



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Rahmani,







2007 
          BCCA 6



Date: 20070102





Docket: CA31900

Between:

Regina

Respondent

And

Kianosh 
    Rahmani

Appellant








Before:


The 
          Honourable Madam Justice Huddart




The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Lowry








M. 
          Tammen


Counsel for the Appellant




M. 
          Ainslie


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




8 November 2006




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




2 January 2007








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Hall




Concurred 
          in by:




The 
          Honourable Madam Justice Huddart
The Honourable Mr. Justice Lowry



Reasons 
    for Judgment of the Honourable Mr. Justice Hall:

[1]

The appellant Kianosh Rahmani appeals from the decision of Brown J. 
    pronounced April 14, 2004 dismissing his appeal from a conviction of sexual 
    assault registered against him by a
Provincial Court
judge 
    in 2002.  The offence was alleged to have occurred at Burnaby on February 
    3, 2000.  The Crown had proceeded summarily on the charge.

[2]

The complainant, who was aged 21, had recently moved to
Vancouver
where she 
    was residing with her mother around Christmas of 1999.  She was a native of 
    Alberta originally and at the time she became involved with the appellant 
    she was not particularly familiar with Vancouver
and surrounding municipalities.  She testified that on the evening of
January 31, 2000 when she 
    first met the appellant she had been waiting for her mother to meet her in 
    the area of Robson Street in Vancouver.  The complainant and the appellant 
    were not known to each other before this evening.

[3]

The case seems factually a bit out of the ordinary.  The complainant, 
    as she waited to meet her mother, was looking at shops on
Robson Street
.  She 
    said that she was standing outside a shop having a smoke.  It was a rainy 
    evening.  The appellant, according to her, approached her and offered to let 
    her shelter under his umbrella.  Later the two went together to a shop and 
    then were together for a time at a restaurant where they had something to 
    drink.  The complainant said that she had some difficulty getting access to 
    a washroom at this location and, at the suggestion of the appellant, they 
    went together to an office building nearby where the appellant said he worked.  
    The complainant said that the appellant made an unwanted advance to her at 
    this building but she demurred and they left the premises.  She said that 
    thereafter she joined her mother and left the presence of the appellant.  
    During the time the two had spent together on the evening of January 31, 2000, 
    they had exchanged phone numbers.  The complainant testified that she received 
    a number of phone calls from the appellant between that date and the date 
    of the incident, importuning her to go out with him.  She initially refused 
    but she eventually agreed to meet with him on the evening of February 2.  
    She said that after they met they went to a place in Kitsilano she described 
    as a combination pub and coffee shop.  The complainant said that they remained 
    there for a couple of hours and that she had more than one alcoholic drink 
    at this establishment.

[4]

The appellant generally agreed with the narrative of the complainant 
    as to how he met her but he denied making any improper advances to her at 
    the office building where they attended on the first evening they met.  He 
    said that at one point during that evening when they were together in his 
    car he did massage one of her hands because she had complained of having cold 
    hands.  He testified, contrary to her evidence, that she was the one who contacted 
    him later, asking that they get together.  He agreed that on February 2, 2000 
    he did phone her and ask her to go out with him and they went together to 
    a place on West Broadway where they had some drinks.  He said that while they 
    were at this place he massaged her hand and placed his hand on her legs for 
    a time.

[5]

Both parties agreed that when they left the restaurant they went to 
    a beach area where they sat in a car and talked for a time.  The appellant 
    said that the complainant suggested at this point that they should go to a 
    hotel.  The complainant said that she told him that she didn't want to go 
    to a hotel but rather wanted to go home.  She then described driving about 
    streets that she was not familiar with in the car of the appellant and said 
    that eventually they got to a hotel.  She said she agreed to go with him to 
    a room in that hotel.  The hotel was located near Boundary Road on the border 
    between Vancouver
and
Burnaby.

[6]

It was common ground that there was some difficulty with the television 
    in the room that they were in at the hotel and a request was made to have 
    someone come to the room to fix the television.  The handyman that came to 
    the room testified that when he was in the room the two individuals were fully 
    dressed but the complainant might have been partially covered by a bedspread.  
    He said that he noted nothing unusual about the demeanour of the complainant 
    at this time.  He said that at some time between 2:00 and 3:00 a.m.
he observed the male leave the room to return after a short time.  He 
    thought that it was around
4:00 
    a.m. when he saw both parties leave the room and depart the premises.  Around 
    5:45 a.m. police attended at the hotel and sealed the room to conduct an investigation.  
    A room clerk testified that the appellant rented the room at around 1:30 a.m. 
    and checked out at about 4:30 a.m.  He testified that about an hour after 
    the man checked in he came to the front desk looking for a condom and the 
    clerk directed him to a nearby store.  The appellant said he did not go to 
    that store but drove to another store he knew not far distant.

[7]

On the subject of what occurred inside the hotel room, there was considerable 
    divergence between the evidence of the complainant and the evidence of the 
    appellant.  The complainant testified that after they entered the hotel room, 
    the appellant suggested they watch a pornographic movie but she objected to 
    this and ultimately another type of movie was selected by her.  The complainant 
    said that he offered her money for sex but she refused.  She testified that 
    she did allow him to massage her feet but when he attempted to kiss her feet, 
    she objected.  Thereafter she described an assault on her person where the 
    appellant was endeavouring to remove her clothing and she said she resisted.  
    She narrated how he partially succeeded in removing her clothing and she said 
    that to preserve herself she then asked him to get a condom before proceeding 
    further.  He agreed to this suggestion.  She testified that he then left the 
    room taking with him her purse containing her identification, money and her 
    cell phone.  She said that he shortly returned and again proceeded to assault 
    her.  She said that he put his finger and his penis in her vagina, that he 
    withdrew and ejaculated over the area of her lower abdomen.  This was her 
    evidence:

Q         
    How long did he have his penis inside your vagina?

A          
    Not for very long, for maybe a couple of minutes.

Q         
    What happened at the end of that couple of minutes?

A          
    Then he ended up pulling out and, like, finishing all over my stomach and 
    the bed covers and 

Q         
    When you say finished, you mean ejaculating?

A          
    Yes.

Q         
    So did he actually put a condom on?

A          No.

She testified that thereafter the appellant suggested 
    that they go to sleep but that she demanded that she be driven home.  Eventually 
    he agreed to this and they left the hotel and she was driven back to her residence.  
    She then phoned the police and attended for a medical examination by a physician.

[8]

The appellant gave a very different narrative of events in the hotel 
    room.  He said that they were having what he thought were amicable relations 
    but that at one point she said words to the effect, "What's the deal?"  
    He took this to be a demand for money and he indicated that he was unwilling 
    to pay when he was out on a date.  He said that at one point the complainant 
    demanded that he get a condom and he left the room and got some condoms.  
    He denied taking the purse of the complainant on this occasion.  His recollection 
    was that when he went outside he found her purse in the car and he brought 
    it to the room when he returned.  He said that when he returned he did not 
    use the condom and that he could not get an erection.  He said that the complainant 
    attempted to assist him in getting an erection.  He testified he had a partial 
    erection and then ejaculated onto her abdominal area.  He denied using any 
    forcible tactics on the complainant and he denied that he had sexual intercourse 
    with the complainant.  He agreed that after the sexual activity between him 
    and the complainant finished the complainant asked to be driven home and he 
    complied with her request.

[9]

There was no way that the narratives of events in the room given respectively 
    by the complainant and the appellant could stand together.  The complainant 
    narrated a tale of sexual assault and the appellant narrated a tale of generally 
    consensual relations between himself and the complainant.  A physician who 
    examined the complainant gave evidence indicative of the circumstance that 
    the complainant did have sexual intercourse with someone around that time.  
    It was suggested to the complainant in cross-examination that she was not 
    telling the truth and that she had every opportunity to leave the room when 
    the appellant left the room to get a condom.  The following is a portion of 
    the cross-examination by counsel for the defence:

Q         
    Why didn't you simply leave or go to the front desk and talk to the desk clerk 
    and say, "Look, I've got a problem with this guy.  Will you keep an eye 
    on me while we wait for him to come back?"

A          
    Because I  at the time I didn't think that it was  I thought I could handle 
    the situation.  I thought that this was not  I didn't know what to say.  
    What am I supposed to tell a stranger that a guy  like, it just doesn't make 
    sense.  I was scared but that maybe crossed my mind, but I didn't even  but 
    I didn't think to call.  Like, it went through my mind but I thought that 
    

Q         
    You just told us 

A          -- maybe he was outside listening, or maybe 
    he would come back as I was doing it, so I was frozen.

[10]

The appellant denied forcing himself upon the complainant and he denied 
    that he had sexual relations with her in the nature of sexual intercourse.  
    The trial judge believed the evidence of the complainant and did not accept 
    the evidence of the appellant and she found the appellant guilty as charged.  
    He was given a conditional sentence.  He appealed to the summary conviction 
    appeal court and Brown J. dismissed his appeal.

[11]

Counsel for the appellant submitted that the summary conviction appeal 
    court judge erred in failing to find the trial judge had wrongly shifted the 
    burden of proof on to the appellant and had applied differing standards of 
    scrutiny to the evidence given respectively by the appellant and the complainant.  
    Reference was made to a number of authorities from the Ontario Court of Appeal:
R. v. C.(J.)
(2000), 145 C.C.C. (3d) 197 (Ont.
C.A.
);
R. v. 
    F.(J.)
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.); and
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.).

[12]

It was also submitted that there was error on the part of the trial 
    judge in relying on the demeanour of the complainant and in deciding her evidence 
    was generally credible before undertaking a full consideration of the evidence 
    of the appellant to determine if his evidence should be believed or if it 
    raised reasonable doubt as to his guilt.  While the appellant was not represented 
    by counsel before the summary conviction appeal court, Brown J. did deal with 
    the question of the treatment of the evidence of the appellant and the complainant 
    by the trial judge:

[26]      
    Mr. Rahmani says that the trial judge failed to properly consider his evidence.  
    First, he says that she gave too much weight to the repairmans evidence as 
    to where the complainant was seated.  Secondly, he says that his comment that 
    [the complainant] was paranoid was not intended to discredit the complainant.  
    Third, he says that his recollection of her clothing should not be faulted 
    given that the event occurred two years before his testimony.  Fourth, he 
    argues that the trial judges conclusion that his evidence that the complainant 
    suggested that they go to a hotel had no air of reality, disregards the evidence 
    of each of them that there were joking comments made about staying in a hotel.  
    Fifth, he says that the trial judge assessed the complainants evidence based 
    solely on demeanour, and, having found from the complainants demeanour that 
    she was a reliable witness, the trial judge then fell into the error of discrediting 
    his evidence and the evidence in support of his story, thereby shifting the 
    burden to the accused.

[27]      
    There is no basis for concluding that the trial judge based her conclusions 
    solely on demeanour or shifted the burden to the accused.  The only reference 
    made by the trial judge to demeanour is at paragraph 11 where the trial judge 
    notes that [the complainant] was a credible witness and gave her evidence 
    largely unprompted.  Her demeanour was appropriate.

[28]      
    The trial judge refers extensively to the other evidence, that which supports 
    the complainants evidence and that which supports Mr. Rahmanis evidence.  
    She also indicates those portions which are not consistent and provides her 
    reasons for not accepting Mr. Rahmanis testimony.  Her reference to the other 
    evidence is appropriate.

[29]      I am not able to conclude that the verdict in this case was 
    either unreasonable or unsupported by the evidence.  Essentially Mr. Rahmani 
    is asking me, as the appeal judge, to review the evidence and reach different 
    conclusions with respect to credibility than did the court below.

[13]

Of course, if a trial judge applies a different standard for assessing 
    the evidence of a complainant and an accused person or casts a burden on an 
    accused person, that can constitute a legal error.  Examples of this error 
    in approach were found in both the cases of
R. v. C.(J.)
and
R. v. Howe
.  In the case of
R. v. Howe
, Doherty 
    J.A. sounded this cautionary note when an argument of this sort is raised:

¶ 58     Counsel 
    submits that the reasons of the trial judge reveal a second error. He contends 
    that the trial judge applied a higher standard of scrutiny in his assessment 
    of the appellant's evidence and credibility than he did when considering the 
    evidence and credibility of Ms. K.

¶ 
    59     This argument or some variation on it is common on appeals from conviction 
    in judge alone trials where the evidence pits the word of the complainant 
    against the denial of the accused and the result turns on the trial judge's 
    credibility assessments. This is a difficult argument to make successfully. 
    It is not enough to show that a different trial judge could have reached a 
    different credibility assessment, or that the trial judge failed to say something 
    that he could have said in assessing the respective credibility of the complainant 
    and the accused, or that he failed to expressly set out legal principles relevant 
    to that credibility assessment. To succeed in this kind of argument, the appellant 
    must point to something in the reasons of the trial judge or perhaps elsewhere 
    in the record that make it clear that the trial judge had applied different 
    standards in assessing the evidence of the appellant and the complainant.

[14]

In that case, the Court concluded that the trial judge had erred in 
    failing to factor into an assessment of credibility of the complainant any 
    recognition that there was a basis in the evidence to find that the complainant 
    had a motive to falsely accuse the appellant.  The judge had also found that 
    significant parts of the complainant's evidence were untrue but had failed 
    to consider that circumstance in the assessment of her evidence.  The case 
    of
Howe
is factually rather different from the instant case 
    where it is not apparent on the face of the evidence that the complainant 
    in this case would have had any particular motive to make up stories about 
    the appellant.

[15]

Another case in which a flawed analysis by a trial judge concerning 
    credibility issues led to an order for a new trial was the case of
R. 
    v. C.(J.)
.  In that case the issue was consent or no consent to sexual 
    activity.  In the present case, the appellant asserts consent on the part 
    of the complainant to certain sexual activity but denies that there was any 
    actual sexual intercourse.  It was found by the Ontario Court of Appeal in
R. v. C.(J.)
that the trial judge had overemphasized minor inconsistencies 
    in the evidence of the appellant and had failed to consider that much of the 
    physical evidence gave was more supportive of the version of events of the 
    appellant than that of the complainant.  In that case Charron J.A. said at 
    para. 9:

I agree with the appellant's contention that the trial judge's approach 
    to the appellant's evidence was fundamentally flawed.  The main error lies 
    in the fact that the trial judge totally rejected the appellant's testimony 
    on the sole basis that, in his view, it was internally inconsistent, a basis 
    that cannot reasonably be supported on the evidence.  Having thus rejected 
    the appellant's testimony in its totality from the start, the trial judge 
    then failed to properly assess it in the light of other evidence that supported 
    the appellant's version of events.

[16]

It was also found that the judge had fallen into error in finding that 
    a lack of recollection on certain events could provide a basis for the total 
    rejection of evidence of the appellant on matters that the appellant did recall, 
    particularly on the crucial issue of consent.  Charron J.A. said that the 
    judge apparently treated inconsistencies in the complainant's evidence in 
    a more benign fashion than inconsistencies in the evidence of the appellant 
    despite the fact that the physical evidence seemed to be supportive in many 
    instances of the version of events given by the appellant.  Thus, the judge 
    was found to have applied differing standards to the evidence of the parties.  
    A similar complaint is advanced here on behalf of the appellant.

[17]

In the present case, the physical evidence appears to be supportive 
    of the version of events given by the complainant.  Dr. Jurenka said in her 
    evidence:

A          
    At the enteritis, which is the entrance to the vagina, if you think of the 
    vagina facing you as a clock, then between the four and the eight o'clock 
    position, positions, there were four, I believe, I would have to refer to 
    my notes, but four small half-centimetre, linear, areas of uptake of the Toluidene 
    blue.

Q         
    And what did that indicate to you?

A          
    Those were consistent with minor tears to the entritis or entrance of the 
    vagina.

Q         
    Now, were those tears on the outside of the vagina, or were they actually 
    within the vaginal opening?

A          They were just within the vaginal opening.

This case factually seems rather the reverse of the case 
    of
R. v. C.(J.)
because here the appellant testified there was 
    no actual sexual intercourse.  The trial judge found that the medical evidence 
    was consistent with the evidence of the complainant and inconsistent with 
    the testimony of the appellant.  The key finding of the trial judge was that 
    she did not accept the evidence of the appellant that any sexual activity 
    was consensual.  She found that his evidence, in light of the medical evidence, 
    did not raise a reasonable doubt.  The trial judge referred to the case of
R. v. W.(D.)
, [1991] 1 S.C.R. 742 and correctly formulated the 
    approach to be taken in a case where credibility is in issue.  Her conclusion, 
    based on the evidence that she accepted, was that the Crown had proven beyond 
    a reasonable doubt that the appellant was guilty of assault as charged.

[18]

While the complainant might well have approached someone at the hotel 
    rather than remaining in the room after the appellant left to obtain condoms, 
    she explained why she failed to do so and the explanation was accepted by 
    the trial judge.  Although counsel for the appellant submits that this conduct 
    of the complainant should have led the trial judge to scrutinize her evidence 
    more vigorously, the judge was entitled to accept the explanation given by 
    the complainant.  The problem that lay at the heart of this case, from the 
    perspective of the appellant, was that his evidence simply did not square 
    with the physical evidence.  The trial judge was correct when she stated that 
    the physical evidence tended to support the evidence of the complainant and 
    tended not to support the evidence of the appellant.  The trial judge observed 
    that it seemed out of accord with reality that the complainant would have 
    suggested out of the blue to the appellant, whom she had only just very recently 
    met, that they go to a hotel.  That observation has the ring of common sense 
    to it and it was open to the trial judge to make it.  The trial judge did 
    not overlook matters such as the fingerprint of the appellant on the clock, 
    which she observed could have been supportive of some of his evidence.  Rather 
    than applying a different standard to the evidence of the complainant and 
    the appellant, it seems to me that the trial judge applied an even-handed 
    approach to the evidence of both participants in her review of the evidence. 
     That in essence appears to have been the conclusion of Brown J.

[19]

Brown J. quite properly rejected the invitation of the appellant to 
    retry the case and to "reach different conclusions with respect to credibility 
    than did the court below".  Counsel for the appellant has said everything 
    that can usefully be argued on behalf of the appellant but I am not persuaded 
    that the learned summary conviction appeal court judge erred as suggested.  
    I am not of the view that it has been demonstrated that there was any error 
    in the approach taken to the evidence by the trial judge.  Brown J. gave careful 
    consideration to the argument that the trial judge erred in her assessment 
    of the evidence and rejected this submission.  I am not of the view that any 
    error has been demonstrated in the decision of Brown J. and I would dismiss 
    this appeal.

The 
    Honourable Mr. Justice Hall

I agree:

The Honourable Madam Justice Huddart

I agree:

The Honourable 
    Mr. Justice Lowry


