



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. J.G.B.,









2010 BCCA 2




Date: 20100104

Docket:
CA036740

Between:

Regina

Respondent

And

J.G.B.

Appellant





Publication
Ban

Pursuant to Section 486.4(1) of the
Criminal Code




Before:



The Honourable Madam Justice Huddart





The Honourable Mr. Justice Frankel





The Honourable Mr. Justice Tysoe




On appeal from:  Supreme Court of British Columbia, May 5, 2008

(
R. v. J.G.B.
, 2008 BCSC 1261, 1262; Cranbrook Registry No. 25073-2)




Counsel for the Appellant:



J.J.
  Saulnier





Counsel for the Respondent:



M.T.
  Ainslie





Place and Date of Hearing:



Vancouver,
  British Columbia





November 30, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  4, 2010









Written Reasons by
:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Madam Justice Huddart

The Honourable Mr. Justice Tysoe






Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

J.G.B. appeals his conviction for sexually
assaulting his adopted daughter, A.B.  The charge covers the period when A.B.
was between six and 15 years old.  J.G.B.s grounds of appeal concern the
admissibility and use of the evidence of J.W., who testified that J.G.B. kissed
her one night, while she and A.B. were lying in the same bed.

[2]

For the reasons that follow, I would dismiss
this appeal.

Factual
Background

[3]

The trial took place before Mr. Justice
Myers of the Supreme Court of British Columbia, sitting without a jury.  The
evidence called by both the Crown and defence is reviewed in detail in his
reasons for judgment, which are indexed as 2008 BCSC 1262.  Only a summary of
the evidence is required for the purposes of this appeal.

A.B.s Evidence

[4]

A.B. was born in 1990.  She and her younger
brother were adopted by J.G.B. and his wife, E.B., after their mother died.

[5]

A.B. testified that the sexual assaults started
just before her seventh birthday, shortly after she began living with J.G.B.
and E.B.  The nature of those assaults changed over time.

[6]

The first assault occurred when A.B. was sleeping
in the upper bunk in an upstairs bedroom she shared with her brother.  She said
that J.G.B. came into the room, stood on the bottom bunk, and inserted his hand
into her pants, rubbing her clitoris.  He also took her hand, put it inside his
pyjama pants, and used it to stroke his penis.  While doing this, J.G.B. kissed
A.B. several times.

[7]

A.B. said that J.G.B. repeated this conduct
three or four times a week until she was eight years old, when the bunk beds
were separated into two twin beds.  After this, J.G.B. would crawl into A.B.s
bed, and get under the covers.  As they were lying side-by-side, he would pull
their respective pyjama pants down and rub his penis against her clitoris until
he ejaculated.

[8]

When A.B. was eight or nine years old, she moved
into a bedroom in the basement.  She testified that that J.G.B. continued to
get into bed with her three or four times each week, touching her sexually, and
having her stroke his penis.

[9]

A.B. testified that when she was around ten
years old, her friend, J.W., would often sleep over with her, in the same bed. 
A.B. said that J.G.B. would get into bed between them, and tickle them or
engage in horseplay.

[10]

The nature of the sexual acts changed when A.B.
turned 12 years old.  J.G.B. would lick her vagina and have her kiss his penis
until he ejaculated.  J.G.B. would also kiss A.B. and rub her breasts, which
were beginning to develop.  A.B. testified that on three occasions shortly
before her 13th birthday, J.G.B. inserted his penis into her vagina.

[11]

A.B. said that the way J.G.B. kissed her changed
over time.  At first he would give her a short kiss (i.e., peck) on the lips. 
Later, he would kiss her by placing his tongue in her mouth.  She could not
recall when this latter form of kissing started, but said that it was while she
was sleeping upstairs.  It never occurred when anyone else was present.

[12]

A.B. said that sexual contact ended just before
she turned 15, when she told J.G.B. that if he did not stop, then she would
tell E.B.

J.W.s
Evidence

[13]

J.W. was seventeen when she testified.  She and
A.B. were best friends when they were nine or ten years old.  For approximately
one year, J.W. would often sleep over at A.B.s house.  She said that J.G.B.
would tuck them in, and lie in bed between them, playing around with, or
tickling them.  He would be both over and under the covers, and would stay with
them until they fell asleep.

[14]

In the midst of J.W.s examination in-chief, a
voir
dire
was held to determine whether the Crown could introduce evidence that J.G.B.
had kissed her.  J.W. was examined and cross-examined on the
voir dire
. 
She testified that the last time she slept over at A.B.s house, they used a
bed in the upstairs bedroom.  J.W. said that J.G.B. came into the room, which
was dark, and lay down in the bed between her and A.B.  After A.B. had fallen
asleep, and with J.W. nearly asleep, J.G.B. leaned over J.W. and gave her a
long kiss with his mouth open.  J.W. said it was like a kiss she had seen
J.G.B. give A.B.  After kissing J.W., J.G.B. got up and left the room.  J.W. then
heard J.G.B. and E.B. arguing.  This was the only time J.W. had been kissed by
J.G.B.

[15]

At the end of the
voir dire
, J.W. resumed
and completed her testimony on the trial proper.

Voir Dire
Ruling

(2008 BCSC 1261)

[16]

Before the Crown closed its case, the trial
judge stated that J.W.s evidence with respect to having been kissed by J.G.B. was
admissible as either original evidence, or as similar-fact evidence.  He
said he would provide reasons for that decision later.

[17]

The trial judge gave his
voir dire
ruling
just before he pronounced his reasons for convicting J.G.B.  In his ruling, the
trial judge noted that the Crown had advanced two alternative, but
inconsistent, bases for admitting J.W.s testimony:  (1) that J.G.B. had intended
to kiss A.B. and, therefore, evidence of the kiss was original evidence, and
(2) that J.G.B. had intended to kiss J.W., and evidence of the kiss was
admissible under the rules governing similar-fact evidence.

[18]

With respect to admitting J.W.s testimony as
original evidence, the trial judge said:

[18]      I will first consider whether the
evidence is admissible on the first alternative, namely that J.G.B. intended to
kiss A., but kissed J.W. by mistake.

[19]      I think that the evidence is
sufficient to permit a trier of fact to conclude that J.G.B. intended to kiss
A.  The room was dark.  He was in between both of the girls.  Nothing was said
before the kiss.

[20]      That
evidence would support A.s evidence that her father kissed her in bed.  I do
not consider that its prejudicial value exceeds its probative value.  As the
trier of fact, I am able to recognise that the evidence is supportive of only
one aspect of the sexual acts described by A.

[19]

The trial judge next considered whether J.W.s
testimony was admissible as similar-fact evidence, having regard to the framework
for deciding this question set out in
R. v. Handy
, 2002 SCC 56, [2002] 2
S.C.R. 908.  After finding that there had been no collusion between A.B. and
J.W., the trial judge continued:

[26]      Turning to the similarity of the
conduct to that comprised in the indictment, kissing is one act of many that
has been alleged by A.  There is some similarity, but it is limited.

[27]      When
considering the potential for prejudice of the evidence and the balancing of
its probative value against that potential prejudice, I think the factors that
I have admitted it into evidence on the alternative basis, and that this is a
trial without a jury, have a significant bearing.  I will have in front of me
evidence of the kiss in any event.  If I determine that J.G.B. did not intend
to kiss J.W. but, rather, A., the prejudice of leaving it open for me to
determine the weight  if any  of the evidence as similar fact evidence, is
minimal.

J.G.B.s
Evidence

[20]

J.G.B. denied sexually assaulting A.B.  He
testified that he only ever kissed A.B. with a peck on the lips or forehead to
say goodnight.  He said that he never lay down in bed with her, either on top
of or under the covers.  He expressed the view that such conduct was
inappropriate.  He could not recall ever tickling A.B. and J.W. during the
sleepovers, and denied ever lying in the same bed with them.

Reasons for Conviction

(2008 BCSC 1262)

[21]

The trial judge did not accept J.G.B.s
evidence, nor was he left with a reasonable doubt by it.  Rather, he accepted
A.B.s version of events.  He also accepted J.W.s evidence regarding the kiss,
but found that on that occasion J.G.B.s intention had been to kiss A.B.  In
this regard, the trial judge said:

[184]    I find J.W. to have been a credible
witness and her evidence to be credible.

[185]    I do accept her evidence that she
was kissed by J.G.B.  I conclude that J.G.B. intended to kiss A., not J.W.  I
say this because kissing J.W. would have been a different level of conduct; one
far more risky.  I think that to be unlikely.

[186]    I
recognise the limits of J.W.s evidence regarding the kiss:  namely, that it
did not involve any further activity similar to that alleged by A.  That said,
J.W.s evidence confirms A.s evidence that J.G.B. got into bed with the
children, which is something he denied.  That, in turn, lends credence to A.s
evidence that J.G.B. got onto the bed with her when she was alone, something
else he denied, as I noted earlier.

Analysis

[22]

J.G.B. submits that J.W.s testimony regarding
the kiss should not have been admitted because it does not meet the
requirements of the rules relating to similar-fact evidence.  J.G.B. further
says that, in any event, the inference drawn by the trial judge, i.e., that he
intended to kiss A.B., amounts to unfounded speculation based on impermissible
propensity reasoning.

Admissibility
of the Kiss Incident

[23]

J.G.B.s position is that the evidence of the
kiss was evidence of extrinsic discreditable conduct beyond that alleged in the
indictment that was introduced to show he had a propensity to engage in sexual
conduct with young girls.  He says that evidence is more prejudicial than
probative.  His factum contains a very detailed argument that discusses the
leading authorities dealing with the admission of similar-fact evidence.

[24]

In my view, a similar-fact analysis is
unnecessary in this case, as the trial judge did not err in admitting J.W.s
testimony as original evidence.  It was evidence, admissible in its own right, capable
of supporting A.Bs evidence with respect to J.G.B.s conduct towards her.

[25]

It is important to keep in mind that the kiss
incident does not involve conduct unconnected to the allegations that form the
subject matter of the charge.  The incident took place in A.B.s bed, in her presence,
and in circumstances from which it could be inferred she was the person J.G.B.
intended to kiss.  It is also important to keep in mind that, in admitting
the kiss incident, the trial judge was very much alive to the limited use that
properly could be made of that evidence.  As he noted in his ruling, as the
trier-of-fact (i.e., a judge sitting without a jury), he would be able to
confine the use of this evidence to the limited purpose for which he was
admitting it:  see
R. v. Arason
(1992), 78 C.C.C. (3d) 1 at 39
(B.C.C.A.).

[26]

Having concluded that the trial judge was
correct in admitting the kiss incident as original evidence, it is not
necessary to consider whether he was also correct in ruling it admissible as
similar-fact evidence.

Use of
the Kiss Incident

[27]

J.G.B.s position is that there was no basis in
the evidence to support the trial judges finding that he intended to kiss A.B.
rather than J.W., and that, in drawing that inference, the trial judge wrongly proceeded
on the assumption that he sexually assaulted A.B.  In his submission, the trial
judge engaged in the following flawed reasoning process:

(a)      contrary to the
presumption of innocence, he started with the assumption that J.G.B. had sexually
assaulted A.B.;

(b)      based on that
assumption, he found that J.G.B. had intended to kiss A.B.;

(c)      having found
that the kiss was intended for A.B., he treated J.W.s evidence as confirming
aspects of A.B.s testimony; and

(d)      having found
confirmation of A.B.s evidence, he accepted her evidence, and concluded beyond
a reasonable doubt that J.G.B. had sexually assaulted her.

[28]

I do not agree with that submission.  As I read
the trial judges reasons, he proceeded as follows:

(a)      he found J.W. to
be a credible witness, and her evidence reliable;

(b)      he accepted J.W.s
evidence that J.G.B. got into bed with her and A.B. (something J.G.B. denied);

(c)      he accepted J.W.s
evidence regarding the kiss incident (something J.G.B. denied);

(d)      he found it more
likely that J.G.B. intended to kiss A.B.;

(e)      he considered J.W.s
evidence as confirmatory of A.B.s evidence that J.G.B. got into bed with the
two of them, and supportive of A.B.s evidence that J.G.B. got into bed with
her when she was alone (something J.G.B. denied); and

(f)       based on a
consideration of the whole of the evidence, he accepted A.B.s evidence as
proving, beyond a reasonable doubt, that J.G.B. had committed the alleged
offence.

[29]

I am unable to see any impermissible reasoning
in that analysis.  The trial judge did not assume anything, nor did he use the
kiss incident as evidence of discreditable conduct.  Rather, he evaluated the
evidence in a logical manner, drawing inferences that are supportable on that
evidence.

[30]

In the end, this was a credibility case.  Having
found J.W. credible, the trial judge regarded her evidence as strengthening his
belief in the truthfulness of A.B.s evidence.  That is something that was open
to him to do.

Conclusion

[31]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The Honourable
Madam Justice Huddart

I agree:

The Honourable Mr. Justice Tysoe




