



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Mayer,









2004 BCCA
            17




Date: 20040109





Docket: CA030405

Between:

Regina

Respondent



And

Jean Jacques
      Mayer

Appellant














Before:



The Honourable
            Madam Justice Southin





The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Prowse




Oral Reasons for Judgment




G. Barriere



Counsel for the Appellant





N. Harris



Counsel for the (Crown) Respondent





Place and
            Date:



Vancouver, British Columbia





January 9, 2004







[1]

PROWSE,
          J.A.
: On 11 April 2002, a Provincial Court judge
          convicted Mr. Mayer of one count of sexual assault under s. 271 of the
Criminal
          Code
(the
Code
).  On 31 October 2002, Mr. Mayer
          was sentenced to one year imprisonment and two years probation.  He
          has served the custodial part of his sentence and is presently serving
        the period of probation.

[2]

Mr.
      Mayer is appealing from conviction on the basis that:

(1) The trial judge
        misapprehended the evidence of Mr. Mayer on a critical point of evidence
        resulting in a miscarriage of justice;



(2) The trial judge
        erred in law in relying on conjecture and speculation in assessing Mr.
        Mayer's evidence; and



(3) The trial judge erred in law in shifting the onus of proof to Mr.
      Mayer to prove his innocence.

[3]

Since
        I have concluded that there must be a new trial in this matter, I do
      not propose to deal at length with the evidence.

[4]

By
        way of brief background, the conviction arose out of two incidents which
        occurred in a work camp near Fort Nelson, B.C. between 1 September and
        21 November 2001.  The complainant alleged that Mr. Mayer attempted to
        touch the complainants genital area on two occasions, once in the complainant's
        room, and once while the two men were standing at a urinal.  The complainant,
        who was a 16 year old male working in the camp, moved away from Mr. Mayers
        advances on both occasions and subsequently complained to his employer
      about the incidents.

[5]

The
        trial judge accepted the evidence of the complainant as to how the incidents
        occurred and rejected the evidence of Mr. Mayer.  It is the trial judge's
        reasons for rejecting Mr. Mayer's evidence which give rise to the necessity
      of a new trial.

[6]

The
        principal problem with the trial judge's reasons arises from his characterization
        of Mr. Mayer's evidence in relation to the alleged assault at the urinal.  At
      paras. 13-14 of his reasons, the trial judge stated, in part:

[13] In cross-examination,
        Mr. Mayer was asked, if in the washroom, in the urinal area, whether
      or not he reached for Mr. F.'s genital area.
Mr. Mayer did not say, "No";
        he did not deny that allegation.
What Mr. Mayer did was, by implication,
        deny the allegation by saying that there were walls between the urinals,
        and that he never went near him.



[14] Now those responses are puzzling to me.
It seems to me that
          when that allegation is made to an individual, the natural answer would
          have been, if you were denying it, would have been to say, "No,
          I never did that."
But Mr. Mayer qualifies that to some extent
          by saying that, "Well, it couldnt be done because there were walls
        between the urinals," That again is puzzling.

[7]

Mr.
        Mayer's evidence in that regard is found in the following passage from
      the transcript:

Q     Now, Mr.
        F. says, on one occasion, you came into that wash area, and went to the
      urinal beside him, do you remember that?

A     No, I don't
      remember standing beside him.

Q     Okay. And
      he  he said you reached out and tried to grab his crotch area.

A     There's
      walls in between the urinals.

Q     Yes. He
        said he pulled away from you when you tried to reach, do you remember
      that?

A.
No,
          I never even went near him
, and besides, there's  like I say, there's
        walls in between the urinals.

[Emphasis added.]

[8]

I
        agree with counsel for Mr. Mayer that the trial judge misapprehended
      both the substance and the effect of Mr. Mayer's evidence. In this passage
      from
        his evidence, Mr. Mayer specifically denied that he had touched the complainant,
        ("No, I never even went near him").  This was consistent with
        the evidence Mr. Mayer had given in examination in chief.  Further, rather
        than qualifying his answer, Mr. Mayer offered an explanation for why
      the assault could not have occurred in the manner alleged by the complainant.

[9]

It
        is apparent that the trial judges misapprehension of the evidence led
        him to discount Mr. Mayers credibility on this critical point.  Since
        Mr. Mayers denial of any wrongful touching was the cornerstone of his
      defence, the impact of this error cannot be underestimated.

[10]

The
        trial judges error in this regard was compounded by two instances in
      which he relied on speculation and conjecture in finding that Mr. Mayer's
      evidence
        lacked credibility.  The first instance related to Mr. Mayer's evidence
        that he rarely had men in his room, that he usually drank in his room alone,
        and that most socializing between employees was done in the kitchen area
        of the camp.  In addressing that evidence, the trial judge made the following
        comments: "Alcohol and drugs are substances that are usually consumed
        in the company of other people." and "It seems improbable to
        me, that with this amount of alcohol and drugs in the camp, that socializing
        would not have been done in the rooms."  There was no evidence before
        the trial judge, apart from that of Mr. Mayer, as to the nature of Mr.
        Mayer's socializing with other employees, his general drinking habits,
        or the socializing habits of the men in the camps.  While there may well
        have been some basis for the trial judge to reject Mr. Mayer's evidence,
      he did so in this instance on the basis of generalizations and conjecture.

[11]

Similarly,
        the trial judge relied on speculation in casting doubt on Mr. Mayer's
      evidence that he had no authority to inspect the rooms of employees, including
      the
        complainants room.  While Mr. Mayers right of access to the complainants
        room was a subsidiary point in the Crowns case, the trial judge seized
      upon it as another example of Mr. Mayers lack of credibility.

[12]

The
        three errors to which I have referred were made by the trial judge in
      the course of very brief oral reasons for judgment.  Because they all related
        directly to the critical question of Mr. Mayer's credibility, they went
      to the heart of the defence.

[13]

In
        these circumstances, I would allow the appeal, set aside the verdict of
      guilt and order a new trial.

[14]

SOUTHIN,
        J.A.
: I agree.

[15]

ROWLES,
        J.A.
: I agree.



The Honourable Madam Justice Prowse


