



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. R.J.Y.,









2018 BCCA 30




Date: 20180119

Docket: CA44082

Between:

Regina

Respondent

And

R.J.Y.

Appellant

Restrictions on
publication: Pursuant to s. 486.4(2) of the
Criminal Code of Canada
no information that could identify the complainant may be published, broadcast
or transmitted in any way. This publication ban applies indefinitely unless
otherwise ordered.

Pursuant
to s. 16(4) of the
Sex Offender Information and Registration Act
[
SOIRA
],
no person may disclose any information collected pursuant to an order under the
SOIRA
or the fact that information relating to a person is collected
under the
SOIRA
.




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson




On appeal from: An
order of the Supreme Court of British Columbia, dated
July 8, 2016 (
R. v. R.J.Y.
, 2016 BCSC 2529, New Westminster Docket
X077994).

Oral Reasons for Judgment




Counsel for the Appellant:



G. Ng





Counsel for the Respondent:



C. Lusk





Place and Date of Hearing:



Vancouver, British
  Columbia

January 12, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 19, 2018








Summary:

The
appellant appeals his conviction for offences related to the sexual abuse of
his daughter. He argues the trial judge erred in finding the complainant to be
credible. The complainant admitted she had made untruthful statements about
whether vaginal intercourse with her father occurred and whether she told a
friend about it. The complainant also failed to mention in her initial
complaint that her father had recently refused to lend her money. The appellant
submits that the trial judge misapprehended this evidence of deceit, which the
appellant says was fatal to the complainants credibility.



Held: appeal dismissed. The appellant failed to establish a
misapprehension of evidence. The trial judge addressed inconsistencies in the
complainants statements. He accepted her explanation for the erroneous
statements concerning vaginal intercourse. The trial judge also accepted the
complainants statement that she was motivated by her children to report the
abuse, not by the appellants refusal to lend her money. Other witnesses
testified that the complainant disclosed the abuse to them before the loan
request and before her official complaint, which supported the trial judges credibility
assessment.

Introduction

[1]

GARSON J.A.
: On July 8, 2016, a Supreme Court judge
convicted the appellant, RY, of the following offences under the
Criminal
Code
, R.S.C. 1985, c. C-46:

i.        one count of sexual
interference, contrary to s. 151;

ii.        one count of invitation to
sexual touching, contrary to s. 152;

iii.        one count of sexual
exploitation, contrary to s. 153(1)(a);

iv.        one count of sexual
exploitation, contrary to s. 153(1)(b); and

v.        one
count of sexual assault, contrary to s. 271.

[2]

The trial judge stayed the sexual assault count under the
Kienapple
principle.

[3]

The convictions relate to offences in relation to RYs biological
daughter AY. The offences occurred over a roughly 12-year period commencing in
1990. RY was sentenced to nine years in jail. This is the appeal of his
conviction.

[4]

On appeal RY contends that the judge erred in accepting AYs evidence. The
judges decision on RYs guilt turned on the credibility and reliability of
AYs evidence. RY says that the judge misapprehended important evidence in two
key areas. The first concerns what RY describes as AYs manipulation or deceit in
respect to her varying accounts about whether RY penetrated her with his penis.
The second concerns the judges assessment of whether she had a motive to
fabricate her evidence because she was angry at her father for refusing her
request for financial assistance at a time when she was in desperate financial
straits. RY says these two instances of deliberate deceit taint AYs
credibility.

[5]

RY says on account of the trial judges misapprehension of this
evidence, his appeal should be allowed, his conviction overturned, and a new
trial ordered.

[6]

For the reasons that follow I would dismiss the appeal.

The Trial

[7]

RY was convicted by a judge sitting without a jury after a five-day
trial. The Crown called five witnesses  AY, her mother, her two brothers, and
a family friend.

[8]

The central issue at trial was whether AY was a reliable, credible
witness.

[9]

None of the witnesses, apart from AY, could provide direct evidence of
the assaults but their testimony was relevant because it confirmed descriptions
of the nature of AYs relationship with her father; details about where they
lived at times when the assaults occurred; and opportunity to commit the
offences charged. The testimony of AYs mother and brothers was also
inconsistent with the appellants theory that AYs allegations were a recent
fabrication. RY did not testify or call any evidence at the trial.

Overview of Evidence

[10]

AY testified that she and her father had from the time she was a small
child an unusually close relationship. The judge described AYs relationship
with her father in the following way:

[32]      A.Y. testified that
throughout her childhood, she truly believed the accused when he told her that
the incidents of a sexual nature between them were normal behaviour between a
father and a daughter. She testified that she loved and trusted her father and
believed everything he told her in this regard. Indeed, she thought he was an
amazing father. He spoiled her throughout her childhood with gifts, they
confided in each other and were very close. She felt as though she was more of
his companion than his daughter. He treated her much differently than he did
her brothers. He did not discipline her and helped her with homework. He
disciplined her brothers and rarely, if ever, helped them with their homework.
It seemed to A.Y. that the accused did not want much to do with her brothers.

[11]

The
judge described AYs poor relationship with her mother:

[33]      A.Y. testified that she
did not have a good relationship with her mother. She grew up believing the
accuseds suggestions to her that her mother hated her.

[12]

AYs
mother testified that RY treated AY like she was a god and the boys were
nothing.

[13]

AYs
first memory of being sexually assaulted by her father was when she was about
four years old. She recalls being on the front bench seat of the family station
wagon when her father fondled her, digitally penetrated her vagina, and asked her
to kiss his exposed penis. AYs mother confirmed that the family had owned a
station wagon with bench seats as described by AY. Similar assaults occurred
frequently in her bedroom in their Calgary home.

[14]

When she was six years old, AY disclosed the sexual touching to a
relative and then soon after to her mother. An investigation followed. RY was
absent from the house for two weeks, but it seems RY was not charged with any
offence. AYs mother testified about AYs disclosure at this time:

Q.        During the timeframe when you lived in Calgary, did
A ever tell you anything about her father that caused you concern?

A.         When we  we went for
a trip to Newfoundland and then we stopped in Ontario. On the way back and on
the plane coming back she told me that she told her cousin that her dad touches
her and it wasnt a good way and that when she went to school on Monday morning
she wasnt coming home because someone was going to come and talk to her and
take her.

[15]

AY
and her family moved to the lower mainland when she was about seven. AYs
mother regularly worked several evenings a week. AY testified that on evenings
when her mother was at work, RY would first put her brothers to bed after which
he would take her to bed with him. RY told her this was their special time. He
fondled her, digitally penetrated her, and made her kiss his penis.

[16]

AY
also testified to similar assaults that took place in her own bedroom.

[17]

AY
testified about her father becoming very angry when he saw her sitting on a
couch with a male friend. He later forced her to watch pornography on the
computer at his office, telling her that the rough sex depicted in the
pornography is what would happen to her if she got too close to boys.

[18]

The
family moved to Edmonton when she was 12. The sexual abuse continued there, although
rather than it taking place at night, RY abused her when she got home from
school when no one else was home.

[19]

When AY was in Grade 10, her parents separated following an incident
during which AYs mother became very angry at finding AY and RY cuddling
together on the couch under a blanket. After her parents separated, and over
the objections of her mother, AY went to live with RY. RY said he needed her to
take care of him. He told her that her mother and brothers did not want her
around. She believed him. AY and RY lived in various places after the
separation. RY continued to sexually abuse her until she moved into her
boyfriends parents home. The judge described the event that led to her
leaving home:

[30]      In the fall of 2003
when she was 16 years old, A.Y. moved into the home of her then-boyfriends
parents. She testified that the move was precipitated by an incident that occurred
after she had asked the accused for a ride to her boyfriends house so that she
could attend his birthday party. The accused told her that she would have to
provide him with a sexual favour in exchange for a ride. Despite her
protestations of please, not today, he took her arm and pulled her into his
bedroom where he told her to remove her clothes. As she did so, he removed his
own clothing. He then pushed her onto his bed and after asking A.Y. how she and
her boyfriend had sex, he, in A.Y.s words, rammed his penis in my vagina.
She testified that she had never before experienced such pain in that area.
A.Y. managed to push him away and she ran into the bathroom, locked the door
and stayed there despite the accuseds expressions of regret and pleas that
they talk about what had just happened. She stayed in the bathroom until the
accused left the apartment some three to four hours later. A.Y. testified that
this incident was the last time she was sexually abused by the accused. She
moved to her boyfriends parents home that same day.

[20]

AYs
brother NY testified about disclosures to him by AY about RYs sexual abuse.
These disclosures occurred before she reported the abuse to the police in 2012.

[21]

NY
testified that on several occasions beginning in 2007 and early in 2008 and
continuing until 2010, AY described to him their fathers sexual abuse of her.
Specifically, she told him about what would take place when she and RY visited
his office and about the assault that occurred the last night before she moved
out of the home.

[22]

DY,
the other brother, testified that when she was planning her marriage ceremony,
AY asked that he, DY, walk her down the aisle rather than her father. She
explained that RY had touched her and made her watch pornography.

Grounds of Appeal

[23]

The
first ground of appeal concerns what has been termed the E Evidence. RY says
that AY admitted to lying about how she had described the last assault to her
friend E. RY says that the manner in which her untruthfulness emerged ought to
have negatively impacted the judges overall assessment of her credibility.

[24]

The
second ground of appeal concerns AYs failure to disclose to the police her
request for a loan from her father just over a month before she made her
complaint to the police. RY says the judge failed to properly consider this
lack of disclosure in assessing AYs credibility and asserts that it is
relevant to prove she had a motive to lie about her father because she was
angry with him for refusing the loan.

[25]

RY
says AYs evidence was shown to be untruthful in respect to both these points,
as well as several other instances of inconsistency. He says that the judges
favourable view of her credibility is a misapprehension of her evidence given
that she was shown not to be credible.

Discussion

[26]

The judge summarized his conclusion that AY was a credible witness:

[78]       I have no difficulty accepting [AYs] evidence in
its entirety in this [referring to the reason she reported RY to the police]
and all other respects.

[79]      In summary, while A.Y.
was not a perfect witness, I am satisfied she was credible and reliable
and a good historian of the abusive events despite the number of years that
passed since the beginning of the assaults alleged against the accused. Having
viewed carefully and assessed A.Y.s demeanour as a witness and having assessed
her overall credibility, I am left with no reasonable doubt that she was
telling the truth about what the accused did to her on the numerous occasions
she described in her evidence.

[27]

RY
says that the judge was not justified in reaching this conclusion as to AYs
credibility given the demonstrated falsehoods in her evidence.

[28]

I
turn first to the E Evidence. AY gave a statement to the police in which she
said she never had vaginal intercourse with her father. She described the final
incident of abuse to the police in the way the judge described it (set out
above), except that she did not admit to penile penetration. Instead she said
that she was able to push her father away before he entered her. Similarly, in
her will-say statement to Crown counsel, she said that RYs penis had not
entered her fully before she was able to push him away. At the preliminary
inquiry, however, she testified that RY had in fact penetrated her with his
penis in this incident. Then she testified, again at the preliminary inquiry,
that she had earlier told her friend E that her father had vaginal intercourse
with her. At trial, AY admitted she had been untruthful when she told the
police no penetration had taken place. She described how her father did in fact
forcefully penetrate her and she admitted to lying at the preliminary inquiry
about reporting this to her friend E.

[29]

RY
argues that not only is AYs testimony about this event inconsistent but the
manner in which it came to light illustrates that she was deliberately untruthful.
In cross-examination, defence counsel put to AY the circumstances of her
interview with Crown counsel on June 29, 2016:

Q         And then on June 29th the Crown had an
additional interview with you; correct?

A          Yes.

Q         And at that time during that additional
interview the Crown put to you that page of your cross-examination; correct?

A          Yes.

Q         They showed it to you?

A          Yes.

Q         They asked you whether or not it was true;
correct?

A          Yes.

Q         And it was at that time on June 29th, 2016,
that you agreed that the  that it was not true; correct?

A          I told him it was not true, yes.

Q.        Okay. You do not have an explanation for why
you said that in court; correct?

A.         I was terrified
when I gave it. I  honest to God you really intimidated me and I was scared to
talk to you. I didnt even know how to look at you last time.

In a later part of her cross-examination she testified:

Q         Its fair to say that Mr. Stacey was the
one who asked you whether or not it was true that youd ever told [E] about the
penetration; correct?

A          I told him. As soon as I read it and saw
that, I told him. He didnt ask me.

Q         Right. He was the one who directed your
attention to page 47; correct?

A          Yes.

Q         And it was at that time you confirmed to him
that it was not true; correct?

A          Yes. And then I also left his office crying
because I cant believe that I made a mistake. Everyone makes mistakes. Were
human. Im going through 16 years in my life reliving it every single day and
now it being picked apart. I made a mistake and I can own up to that and I
apologize. Ive apologized so much for it, but Im not going to sit here and --
and say that this didnt happen to me.

This
is my life. This is my memories every single day, every night I go to bed. I go
to bed with his face in my head hoping that Im not going to have as bad of a
dream as I did the night before, as bad as the memory of the night before. This
takes a huge toll on a person and for me to be here standing up, having him in
the same room as me is huge. Its huge and Im very proud of myself that Im
here doing this right now and no one can take that away from me. Not one person
in this world can take away the fact that I stood up for myself finally.

[30]

The
judge did not agree that AYs correction of her earlier statements raised a
credibility concern. In response to RYs contention that AY should not be
believed at all, he said:

[72]      I disagree. While a
deliberate lie under oath is a serious matter and can taint a witnesss entire
testimony, this is not a case where the witness was caught in a manipulation or
deceit. I accept A.Y.s explanation that she was terrified at the time of
the preliminary inquiry, was intimidated by Ms. Helps cross-examination and
did not know how to respond. After that evidence was given at the preliminary
inquiry and while she was preparing to give her evidence at trial, she
voluntarily advised Crown Counsel that her evidence at the preliminary inquiry
regarding E. was untrue. She admitted her mistake in circumstances where she could
have easily said nothing without consequence. Having carefully watched A.Y. in
the witness stand throughout her evidence, I reject the submission that
her credibility as a whole is tainted by her earlier evidence regarding E.

[31]

On
appeal RY says that the judge misapprehended the E Evidence when he
characterized AYs admission of untruthfulness as a voluntary disclosure. He
says that this error alone should result in a new trial.

[32]

The
judge was alive to the submissions made about the E Evidence and RYs
characterization of AYs testimony as a lie  one that was fatal to her
credibility. However, he accepted her explanation for the conflict in her
accounts. In my view the judges characterization of AYs testimony was open to
him on the record. The untruthful testimony was not what she told E but rather
what she said at the preliminary inquiry she had told E. This part of the
transcript was drawn to her attention by Crown counsel. She told him it was not
true. RY says this was not a voluntary disclosure. The disclosure was made to Crown
counsel in the course of reviewing the preliminary inquiry transcript in
preparation for trial. In that sense it was voluntary.

[33]

AY
explained her erroneous testimony as being attributable to her fear of
aggressive questioning by defence counsel. The judge accepted that explanation.
He heard several days of her testimony. He was entitled on this evidence to
reach the conclusions he did including that it was voluntary.

[34]

RYs
next argument is that the trial judge erred in finding there was no evidence
that AY had a motive to fabricate her evidence. RY says that the judges
reasons are silent about the important evidence of AYs request to RY for a $5,000
loan which RY refused. RY says his refusal prompted AY to report him to the
police.

[35]

Under
cross-examination AY admitted that on her first complaint to the police, she
did not advise the police about the loan request. She did not do so until the
police confronted her with information they had received from E about the loan
request. RY says this is another instance of how AY was not forthcoming about
important evidence until confronted with the truth. RY also says that the trial
judges failure to address this key piece of evidence favourable to RY is a
significant error.

[36]

In
her cross-examination, AY was asked what motivated her to report to the police.
She testified as follows:

Q         What motivated you here to report this to the
police was anger at your father for not giving you the $5,000; correct?

A          Very wrong. Very wrong. I am here and I went
to the police because I look at my kids and I look at the purity of them and I
cannot imagine the fact of having their parents rob them from what I was
robbed. I was robbed my innocence, my childhood. I dont have any of that. Ive
lived 29 years rebuilding that and I look at my daughter and I cannot imagine,
it makes me sick to my stomach, at the thought of someone touching her the way
my father touched me.

That
is what brought me into the police. The simple fact that my children -- I can
give them a better life than my parents ever gave me. Knowing that I could help
get someone off the street that could hurt my kids, damn right Ill do it for my
children. If I didnt have kids, I would not be here, I can tell you that right
now. My kids are my motivation. They are what put my feet on the ground every
day and know that I can live further and further away from that abuse that Ive
walked away from.

[37]

In
his reasons for judgment, the trial judge responded to RYs assertion that the
refusal to lend money to AY motivated her complaint to the police:

[77]      Ms. Helps submitted that A.Y.s resentment of
her father began to grow after P., the accuseds new wife, entered her life, a
woman with whom A.Y. was in open conflict with. It was suggested to A.Y. during
cross-examination that it was her fathers refusal to give her any money when
she was penniless and had asked for financial assistance at the end of
April or early May 2012, coupled with a growing resentment of him
because of his relationship with P., that was her motivation for going to the
police in June of 2012.

[78]      Although A.Y. openly
admitted being in conflict with P., she denied any suggestion of her going to
the police was motivated by anything other than the determination to have her father
answer for his abuse of her and she provided what can only be described as an
emotional and earnest outpouring regarding her own daughters purity and
innocence and her resolve not to allow what happened to her happen to her
daughter. She candidly said that she would not have reported the abuse to the
police if she had not had children of her own. She admitted that she hates her
father, but that her hatred of him did not begin when he refused her money, but
rather when he forcibly penetrated her in the Surrey apartment. I have no
difficulty accepting her evidence in its entirety in this and all other
respects.

[38]

The
judge was supported in this conclusion by the evidence of AYs mother and two
brothers, who all testified that AY had disclosed to them RYs sexual conduct
towards her well before she reported the abuse to the police.

[39]

RY
says the combination of AYs less than truthful evidence on these two key
points ought to have led the judge to question her credibility about her
account of the entirety of RYs sexual abuse of her.

[40]

The
test for a misapprehension of evidence was described by Justice Stromberg-Stein
in
R. v. Swales,
2014 BCCA 350:

[46]

The
trial judges findings of fact, especially as based on assessments of
credibility, are entitled to deference on appeal. The standard of review is
palpable and overriding error.

[47]

A
misapprehension of evidence may undermine the validity of the verdict and give
rise to a miscarriage of justice under s. 686(1)(a)(iii) of the
Criminal
Code
. As Doherty J.A. stated in
Morrissey
, at p. 221:

[w]here a trial judge is mistaken
as to the substance of material parts of the evidence and those errors play an
essential role in the reasoning process resulting in a conviction then, in my
view, the accuseds conviction is not based exclusively on the evidence and is
not a true verdict.

[48]

The
threshold to be met in demonstrating a misapprehension of evidence warranting
appellate intervention is stringent. The misapprehension must be a question of
substance; must be material to the trial judges reasoning process; and must
play an essential role, not just in the narrative of the judgment, but in the
reasoning process resulting in conviction:
R. v. Lohrer
at para. 2, 2004
SCC 80, [2004] 3 S.C.R. 732. All three elements of the test must be satisfied
to establish a material misapprehension of evidence. The trial judge must be
shown to have erred by actually misapprehending the evidence. As LeBel J.
explained in
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3 at para. 53,
[t]he plain language or the thrust of the reasons must disclose an actual mistake".

[49]

I
t is not enough for the
appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguably weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions but simple disagreement with the judges differing view of the
evidence.

[41]

In
my view RY has failed to establish on appeal that the judge misapprehended the
evidence on either of these points. The judge was entitled to decline to draw
the inference urged on him by RY. The arguments made to us on appeal are mere
differences in interpretation on factual matters, as described in
Swales
.
They are not in any way misapprehensions of evidence. In my view RY is
essentially asking this court to reweigh the evidence that was carefully
considered by the trial judge and to reach a different conclusion about AYs
credibility than the one reached by the trial judge. In my view the trial
judges findings are amply supported by the evidence in relation to both
grounds of appeal.

[42]

I
would not accede to either of the arguments made on appeal. I would dismiss the
appeal.

[43]

FRANKEL
J.A.
: I agree.

[44]

GROBERMAN
J.A.
: I agree.

[45]

FRANKEL J.A.
: The appeal is dismissed.

The
Honourable Madam Justice Garson


