegations, I have also considered Mr. G's evidence in the context of the entirety of the evidence at this trial as to whether a reasonable doubt is raised: see R. v. Redden, 2021 BCCA 230 at paras. 80-81. [98] As I will describe in more detail below, I accept that Mr. G spent some waking time while in the Vehicle while A.G., J.G. and L.M. were also present and drinking. I reject Mr. G's statement that he had no interactions with A.G. or L.M. while he was in the Vehicle that night. That evidence is contradicted by both A.G. and L.M.'s testimony, evidence that I accept. [99] As the Crown argues, Mr. G attempted in his evidence to distance himself as much as possible from L.M. that evening. Accepting that both women were with Mr. G in the Vehicle together at times over that evening, when he was awake, it is implausible that Mr. G had absolutely nothing to do with L.M. Yet, he stated that he never touched her, they never spoke to each other, he was never close to her at all and he had no interactions with her whatsoever, despite that she was a family member who he considered to be his "niece" and they were spending time together in a very small space. [100] In summary, I do not find Mr. G's evidence credible. I also do not find that his evidence, considered in the context of all of the evidence at this trial (including my discussion below concerning the frailties of L.M.'s evidence), leaves me with any reasonable doubt. At this juncture, I bear in mind that our constitution mandates that Mr. G still be presumed innocent: Canadian Charter of Rights and Freedoms, s. 11(d). [101] I will now consider the evidence of A.G., again in the context of the entirety of the trial evidence. [102] My first observation of A.G. and her evidence is that she displayed a significant bias against L.M. In addition, A.G. also based her skepticism of L.M.'s account based on what I conclude were irrelevant considerations. [103] Firstly, both A.G. and L.M. said that L.M.'s allegations had caused a rift between A.G. and L.M, who had been close until the incident. A.G. also mentioned that she was close to Mr. G, since he was a father figure to her while she was being raised. Clearly, A.G. had chosen sides in supporting Mr. G in the face of L.M.'s allegations. [104] Making such a choice is not, in and of itself, a reason to question evidence by the person making that choice. However, in A.G.'s case, my sense was that her choice to favour Mr. G was the lens or filter through which she gave her evidence that belied any real effort to provide a fair and honest recounting of the events. That alone would give me a basis upon which to question A.G.'s credibility. [105] Secondly, A.G. was clear in her evidence that she disbelieved L.M.'s account, and had done so from "Day 1". A.G. did so on the basis of her assessment that L.M. had not acted the way she "should have" if those allegations were true. A.G. was of the view that it was "odd" for L.M. to have reacted in the way she did, presumably referring to L.M.'s actions or demeanour later in the Vehicle and in making the trip to Ucluelet later that morning. [106] Time and time again, trial judges are reminded that factual findings must not be based on assumptions or stereotypes about how a person is expected to act in a certain way, particularly in relation to issues of a sexual nature. As the Crown notes, a recent discussion of the appropriate cautions and principles is set out in R. v. Pastro, 2021 BCCA 149 at paras. 40-45 and 49-52 and R. v. Greif, 2021 BCCA 187 at paras. 60-62, leave to appeal ref'd 2021 CarswellBC 3471. [107] Obviously, A.G. is not the trial judge. However, her clear adoption of these same myths and stereotypes also leads me to conclude that her evidence must be viewed with caution. [108] A.G.'s bias against L.M. and her bias in favour of Mr. G was at times evident, particularly when she argumentative and evasive. For example, she would not even concede that Mr. G is quite a bit heavier than L.M., a fact that was clearly evident at this trial. [109] All of the above factors lead me to conclude that A.G.'s credibility is questionable. [110] Also, there are issues with the reliability of A.G.'s evidence. As with L.M., A.G. readily concedes that her memory of that evening was not accurate or "blurry", given her state of intoxication. For example, she was unclear whether she saw Mr. G drinking wine that evening or even whether she had shared some of it. [111] It is difficult to reconcile A.G.'s account of hearing L.M. screaming for help with either the account of L.M. or Mr. G. Neither of them mentioned any such event. Nevertheless, I consider it significant that A.G. recounted this at all, as it provides a factual basis for the inference that even A.G. recalls that something happened, although I do not speculate what that was. There is no simply no explanation arising from this evidence as to why L.M. would be screaming for help while she was in the Vehicle with Mr. G, as recounted by A.G. It is also entirely possible that this event related by A.G. occurred but L.M. does not recall it--and Mr. G does not recall it either. [112] Even so, it remains the case that L.M.'s version of the events in the Vehicle with Mr. G can stand independently of this scenario related by A.G. A significant aspect of A.G.'s evidence is her admission that she was not awake in the Vehicle for lengthy periods of time. She had no idea how long it was, but concedes that it could have been anywhere from 1-6 hours. This is consistent with A.G.'s statement that she was tired that day and her state of intoxication. In addition, A.G. conceded that she is hard of hearing. [113] The above factors are capable of supporting L.M.'s narrative about being assaulted by Mr. G while A.G. was very close by in the driver's seat, while either passed out or asleep after a long day of driving and drinking. [114] I will now turn to consider the evidence of L.M., again in the context of the entire body of evidence. As an initial observation, I will state the obvious--this Court does not require any corroboration of L.M.'s evidence for a conviction, as set out in s. 274 of the Criminal Code: see R. v. Demedeiros, 2018 ABCA 241 at para. 9; aff'd 2019 SCC 11. [115] The defence takes the overall position that L.M. is lying and making up her story and should not be believed. [116] I have carefully considered L.M.'s evidence and agree with the Crown that she was a credible witness. L.M. struck me as an intelligent young woman who was making an honest attempt to recount the events of that day and evening. She was also readily conceding those details that were less than clear or not in her memory because of her level of intoxication and perhaps the lapse of time. [117] L.M. was clearly attempting to recall what she considered to be a very traumatic event, one that she says she still lives with to this day. In my view, there was nothing in her evidence to suggest that she was fabricating her recall of the events. L.M. did not display any animus or malice toward Mr. G that might ground such an accusation--to the contrary, L.M. considered that Mr. G was a close family member, no doubt leading to her emotional devastation by what she perceives as a violation of the trust in their prior relationship. [118] I readily concede that defence counsel made no submissions concerning the issue of motive or absence of motive on the part of L.M. to lie about this incident. This issue of motive or lack of motive was raised only by the Crown. [119] I agree that the absence of any such evidence as to motive does not stand as proof that L.M. in fact had no motive to lie or that she is telling the truth: R. v. Swain, 2021 BCCA 207 at paras. 31-32. The lack of any evidence of any apparent motive to lie on the part of L.M. is only one factor that I have considered in assessing her overall credibility: Swain at paras. 29-30. [120] I also acknowledge that Mr. G was not required to prove that L.M. had a motive to lie, as this would impermissibly reverse the onus of proof: see Greif at para. 41 and Swain at para. 33. [121] In rejecting that L.M. had fabricated her evidence, I rely--but only in part--on L.M.'s actions after the incident in reporting the matter to the Tofino RCMP and also, sending the Facebook Messenger texts to K.F. In this respect, I wish to emphasize that I am only referring to these events in assessing L.M.'s credibility in the face of Mr. G's counsel's accusations that she is making the entire matter up under the narrative exception. [122] I do not refer to this evidence concerning the post-event conduct of L.M. for the purpose of supporting that L.M. is more likely to be telling the truth or as corroboration of L.M.'s evidence as to the incident. I refer to the statements of the court in Greif as providing the necessary framework to consider this evidence: [69] In the paragraphs leading to para. 67 (the paragraph most impugned by the appellant), the judge was careful to set out the permissible uses of the complainant's prior consistent statement. He noted in particular that prior consistent statements can be used to provide context about how the matter came to the attention of the police, and as circumstantial evidence relevant to assessing the credibility and reliability of the complainant's testimony. He stated several times that the statement could not be used for the truth of its contents or to corroborate the complainant's testimony. In my opinion, his statement of the law and his use of the statement in this context accorded with the law as set out by Chief Justice Bauman in his dissenting reasons in R. v. Langan, 2019 BCCA 467, later adopted by the Supreme Court of Canada in reasons indexed as 2020 SCC 33: [99] It is well‑established that prior consistent statements may be used to assess credibility. Proper use turns on whether the statements are used to find a witness credible because of specific, permissible inferences of credibility, such as: "evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint" ([R. v. Khan, 2017 ONCA 114] at para. 43[, leave to appeal ref'd [2017] S.C.C.A. No. 139]); understanding "the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness" (R. v. F. (J.E.), 1993 CanLII 3384 (Ont. C.A.) at 476, cited in [R. v. Dinardo, 2008 SCC 24] at para. 38); or assessing if there is "evidence that an individual has a motive to lie" (R. v. Stirling, 2008 SCC 10 at para. 12). (See also [R. v. Singh, 2021 BCCA 172] at paras. 32-34, and R. v. Steele, 2021 ONCA 186 at paras. 89-95 (per van Rensburg J.A., concurring), finding the trial judge had erred by failing to consider the admissibility of the complainant's prior consistent statements under the narrative as circumstantial evidence exception and as post‑event demeanour evidence. The majority agreed with Justice van Rensburg on this point: Steele at para. 44.) [70] Similarly, it is well established that a complainant's post‑event emotional condition may be considered in evaluating their credibility: R. v. Varcoe, 2007 ONCA 194 at para. 33; R. v. Daley, 2008 BCCA 257 at para. 10; R. v. Munt, 2012 BCCA 180 at para. 22; R. v. Lopez, 2015 BCCA 294 at para. 29; R. v. J.S.S., 2016 BCCA 411 at para. 47. See also R. v. C.M.M., 2020 BCCA 56 at paras. 144-147 and 153-154. [123] Leaving the issue of L.M.'s credibility aside, the more difficult question is whether L.M. stood as a reliable witness. Defence counsel contends L.M.'s evidence was confusing, incredulous and very problematic. He contends that the inconsistencies in L.M.'s evidence can only lead to the conclusion that her evidence is wholly unreliable as a basis for conviction. [124] I would reiterate again that I have considered the following evidence by L.M. as part of the totality of the evidence, under the second branch of W.(D.) in assessing whether reasonable doubt arose from Mr. G's evidence even though I rejected it under the first branch of W.(D.) [125] The evidence clearly establishes that L.M. was severely intoxicated in the evening before the alleged incident, a fact that affects the reliability of her evidence: Demedeiros at paras. 3-4 and 9. Not surprisingly, although L.M. provided substantial details about what she recalled that evening and early morning, inconsistencies arose in her evidence as to the events leading up to the incident. [126] Defence counsel points to various inconsistences in L.M.'s evidence, which I have summarized as follows: a) Details regarding how the plans for the evening were made in terms of who arranged it and in particular, how L.M. was invited to get involved; b) How L.M. got to the House originally: walking or riding a bicycle; and c) Details around the walk to A.N.G.'s house from the House and what happened when they arrived and before L.M. passed out in the Vehicle. [127] I acknowledge that L.M. did get flustered and gave confusing testimony on the above issues. However, in my view, those inconsistencies are understandable given L.M.'s intoxication. In the context of the overall evidence, in my view, they are insignificant and unrelated to the alleged sexual assault. At its core, L.M.'s testimony was that they were partying at the House and drinking and smoking marihuana there, resulting in her becoming severely intoxicated before they headed to A.N.G.'s house. L.M. also recalls interacting with Mr. G in the Vehicle where she recalled that he was drinking and smoking cigarettes. This evidence is generally confirmed by A.G. As such, while I have considered these inconsistencies, they do not detract from my overall assessment of the reliability of L.M.'s evidence. [128] Of greater significance are the alleged further inconsistencies arising from L.M.'s recounting of the sexual assault itself. [129] During cross-examination, L.M. professed to have a clear recall of the sexual assault in term of how it had occurred, particularly given that it was a traumatic event. During cross examination, L.M. was then tested on those details and the defence points to various inconsistencies that arose as being extremely problematic. Those inconsistencies are said to arise from the statement L.M. gave to Cst. Cerniuk on February 7, 2019 and the Facebook Messenger texts to K.F. [130] In direct, L.M. stated that Mr. G was in the front passenger seat, which was reclined, with his stomach to the back of the seat. L.M. stated that, from there, Mr. G assaulted her with his hands or fingers and tongue. During cross-examination, L.M. confirmed the positioning of Mr. G at the time. She also recalled that, when she woke, she was laying across the back seat with her left leg stuck in some fashion. [131] Yet, in cross-examination, L.M. was confronted with the Facebook Messenger texts where she stated that Mr. G was only using his hands. She did not mention to K.F. that Mr. G was also using his tongue. L.M.'s explanation is that she did not want her friend to know everything about what had happened. In my view, this explanation is plausible where L.M. may not wish to disclose all of these very personal and private details to a friend, particularly over Facebook Messenger. [132] Also, L.M. was confronted with various comments that she made in her RCMP statement concerning the positioning of Mr. G as being "on top" of her. In that statement, L.M. said: I don't know if it's [B. or B.G.] but he's the one who hurt me and he, he was on top of me with his pants down and he had my pants down and um my pants, like I, I felt gross like my whole, my whole bottom half of my body was wet and he, I was kicking him and I was like get off of me, get off of me and then I started punching him in the face and he was like what are you doing? You let me do this to you. I gave you, you gave me your consent and I was like I was drunk and I was just screaming and crying and I pulled my pants back up and I, I got out of the car and I didn't know what to do and I, he ended up getting back into the front seat and I sat in the back seat and I was just sitting there crying until my sister woke up and I even tried shaking her and everything and even when I screamed at the top of my lungs when my Uncle was hurting me he, she didn't even wake up or budge. [Emphasis added.] [133] L.M. denied that this represented two different versions of the sexual assault. Despite the vigorous cross examination on this point, I am not convinced that this truly represents two very different versions of the incident. [134] To fully understand the physical environment within the Vehicle, one needs to look at the photographs of the Vehicle and appreciate the very small space within the interior. It would have been physically possible for Mr. G to have his stomach against the back seat of the front passenger seat such that he was leaning into the back seat--or as L.M. put it, "hovering" over her--so that she described in her statement that Mr. G was "on top" of her while her left leg was pinned in place. It is also plausible that it was the reclining front passenger seat that was the reason why her leg was pinned down. L.M. did not say in her statement that Mr. G was in the back seat. It is also very possible that Mr. G's positioning on the front passenger seat allowed him to stretch out more such that he could reach L.M.'s genital area with his tongue, rather than him being in the back seat itself. [135] Defence counsel also contend that L.M. was inconsistent in her evidence as to whether Mr. G penetrated her with his penis. Again, in direct, L.M. had some vague recall that she had perhaps "felt" Mr. G's penis. In cross-examination, she stated she did not know whether Mr. G had penetrated her. In her RCMP statement, L.M. also said: I was it was like two he had to been hurting me for at least three or four hours because it was still dark and I would like he''d stop and then he''d like try again and every time he tried to get on top of me I fucking I kicked him off. ''Cause he tried put his thing inside me and that''s why I couldn''t breathe because all of his body weight''s fucking going on me. So, I just, I kept kicking so all he did while I was crying was just stick his fingers inside me but it really hurt and for a little bit he even, he was, he just had his hand on my body ''cause I couldn''t really move anyways because my was stuck and he, he was just hurting me my pants were on they were just pulled down. Like I had, I had all my clothes on but my bra was pushed up and above my boobs and my underwear and my pants were down and when I woke up I just started kicking and hitting Billy ''cause he was on top of me and like I said it was hard for me to breathe and I was just so panicky I didn''t know what to do but he just kept me laying there and then he stuck (cough) his penis inside my vagina for a little bit and it fuckin'' I was screaming and I was like [A.G.] please help me and I was, I kept screaming that and um he wouldn''t get off and then I finally just used all, used all my muscles and then I pushed him off me and then I said I''m done, I'm fuckin'' I don''t want you to do this to me ''cause I didn''t give you consent [Emphasis added.] [136] The Crown agrees that L.M.'s failure to mention any penile penetration in her direct evidence stands as a major inconsistency. [137] Again, in my view, the overall evidence provides some context and explanation for this discrepancy. Constable Cerniuk's evidence was that L.M. was in a very emotional and traumatic state when she gave that evidence. It is, of course, generally true that more recent recounting of events proves to be the more accurate, rather than a recitation years later. [138] Another salient fact is that L.M.'s recollection of what was happening when she immediately woke could very likely have been clouded by the fact that she was coming out of a severely intoxicated or somnolent state after some time and was perhaps still intoxicated to a degree. L.M. stated in her evidence that as she was waking, she "didn't feel right" and she didn't know how to explain the physical feeling she was having at the time. This statement conveys the sense that she was only beginning to have a sense of her surroundings and what was happening to her from the time she woke. [139] However, L.M.'s intoxication does not disqualify her evidence entirely. The Crown refers to the comment of Judge Brooks in the unreported British Columbia Provincial Court decision of R. v. Charlie (17 July 2019, Port Hardy 17162-1) where the court was similarly addressing the evidence of a very intoxicated complainant as to a sexual assault. He stated: [22] Clearly, being drunk does not automatically disqualify the witness' evidence. If that were the case, frequently evidence tendered in these courts would fall under that disqualification. What is necessary, in my view, is a review of whether, in this particular case, the amount of alcohol impacted the witness' perceptions so as to make them so unreliable that a verdict is not possible or whether the witness' failure to appreciate the effect of alcohol was such that their evidence expresses a certainty when the reality is there can be no such certainty. [23] As I have said, I re-listened to the evidence of the complainant. I was struck when I heard it the first time and when I re-listened to it as to the care that [the complainant] took in giving her evidence. She showed great candour admitting that which she could not recall. [140] All of these facts and circumstances support that L.M.'s first impressions may not have been entirely accurate. [141] L.M. was well familiar with the statement that she had given the Tofino RCMP. Nevertheless, as the Crown notes, L.M. did not purport to simply memorize that statement and restate it for the purposes of this trial. Rather, L.M. reduced her version of events to the core facts that she remembered once she was fully awake and also, what she currently remembers. At trial, L.M. could not be certain about any penile penetration; she was only certain about penetration from Mr. G's fingers and tongue. [142] When tested in cross-examination, L.M. repeatedly stated that she understood the most important thing was for her to tell the truth on the witness stand under oath. L.M. reiterated numerous times that she was told--by Crown and perhaps others--that she was allowed to tell the court everything that she remembered now, including any new evidence that she now recalled. What I take from this evidence is that, while L.M. may have had a memory before about other events, she was careful to state her evidence in terms of what she currently recalls. As the Crown notes, she did not attempt to embellish beyond her current memory of the events, using her statement or otherwise. [143] Taken in context, any discrepancies between these two versions--if they are in fact different versions--do not detract from her reliability to a significant degree. [144] In all of the above circumstances and all the evidence, I find that L.M. was a credible and reliable witness as to the elements of the incident. I agree with the Crown that L.M. was not trying to portray herself in the best light possible when she testified. She readily admitted when she could not recall. She was not simply "making it up as she was going along" as suggested by defence counsel. [145] In addition, the clear evidence is that L.M. was very intoxicated throughout most of the evening leading to the incident. Yet, she was able to recount many specific details relating to the actual incident. I do not think that L.M. was mistaken in her recounting of the actual events after she woke up in the Vehicle. I find that L.M.'s overall evidence as to the "core" elements of the incident was unshaken. Her evidence was also consistent with other circumstances, such as A.G.'s own intoxication and tiredness such that she didn't awake when L.M. was calling for help. [146] Those "core" elements related by L.M. include: · she grabbed a cigarette and was sitting in the back and smoking it; she remembers waking up and having a cigarette in her hand; · she remembers having her pants down when she woke up and that her pants and underwear were at her ankles; · she said that when she was waking, her body didn't feel right to her at all; · she remembers that [Mr. G] was "licking" her clitoris and around her vagina. She also remembers that he placed his fingers inside her vagina. Finally, she remembers [Mr. G] running his hands all over her body--her chest specifically--where her bra was pulled up; · she recalls that [Mr. G] was "hurting" her; · she remembers that [Mr. G] was lying against the front of the seat such that he was leaning or hovering over her; · she remembers that her left leg was stuck such that she could not move; · she remembers A.G. was passed out in the driver's seat and calling for her to help. She found it "weird" that she was having no success getting help from A.G. since they were family; · she remembers kicking [Mr. G] and getting mad at him saying he was her "uncle" and that she was his "niece" and that it was wrong because they were family; · she remembers that [Mr. G] told her that she had consented but she had enough presence of mind to say that she could not have since she had been drunk and blacked out; · she remembers that the incident only ended after she kicked [Mr. G] and told him to get off her; and · she recalls that when she pulled her pants up afterward, her genital area was all "wet and gooey". [147] I find that L.M.'s evidence, when considered as a whole, has a sufficient aura of reliability. I agree with the Crown that her recollection of the events in question is not perfect, although this is perfectly understandable given the lapse of time since then and L.M.'s intoxication at the time. Taken in its totality, most of the inconsistencies were on peripheral matters and, where more substantial, were adequately explained by other evidence. [148] When considered in context, L.M. was not shaken on the "core" of the facts asserted by her--that she was sexually assaulted by Mr. G, her "uncle", in the backseat of her grandmother's vehicle. She was very familiar with Mr. G, having known him her whole life. She describes being traumatized by the violation of her body while she was severely intoxicated and in a vulnerable position and I consider that she sincerely conveyed her trauma during this trial. [149] I agree with the Crown that any inconsistencies raised with respect to L.M.'s evidence over the course of the trial do not have the cumulative effect of creating a reasonable doubt. FINDINGS AND CONCLUSIONS [150] Firstly, I do not accept Mr. G's denials as to his lack of involvement in the incident. His evidence is suspect, to say the least. Secondly, I am not left with any reasonable doubt arising from his evidence, having rejected his denials. [151] I took the defence position to concede that, if I rejected the defence evidence and accepted L.M.'s evidence, the elements of the offence would have been made out. [152] I have carefully considered L.M.'s evidence in light of its admitted frailties. While there were some inconsistencies in L.M.'s evidence, they are understandable and do not ultimately detract from the "core" allegations advanced by her that were unshaken at trial. I accept L.M.'s evidence as to the core aspects of the incident where she describes Mr. G having sexually assaulted her in the Vehicle. I have also examined L.M.'s evidence that I accept within the context of the entire body of evidence, including that of the defence witnesses. [153] This is also not a case where I am unable to decide whom or what to believe. [154] Having considered all of the trial evidence, I conclude that the Crown has met its burden to prove the allegations beyond a reasonable doubt. I find Mr. G guilty as charged in respect of Count 1. "Fitzpatrick J."