



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Bains,







2007 
          BCCA 13



Date: 20070104





Docket: CA033082

Between:

Regina

Respondent

And

Arvinder 
    Bains

Appellant

Ban on Disclosure s. 486 (3) (now 486.4)
C.C.C.




Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Lowry



Oral Reasons for Judgment




R.S. 
          Gill


Counsel for the Appellant




M. 
          Brundrett


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver
,
British Columbia




4 January 2007



[1]

NEWBURY, J.A.
:  Mr. Bains appeals his conviction on two 
    counts of sexual assault and two of unlawful confinement  one of each relating 
    to the complainant Ms. Y.L., and one of each relating to the complainant Ms. 
    H.M.

[2]

The reasons for judgment of the trial judge, Mr. Justice Melnick, were 
    delivered orally on 17 March 2005 after a trial of eight days.  I do not intend 
    to recount the facts of each incident in detail.  With respect to Ms. Y.L., 
    then aged 22, she met a Mr. Nand on the Internet and then in person in September 
    2002.  They spent an evening at the home of friends of his and then at a club 
    called Heavy Metal, a restaurant and a cinema.  She gave evidence that on 
    the way home (at 4 a.m.) Mr. Nand said he had to do something so he would 
    drop her off at a friends home in Vancouver
.  This turned out to be the appellants residence on Balkan Street.

[3]

The appellant appeared outside and was introduced as Tony.  She said 
    he took her down to the basement; she declined an alcoholic drink; they sat 
    on a couch and he began to make sexual advances and tried to force her to 
    perform oral sex.  She refused.  She said he took her to an empty room, slammed 
    the door shut and pushed her to the floor.  He held her down and slammed her 
    head on to the floor.  He had forcible sex with her and then a cell phone 
    rang.  He got up.  Hoping she might escape she said she had to use the washroom, 
    but it had no window.  When she emerged from the bathroom, he told her Mr. 
    Nand was coming to pick her up.  She began to put on her shoes and realized 
    she no longer had her phone and that Tony had left.  She followed him outside 
    and down the street a block but tripped and decided to return to the house 
    to note the address.  Eventually, she said, he returned and gave her her phone 
    back.  She called a friend and asked him to pick her up and when he arrived, 
    realized her wallet was also missing.  They knocked on the door of the house 
    and it was opened by man who was younger than Tony and who said only he 
    lived there with his parents.  Ms. Y.L.s friend then took her to the hospital 
    and police were called.  Ms. Y.L.s drivers licence was later found by police 
    in what appeared to be the appellants bedroom in the house in question, and 
    Ms. Y.L. picked the appellant out of a photo line-up.

[4]

Mr. Bains evidence was that he was simply not the person who had confined 
    and assaulted Ms. Y.L.  He said he had been holding her drivers licence in 
    safekeeping for Mr. Nand, who was being put under some pressure by the police.  
    Mr. Nand testified to this effect as well.

[5]

The trial judge recounted the evidence of the defence witnesses as 
    follows:

[20] 
    Mr. Nand described the events of the evening of December 19 and early morning 
    of September 20, 2002.  According to Mr. Nand, he offered to drive Y.L. home, 
    but she still wanted to chill.  He is a long-time friend of Shawn Bains, 
    Mr. Bains brother, who also lives at 4286 Balkan.  He could not take Y.L. 
    home with him, he said, due to his parents.  He intended to change, then return 
    to the Bains residence to chill.  The Bains home is about half a block from 
    his parents home.

[21] 
    When he dropped off Y.L. in front of the Bains residence, someone he knew 
    only as Tony was there.  He had played basketball with Tony a couple of times.  
    He described Tony as a person other than the accused, who is five-six to five-seven 
    tall, 19 to 20 years of age, with short hair.  He said that Tony was sitting 
    by the fence in front of 4286 Balkan, smoking something, appearing to be drunk 
    or high.  Mr. Nand said that he was only gone five to 10 minutes (not the 
    20 or so minutes described by Y.L. as the length of the incident with Tony).  
    When he returned, he said Y.L. was across the street.

[22] 
    Mr. Bains also gave evidence that during the evening of September 19th through 
    to about 7:00 a.m. in the morning of the 20th, 2002, he was with a cousin, 
    Ravinder Nagra, at Mr. Nagras parents home.  There they had consumed alcohol 
    and played video games.  Mr. Nagra gave evidence, also.  He confirmed the 
    alibi, an alibi the Crown had just learned of from the evidence heard in this 
    trial.

[23] 
    Mr. Shawn Bains also gave evidence.  He described hanging out with Tony on 
    occasion.  He did not know Tonys last name.  He described Tony as Hispanic, 
    short, of small build.  Shawn Bains also confirmed that Mr. Bains was in Surrey 
    at the time in question, saying that Mr. Bains had told him on September 19th 
    that he would be in Surrey.

[24] Further, he said that when Y.L. and a man knocked on the door of 
    the Bains home, he told them that, He and his family lived there, not that 
    only he and his parents lived there.  I add that Mr. Ma was adamant that he 
    was correct as to what he had been told, presumably by Shawn Bains.

[6]

The trial judge was left in no doubt that Tony was the appellant 
    and that Ms. Y.L. had been sexually assaulted by him.  In particular, he noted 
    that Ms. Y.L. , although under the influence of alcohol, had known what she 
    was about on the night in question; that she had identified Mr. Bains and 
    that:

I have no doubt that Mr. Bains had a copy of Y.L.s driver's licence 
    because he copied it for his purposes.  It makes no sense that Mr. Nand, a 
    friend of Shawn Bains, would give this to Mr. Bains for safekeeping.  That 
    evidence was pure fantasy to try to explain away the document being found 
    in the possession of Mr. Bains. [at para. 29]

The appellant was therefore convicted of the two charges 
    relating to Ms. Y.L.

[7]

The charges relating to Ms. H.M., then 18 years of age, also arose 
    from an acquaintanceship that began via the Internet.  Mr. Bains was using 
    the name Raj on the Internet.  Eventually, they met in person a few times; 
    and in December 2002, they hooked up when she was attending a party with 
    a girlfriend.  Ms. H.M. and Raj drove the friend home and then they drove 
    to a McDonalds and she ordered a sundae; he a Coke.  He said he had to pick 
    up something at his home (the house on Balkan Street) so they entered (quietly, 
    at his request) and went downstairs.  She testified she sat 15 minutes on 
    a couch in the basement suite, eating her sundae.  The trial judge described 
    her testimony as to what then transpired:

[39] 
    It was not until cross-examination that she conceded that she had had something 
    alcoholic to drink as well, while in the kitchen area.  H.M. said that she 
    then indicated to Mr. Bains that she wished to leave because it was getting 
    late.  However, while walking back the way she had entered the basement, she 
    says Mr. Bains locked a door between the kitchen and the room in which they 
    then occupied, one that was vacant except for some clothes in a closet.

[40] 
    H.M. said that Mr. Bains then put her onto the floor, stomach-down, and was 
    on top of her.  She said that he asked her to perform oral sex on him, that 
    he had her by the hair, that he asked her to take off her shirt.  Then, together 
    with her, he took it off, as well as her bra.  She still had on her blue jeans 
    and boots, she said.  He told her to do a good job or he wouldnt let her 
    go, that she could scream as much as she wanted.

[41] 
    He then had her perform fellatio for what she said was a long time.  At one 
    point, she said, he took a photograph of her performing oral sex.  He warned 
    her, she said, there must not be a single stain or drop on the carpet.  He 
    subsequently ejaculated into her mouth.  She did not spit it out, she said.

[42] 
    When she then went to grab her clothes, he indicated he was not satisfied.  
    He then got her pants down to her ankles.  Initially, she had her legs closed 
    tight, she said.  Eventually, she took her pants and boots off and she had 
    vaginal sex with him, at first with him on top, then he asked her to ride 
    him, and she did.

[43] 
    She could not tell if he was wearing a condom while having vaginal sex with 
    her, she said.  She insisted that she did not consent to any of these acts, 
    although questioned several times about it during cross-examination.

[44] 
    Afterwards, she said, he insisted that she take a shower.  He turned the shower 
    on in the bathroom and stood beside it while she got in.  However, she says, 
    she only rinsed out her mouth and gargled and she didnt fully shower.  She 
    agreed in cross-examination that she did not scream or yell.  She said she 
    did not know why.  When asked in cross-examination if she had ejaculate in 
    her hair, she said that she was not sure either way.

[45] 
    After she got dressed, she asked for her purse, she said, but Mr. Bains would 
    not give it to her.  Then he told her that it was in his vehicle.  In fact, 
    she said, he had it all the time.

[46] 
    Mr. Bains then drove her almost to her home, but she said that she jumped 
    out at an intersection near to her home and ran away.  She said that when 
    she got home, by then after 3:00 a.m. on December 28, she cried and her two 
    older brothers, who were there, called her sister to come over.

[47] H.M.s brother, J. M., gave evidence that when H.M. returned home 
    that morning she was upset and crying.  He said he later spoke on the telephone 
    with a person who identified himself as Raj.  He described Raj as sounding 
    calm and joking.  The police were then contacted.

[8]

Later, Ms. H.M. picked the appellants picture out of a photo line-up.  
    Ms. H.M.s girlfriend provided testimony confirming that she had been dropped 
    off at 1:00 or 1:30 a.m. by Raj and Ms. H.M., who said she would be gone 
    with Raj for about 45 minutes.  Raj said one hour.

[9]

The appellant testified that Ms. H.M. had gone with him on the night 
    in question but that she had willingly had oral and vaginal sex with him.  
    He said his brother Shawn had been in the basement suite and was on the couch 
    with them until Mr. Bains and Ms. H.M. went to the back room to have sex.  
    The trial judge described the evidence  of the accused and of his brother 
    as follows:

[50] 
    Mr. Bains said that, in fact, he had met in person with H.M. eight to 12 times 
    before December 28, and that she had indicated that she wanted to be his girlfriend, 
    that they would make a good couple.  According to Mr. Bains, the events of 
    the early morning of December 28 were quite different than those described 
    by H.M.

[51] 
    He agreed that he took H.M. to his parents home and that they went into the 
    basement suite; however, he said that his brother Shawn was there, watching 
    a video movie on the TV.  They all drank alcohol, the three of then sitting 
    on the couch.  H.M. had taken her shoes off at the front door, he said.

[52] 
    After a few drinks, they headed into the back room, he said, where they made 
    out and he then asked her to give him oral sex and she willingly did so.  
    He said he then asked her if she wanted to have sex and they had sexual intercourse 
    after they both took off her clothes, and he went to the kitchen to get a 
    condom.  He never threatened her, he said, and she consented to the sex.  
    According to him, after the vaginal sex, she again gave him oral sex.  Because 
    he then got ejaculate in her hair, she said she wanted to take a shower.  
    So he went upstairs and got shampoo for her to do so.  Mr. Bains insisted 
    that if at any time H.M. had wanted to leave, she could have done so.  He 
    described her walking to and from the bathroom with a towel around her.

[53] 
    He drove her home afterwards.  He said on the way she told him that, as they 
    had had sex, he was now her boyfriend, but he denied this, saying they could 
    not be boyfriend/girlfriend because she was not Sikh.  She became angry, he 
    said.  He agrees she left the vehicle at Joyce Station.  He called her home 
    later.  He says he wanted to make sure she had got home all right.

[54] 
    Shawn Bains confirmed that he was in the Bains basement suite.  He had been 
    expecting them to arrive with a friend.  He said that when H.M. came in, he 
    saw her upstairs, he was there.  (That differs, of course, from Mr. Bains 
    account; he says he and H.M. first went downstairs, then saw Shawn Bains on 
    the couch).

[55] 
    According  to Shawn Bains, he saw H.M. come out of the back room in a towel, 
    that she then had a shower, after which she came out of the bathroom and asked 
    for her clothes, that Mr. Bains told her they were in the back room, that 
    she then got dressed and asked for a ride home.  He said H.M. made no complaint 
    to him about Mr. Bains behaviour.  He indicated that throughout he was on 
    the couch watching a movie; however, he could not recall Mr. Bains walking 
    by to get a condom, nor did he see anything in H.M.s hair when she walked 
    by him.

[56] I do not believe the evidence of Shawn Bains.  I reject his evidence 
    entirely.  I do not accept that he was in the basement apartment in the early 
    morning hours of
December 
    28, 2002, when H.M. and Mr. Bains were there.  He did not see Mr. Bains go 
    for a condom because he was not there to see him.  He did not see H.M. upstairs 
    because he was not there to see her.

[10]

The trial judge then referred to some of the weaknesses in Ms. H.M.s 
    testimony, including the minimization of her role in the events of December 
    2002 and inconsistencies on some points that may be described as minor.  Despite 
    these, the trial judge accepted her evidence that she had been forced to have 
    oral and vaginal sex with Mr. Bains.  As well, he rejected the defence evidence 
    that she had concocted the allegations out of spite or to justify her conduct 
    to her family.  The Court convicted Mr. Bains on these charges as well.

[11]

On appeal, Mr. Gill on behalf of Mr. Bains advanced three grounds.  
    The first was that the trial judge had misapprehended an exchange between 
    defence counsel and Ms. H.M. concerning a statement she gave to the police 
    on 28 December 2002.  With respect, this exchange was ambiguous at best on 
    the face of the transcript, and only the trial judge could, I think, have 
    figured out Ms. H.M.s responses with the benefit of actually hearing her 
    testify.  She often began her answers before the questions were complete; 
    and conversely, counsel often interrupted her answers.  The result was some 
    confusion as to what answers were responding to what questions.  In any event, 
    the appellants argument regarding this exchange was clearly put to the trial 
    judge and he concluded that Ms. H.M. was nevertheless credible.  Although 
    the trial judge acknowledged she had tried to minimize her conduct, he did 
    not find that she had admitted to lying to the police as counsel contends.  
    I would dismiss this ground of appeal.

[12]

The second ground is that the learned trial judge failed to provide 
    adequate reasons for rejecting the evidence of the defence witnesses, including 
    Mr. Bains, his brother Shawn, Mr. Nand and Mr. Nagra.  In Mr. Gills submission, 
    the Reasons leave the appellant with no clear idea as to why these witnesses 
    were disbelieved.  Counsel notes the 
Sheppard
 line of cases 
     i.e.,
R. v. Sheppard
, [2002] 1 S.C.R.  869;
R. v. M.(Y.)
, 
    [2004] O.J. No. 2001 (Ont. CA);
R. v. S.J.D.
[2004] O.J. No. 
    2142 (Ont. CA);
R. v. Gagnon
, [2006] 1 S.C.R. 621 and this courts 
    decision in
R. v. Thomas
, 2006 BCCA 411  for the principle 
    that the mere statement of conclusory findings by a trial judge will justify 
    appellate interference where the reasons do not permit the appeal court to 
    be satisfied that the fundamental principles of reasonable doubt have been 
    applied by the trial judge.  Thus in
Sheppard
, Binnie J. for 
    the Court noted that in
R. v. R.(D.)
:

The deficiency in the trial reasons precluded the appellate court from 
    being satisfied that these fundamental principles had been properly applied.  
    It is thus not every case of confused and contradictory evidence that will 
    convert deficiency of reasons into an error of law for purposes of s. 686(1)(a)(ii).  
    The error of law arises in that context because in the opinion of the appellate 
    court, the deficiency precludes meaningful appellate review of the correctness 
    of the decision.  That threshold is not confined to cases of bizarre evidence. 
    [at para. 43]

[13]

Like the case at bar,
Thomas
was a case of alleged sexual 
    assault where the credibility of the two protagonists was the central issue.  
    The trial judge said he believed the complainant and that the defendant was 
    unclear and vague as to what had occurred, even though this court said his 
    testimony had not indicated any apparent forgetfulness and that it was his 
    truthfulness that was at issue.  The Court concluded that
even accepting 
    the trial judges findings of fact
, it was not possible to be satisfied 
    that the proper pathway to conviction had been followed.  As we stated at 
    the end of our Reasons:

[31] 
    The question in the case at bar, then, is whether the trial judges conclusions 
    expressed essentially at paras. 30-32 of his reasons (quoted above) permit 
    us to be satisfied whether due consideration was given to the principle that 
    even though he may (for reasons not clearly explained) have rejected Mr. Thomas 
    evidence, there might nevertheless, given the difficulties with M.H.s evidence, 
    be a reasonable doubt as to proof of guilt.  The trial judge said he considered 
    Mr. Thomas testimony in the context of the Supreme Courts direction in
W. (D.)
.  He said he did not accept Mr. Thomas evidence as 
    to the events of July 10, 2004, and then concluded that Mr. Thomas, having 
    consumed too much alcohol, had sexually assaulted M.H.  The trial judge did 
    not resolve, at least expressly, the question posed by the defence of why 
    Mr. Thomas acted differently towards M.H. than he had minutes earlier towards 
    K.H., or why at least a doubt was not raised by his testimony that he had 
    only jiggled M.H.s foot to wake her.  Mr. Thomas evidence was not inherently 
    implausible or patently incredible, to use the phrase of the Court in
S.J.D.
at para. 26.  Indeed, as mentioned earlier, except for the alleged assault, 
    his evidence was largely consistent with that of the complainant and with 
    what happened at K.H.s house.
The trial judge did not expressly find 
    him to be untruthful.  In these circumstances, the trial judges pathway to 
    conviction is unclear:  did he believe that Mr. Thomas was lying, but refrain 
    from saying so?  Did he regard M.H.s confusion on the stand and her lie to 
    the police as immaterial?  Did he make the error of disbelieving the accused 
    because he believed M.H.?  Did he consider whether, even if he disbelieved 
    Mr. Thomas, a reasonable doubt still existed in light of the evidence 
    he did accept?


[32] 
    With all due respect to the learned trial judge, and accepting the findings 
    of fact and credibility he did make, I am unable to answer these questions 
    on the reasons as they stand, and in my opinion a review of the evidence itself 
    does not supply the deficiency.  I am unable to say with confidence whether 
    the principles in
W. (D.)
were properly applied to the very 
    ordinary circumstances of this case.  It follows that in my view, the curative 
    proviso in s. 686(1)(b)(iii) cannot be applied and that the appeal must be 
    allowed and a new trial ordered.

[emphasis added]

[14]

Mr. Gill submits that the same is true in this instance  that there 
    remain various questions unanswered by the trial judge that preclude the appellants 
    knowing why his evidence was disbelieved.  More to the point, of course, is 
    whether the Court of Appeal can review the case in a proper way.

[15]

With respect, I think this case is quite different from
Thomas
.  
    Here there
were
clear findings of credibility adverse to the appellant, 
    some of which I have already quoted.  The defence witnesses testimony was 
    expressly found to be untruthful, and ran contrary not only to the complainants 
    evidence but also to the objective evidence regarding the drivers licence 
    of Ms. Y.L. and the photo IDs.  The trial judge was not required to go into 
    great detail as to demeanour and so on for the benefit of the defence.  He
was
required to consider all the evidence and to make credibility findings, 
    having the obvious advantage of seeing the witnesses on the stand.  Then, 
    he was required to state his findings in a way that made the pathway to conviction 
    clear.  I am satisfied that he did so in this case and that therefore no error 
    of law or unreasonable verdict has been shown on this ground.

[16]

The appellants final ground of appeal was that the trial judge erred 
    in law in accepting Ms. Y.L.s photo identification evidence as being reasonable 
    and supported by the evidence.  Mr. Gill notes that her original description 
    of Tony given to police was not at all detailed and that when asked to identify 
    him in court, she hesitated. (She said she had done so because she thought 
    the question was silly.)  I do not regard these facts as somehow invalidating 
    Ms. Y.L.s earlier identification of Mr. Bains in the photo line-up, and I 
    would therefore dismiss this ground of appeal as well.

[17]

In the result, I would grant leave to appeal but dismiss the appeal.

[18]

ROWLES, J.A.
: I agree.

[19]

LOWRY, J.A.
: I agree.

[20]

ROWLES, J.A.
: The appeal is dismissed.

The Honourable Madam Justice Newbury


