



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Jean,









2012 BCCA 29




Date: 20120120





Docket:
CA035452

Between:

Regina

Respondent



And

Remi Claude Jean

Appellant









An
Order has been made directing that the identity of the complainant and any
information that could disclose her identity not be published in any document
or broadcast in any way pursuant to Section 486(3) (now Section 486.4(1)) of
the
Criminal Code
.




Before:



The Honourable Madam Justice Ryan





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice D. Smith




On appeal from the
Supreme Court of British Columbia, July 21, 2005 (
R. v. Jean
, Terrace
Registry, Docket Number 24039-2 & 24039-3)




Counsel for the Appellant:



R.J. Kincaid





Counsel for the Respondent:



E.A. Campbell

S.E.
  Lacusta, A/S





Place and Date of Hearing:



Vancouver, British
  Columbia





February
  10, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia





January 20, 2012









Written Reasons by
:





The Honourable Madam Justice Ryan





Concurred in by:





The Honourable Mr. Justice Chiasson

The Honourable Madam Justice D. Smith






Reasons for Judgment of the
Honourable Madam Justice Ryan

Introduction

[1]

The appellant, Remi Claude Jean, appeals his July 21, 2005 conviction
for indecent assault following a trial in the Supreme Court in Terrace before
Mr. Justice Bauman (as he then was) and a jury.

[2]

The one-count indictment alleged an historical sexual assault.  It read:

Remi Claude JEAN, between the 1
st
day of January,
1972 and the 31
st
of December, 1979, all dates inclusive, at or near
Delta or Surrey, in the Province of British Columbia, did indecently assault a
female person, [Ms. B], contrary to s. 149(1) of the
Criminal Code
.

[3]

The appellant says that the trial judge erred in admitting evidence
which was highly prejudicial to him, and that, having admitted the evidence,
erred in instructing the jury as to its use.  He also says that the trial judge
was wrong in allowing the Crown to call evidence of an assault which occurred
outside the time-frame of the indictment.

Evidence at Trial

The Case for the Crown

[4]

The complainant, Ms. B, was 38 years of age at the time of trial.  She
alleged that Mr. Jean assaulted her over a number of years when she was between
the ages of five and twelve.

[5]

When she was three years old, the complainant, along with her older
sister and younger brother, went to live with Mr. Jeans wifes parents in North
Delta.

[6]

Ms. B testified that Mr. Jean, his wife, and their two children were
regular visitors to the foster home and that when she was six years of age, the
Jean family lived in the basement of the home for about six months.

[7]

Ms. B testified that the appellant began to sexually abuse her when she
was about five years old.  He would pick her up, put her on his lap, put his
hands between her legs, and touch her thighs and rub her vagina.  The touching
started before the Jeans moved into the foster home and continued during their
stay.

[8]

Ms. B testified that, once the Jean family was living in the residence,
the appellant would often go to her bedroom at night.  He would lie down on her
bed, kiss her on the cheek, lift her nightie, and rub her behind and her
vagina.  While he was doing that, the appellant would rub his penis.  Sometimes
Mr. Jean lay beside her; other times he would lie on top of her and rub his
penis against her vagina, ejaculating on her stomach.

[9]

The complainant testified that she was scared by what was happening to
her.  She said that Mr. Jean told her that he loved her, that what was going on
was their secret, that no one would understand, and that she would be separated
from her sister and her brother

if anyone
found out.

[10]

The complainant said that she reported Mr. Jeans behaviour to her
foster mother when she was about five years of age.  She said her foster mother
angrily dismissed the complaint.

[11]

Ms. B testified that she recalled part of an incident where she awoke in
the bathtub.  There was blood in the bathtub and she was crying.  Mr. Jean was
kneeling beside the tub stroking her hair and telling her it would be okay. 
She did not go to school the next day because she was sore in her vaginal area.
 The complainant testified that she told her foster mother that she was sore
and could not get out of bed.  Her foster mother made no further investigation
of her illness.

[12]

The complainant testified that when she was eight or nine years of age,
the Jean family had their own home in Surrey.  Ms. B said that she would visit
the home at the request of Mr. Jeans wife.  On such occasions, she would be
asked to help with the cleaning and chores.  She said that the sexual abuse continued
in Surrey at the Jean home.  The appellant would lie with her on the couch to
watch television and Mr. Jean would rub his penis against her behind.  At other
times, Mr. Jean would have her lick his penis and put it in her mouth.

[13]

Ms. B said that she occasionally stayed overnight at the Jeans and when
she did so, she slept in Mr. and Mrs. Jeans bed between them.  While in bed,
Mr. Jean would slip his hand under her nightclothes and rub her chest and
vagina.  The appellant would have her touch his penis before he rolled over and
went to sleep.  Ms. B said that she thought Mrs. Jean was asleep when this
happened.

[14]

Ms. B testified that she did not tell either of her siblings about what
Mr. Jean did to her.  She said that sometimes she would wake up frightened in
the middle of the night.  When that happened, she would awaken her sister and
tell her that she could not breathe.  Her sister would put her head out the
window, tell her to breathe deeply, and hold her until she could breathe again.

[15]

The complainant testified that the incidents ended after she told her
foster father about Mr. Jeans assaults and threats during a car ride to
Vancouver.  Ms. Bs foster father told her that no one would separate her from
her siblings, drove back home, and confronted the appellant with what Ms. B had
told him.

[16]

Ms. B said that not long after this confrontation, she moved with the
foster family to Quesnel.  Matters became difficult between her and her foster mother,
who often struck her and her siblings.  When Ms. B was 12 years of age, she ran
away with her sister, and they both started living with a different foster
family.

[17]

Ms. B testified that one time after she had moved out, she went to her
former foster home for an Easter egg hunt and dinner at the request of her brother,
who still lived with the foster family.  The appellant and his family attended
the dinner as well, which upset Ms. B.  She decided to leave.  Her former
foster mother said that Mr. Jean would drive her back to her new home.

[18]

Ms. B continued her testimony:

And I said, No, thats okay, Ill
walk.  And where they lived from town where I lived, it was like probably a
two-hour walk, and it was already dark and it was like the country, so it was
-- there was lots of woods.  So she wouldnt let me walk and I agreed to have
them let Remi drive me home.  And on the way home he was trying to put his
hands on my legs and pulling me in to hug him, and I kept swearing at him and
telling him to leave me alone.  And then when we got down to Marlenes house where
I was staying,
he said that hed give me a hundred dollars because thats
how much he gave my sister to sleep with him
.  [Emphasis added.]

[19]

This was the only mention of this last incident in the Crowns case. 
Defence counsel left it alone in cross-examination.

[20]

Ms. Bs sister testified.  She confirmed that Mr. Jean and his family
had lived at the foster home for less than a year.  She described herself as
being like Ms. Bs mother.  She recounted how Ms. B would come to her during
the night complaining that she could not breathe.  Ms. Bs sister said that she
would put her head out the window and tell her to breathe.  She would hold and
support Ms. B.

[21]

Ms. Bs sister said that Mr. Jean called her sister names and would
often ask her to sit on his lap and give him a kiss.  She said that she knew
that Mr. Jean made her sister uncomfortable and that she would cry, but back
then she knew nothing of the sexual abuse.  Ms. Bs sister said that she liked
Mr. Jeans wife very much and could not understand back then why her sister did
not want to visit the Jean family home in Surrey.

[22]

Ms. Bs sister recalled an incident when her foster father was angry
with Mr. Jean.  She said that her foster mother was also very angry and
called the two girls homewreckers.  She did not know the reason for this
outburst.

[23]

Ms. Bs sister was not questioned in direct or cross-examination about
whether Mr. Jean had paid her for sex
or
otherwise
directed any inappropriate behaviour toward her.

The Case for the Defence

[24]

Mr. Jeans wife testified on behalf of her husband.  She said
that Ms. B never visited their Surrey home alone.  She did not recall Ms. B
staying overnight and, if she had, she would not have slept in the same bed as
Mrs. Jean and her husband.  Mrs. Jean said that she and her husband lived with
her parents in Vancouver when they were first married, but not afterward.  Mrs.
Jean had undergone recent surgery at the time of trial.  After being unable to
recall the layout of her parents home, or when her mother had died, Mrs. Jean
agreed with Crown counsel that she did not have a good memory.  She said,
Right now Im just ‒ um, confused, sir, cause Im not well.  My
memorys not very good right at this moment.

[25]

Mr. Jean testified.  He too had difficulties with his memory which he
attributed to heart attacks and medication.  He denied any inappropriate
behaviour with Ms. B.  He said that he had no memories of the complainant
beyond the fact that she was a foster child of his in-laws.

[26]

Mr. Jean was asked by defence counsel (not counsel on this appeal) about
each of the incidents to which Ms. B had testified.  He specifically denied
each kind of abuse to which the complainant testified.  Elaborating, he said
that Ms. B only visited his home with her foster parents and never stayed
overnight.  He also said that the incidents alleged to have occurred in his bed
beside his sleeping wife could not have happened because his wife was a light
sleeper.

[27]

When counsel for the defence reached the last incident, these questions
and answers took place:

Q [Defence counsel]   Now, she said lastly sir, that
there was a time when -- after the family moved to Quesnel, when she was -- had
run away from home, I believe she said, with her -- with her sister, or at
least was not living in the [original foster home] in Quesnel and was there at
Easter for an Easter egg hunt and for dinner, and you -- you and [your wife]
were there --

A [Mr. Jean]     Yes.

Q         -- do you recall that?  Do your recall her
being there?

A          Yes.

Q         You remember that?

A          Vaguely, but yes.

Q         All right.  And that you gave her a ride home
--

A          Yes.

Q         -- or back to where she was living, at least?

A          Yes.

Q         And that you -- just be sure of this.  Give me
a moment.

You tried to put your hands on her and she
was swearing at you, and that you said to her that you would give her $100 to
sleep with her; thats how much you gave her sister.

A          Um, I never
touched her.  I did offer her $100, and I never offered her sister anything.

[28]

On cross-examination, Mr. Jean was asked about each of the incidents
(with the exception of the last).  He agreed that he had a bad memory and could
not say whether or not each incident happened.  This exchange occurred between
the prosecutor and Mr. Jean:

Q         ... Do you actually have any memory of her sitting
on your lap at all?

A          Not really.

Q         Not really, actually means no, doesnt it, Mr.
Jean?

A          Well, its not in my mem -- not in my knowledge.

Q         Okay. 
Lets start with -- lets try -- Im not trying to be difficult here, but I
dont want to -- I want to be clear and -- and I want to really understand what
youre saying, and the jury really has to understand what youre saying, okay.

When
you say not to your knowledge, does that mean you have no memory of her ever
being on your lap?

A          Thats right.

Q         So you
have -- you couldnt say whether it happened, and you cant say whether it
didnt happen?

A          Thats true.

Q         And,
Mr. Jean, you cant say whether you touched her on her vagina or you didnt
touch her, because you dont know --

A          Thats right.

...

Q         Mr.
Jean, the -- there was the -- what we might call the bathtub incident -- you
know, where [Ms. B] talked about waking up and being in the bathtub and having
her head scrubbed and you helping her clean up.  That whole description that
she gave of something going on there, you dont know whether that happened or
not, is that fair?

A          Well, truthfully, no.

Q         And she
talked about some times when you made her lick your penis; you put your penis
in her mouth.  You dont know whether that happened or not either, do you --

A          No, I dont.

Q         And the
visits at your house after you moved out from [your in-laws] place, there was
a comment -- there was an accusation and she -- [Ms. B] told us about lying on
the couch and about you rubbing your penis on her behind.  You cant say
whether that happened or not, can you?

A          No.

Q         And she
also makes some -- she told us about some things that she said happened when
she slept in the bed between you and your wife.  You cant say whether that happened
or not, can you?

A          I know she wouldnt be sleeping in the bed with me
and my wife.

Q         Why is that?

A          Because she wakes up so easy.

Q         She your wife, wakes up so easy.

A          She wakes up really easy.

Q         Okay.  Has she always?

A          Yes.  As far as I know

Q         Oh.  Because weve got a memory problem there,
right, so if you --

A          Well, as far as I can remember.

Q         Okay.

A          You
know, Im going by [the] last 10 years or so, that I can vaguely remember that
she just -- if I turn over, shes awake, and ...

Q         Okay.  Just one moment, please.

Okay
-- sorry.  Mr. Jean, when you were -- when Mr. Crampton was asking you
questions a few minutes ago and you were telling him, No, that didnt happen,
you werent really sure when you were giving those answers --

A          No, I wasnt sure.  Defensive answers.

Q         Okay. 
Can you think of any other defensive answers youve given today?

A          No.

[29]

Ms. Bs foster father testified by video conference.  He was 84 years of
age at the time of trial.  He denied that the Jeans lived with his family after
they were married.  He said that his daughter and her husband would visit the
home about once a week when they lived in Surrey.  He denied being told by Ms.
B that Mr. Jean had assaulted her and confronting Mr. Jean with such an
allegation.  The foster father testified that he had a serious diabetic problem
which affected his memory, but that he felt fine during his testimony.

The Judges Instructions
to the Jury regarding the $100 incident

[30]

No objection was made by the appellants trial counsel when Ms. B
testified that [Mr. Jean] said that hed give me a hundred dollars because
thats how much he gave my sister to sleep with him.  Trial counsel referred
to this as the $100 incident.

[31]

Shortly after counsel for Mr. Jean began his cross-examination of Ms. B,
the court adjourned for the lunch break.  When the trial resumed after the
break, the trial judge spoke to counsel in the absence of the jury.  The trial
judge said that he was concerned that the statement about the $100 incident
might lead the jury to reason from propensity and advised counsel that he proposed
to warn the jury against that.  Both counsel expressed content with this course
of action.  As a result, the trial judge said this to the jury:

Members of the jury, just one
item before we continue.  Ill refer you to this morning to the evidence where
[Ms. B] indicated she was 12 and she says that the accused offered her a
hundred dollars to sleep with him, and indicated that thats what he had paid
her sister.  That was allegedly said.
I just want to warn you that the
fact, if you accept it, that that happened and that the accused might have done
something inappropriate with Ms. [Bs] sister should not be taken as evidence
that he would more likely do something with Ms. [B].  We call that propensity
evidence and it wouldnt be fair to an accused person if we used evidence like
that in another incident to prove the incident before the court.
Thank
you.  [Emphasis added.]

[32]

After the jury addresses, in which both counsel had made references to
the $100 incident and the judges warning about it, counsel made submissions to
the trial judge as to what he should include in his jury charge.  By this time,
counsel for Mr. Jean was suggesting that the statement about the $100 incident ought
to have been the subject of a
voir dire
to determine its admissibility
because it amounted to similar fact evidence.  Defence counsel agreed that the
judges propensity warning had been appropriate.  That said, defence counsel
ventured the opinion that the evidence probably should have been excluded
because its prejudicial value outweighed its probative value.  Counsel for the
Crown took the position that the statement was an inextricable part of the
indecent assault narrative and admissible on that basis.

[33]

In the end, the trial judge told the jury this:

Now let me say something about what we are calling the
hundred dollar incident, just to clarify my instruction to you on that.

The reference to Mr. Jean offering
a hundred dollars to [Ms. Bs] sister, which was also part of [Ms. Bs]
evidence, should not be used by you to decide that because of that, because he
might have done something with respect to [Ms. Bs] sister, that Mr. Jean
is more likely to have done these things to [Ms. B].  But you can of
course consider this incident, and the fact that Mr. Jean admits it took
place, although he was not totally clear on the purpose of it, in assessing [Ms.
Bs] credibility.  You may view it as a bit of corroboration.  In itself,
simply offering $100 in those circumstances in itself, although it may be
distasteful, is not an indecent assault, but it is a piece of evidence for you
to consider.

The Grounds of Appeal

[34]

The appellants position was that the trial judge erred:

a)

in admitting,
without a
voir dire
, the complainants testimony about the $100 incident;

b)

in failing to
tell the jury that they could not use the statement as proof that the
complainants sister had sex with the appellant;

c)

in failing
to advise the jury that they could make no use of the statement that the
appellant had sex with the complainants sister; and

d)

in incorrectly
charging the jury with respect to corroboration.

[35]

At the hearing of the appeal, counsel for the appellant also took the
position that the evidence of the last assault (the $100 incident) was inadmissible
as it occurred beyond the date set out in the indictment.

Discussion

The Grounds of Appeal Relating to the Charge to the Jury

[36]

The first step in the analysis must be whether the evidence of the $100
incident was admissible at all.

[37]

When defence counsel questioned its admissibility prior to the jury
charge, Crown counsel took the position that the evidence was admissible
because it was part of the
res gestae
, and [spoke] to the intention in
his mind ... the sexual intention.  It seems Ms. Bs comment about her sister
had surprised Crown counsel.  He said to the trial judge: I was concerned and
tried to be so careful after my witness mentioned about the sister business,
and thats why I stayed very carefully away from that.

[38]

It was the sister business that concerned the defence.  Defence
counsel described it as similar fact evidence or evidence of propensity and
expressed doubt that it should have been admitted.

[39]

Crown counsel on this appeal (who was not counsel at trial) accepts that
the statement was not admissible to prove that Mr. Jean offered $100 to Ms. Bs
sister for sex.  Nor was Mr. Jeans interest in Ms. Bs sister, if he was ever
interested, a part of the Crowns theory.

[40]

The Crowns position on appeal is that had the issue been aired at trial,
the statement would inevitably have been admitted in its entirety.  Ms.
Campbell, counsel for the Crown on this appeal, argues, correctly in my view, that
Ms. Bs testimony about what Mr. Jean said to her was an integral part of the
last instance of indecent assault.  It was powerful evidence of Mr. Jeans
indecent intent in touching the complainant and showed the lengths to which he
would go to overcome her resistance.  As Ms. Campbell puts it in her factum:

[Ms. B] testified that the abuse
escalated and continued for years but she remained silent because of the
Appellants threats.  He frequently told her that it was their secret, and that
if she told anyone then her brother and sister would be taken away.  By the time
of the last incident, when [Ms. B] was twelve years old, the family had
separated and she was in a different foster home.  When the Appellant drove her
home that time and tried to touch her legs and pull her towards him, his prior
means of control no longer had any effect because the family had separated. 
Rather than allowing the abuse to continue out of fear, [Ms. B] said she told
him to leave her alone and swore at him.  The Appellant tried a different
approach to gain her compliance  he offered her money and, to make it appear
more palatable, he said that her older sister had accepted the same offer
previously.  Accordingly, the statement demonstrated the Appellants intent at
the time of the alleged touching in the vehicle and was an integral part of the
incident.  The statement was triggered by [Ms. Bs] resistance and was a means
to overcome that resistance.

[41]

The Crown suggests other bases for admissibility, but it is unnecessary
to discuss them here.  It is enough to say, for purposes of this appeal, that
the evidence was admissible.  In my view, it was properly admitted at trial. 
The probative value was high, and the prejudicial value could be overcome with
a proper warning to the jury.

[42]

The question becomes whether the trial judge erred in his instructions
to the jury as to the use they could make of the statement.  To repeat, the
trial judge told the jury:

[t]he reference to Mr. Jean offering a
hundred dollars to [Ms. Bs] sister, which was also part of [Ms. Bs]
evidence, should not be used by you to decide that because of that, because he
might have done something with respect to [Ms. Bs] sister, that Mr. Jean
is more likely to have done these things to [Ms. B].

[43]

Mr. Kincaid, counsel for Mr. Jean on this appeal, argues on behalf of
the appellant that the trial judge should have warned the jury that they could
not use the statement as proof that the complainants sister had sex with the
appellant, and that they could make no use at all of the statement that the
appellant had sex with the complainants sister.  I agree with Mr. Kincaid that
it would have been better if the trial judge had told the jury that the
complainants recitation of what the appellant said to her was not evidence
that the appellant had, in fact, offered her sister money for sex.  But I also
agree with Ms. Campbell that this failure made no impact on the essential
instruction which was that the jury must not use the statement to infer that,
because Mr. Jean had had sex with the complainants sister, he likely had sex
with the complainant as well.  Whether sex with the sister was proven or not,
it was not probative as to whether he had sex with the complainant.  In my view,
the trial judge correctly conveyed to the jury the essential point: that it could
not use this evidence for propensity reasoning.

[44]

The trial judge also instructed the jury that they could use the fact
that Mr. Jean had admitted to offering the complainant money in assessing
Ms. Bs credibility, as a bit of corroboration.  Again, to repeat, the
trial judge said:

[b]ut you can of course
consider this incident, and the fact that Mr. Jean admits it took place,
although he was not totally clear on the purpose of it, in assessing [Ms. Bs]
credibility.  You may view it as a bit of corroboration.  In itself, simply
offering $100 in those circumstances in itself, although it may be distasteful,
is not an indecent assault, but it is a piece of evidence for you to consider.

[45]

The appellants counsel argues that this instruction fails to clearly
indicate to what part of the statement the trial judge was referring as
evidence the jury could use as corroboration.  I disagree.  It is clear from
the instruction that the trial judge is referring here to Mr. Jeans admission
that he offered the complainant money when he was driving her home.

[46]

Next, counsel for the appellant submits that the trial judge should have
avoided the use of the term corroboration altogether.  However, if he was
going to talk about corroboration, he should have referred to evidence that tended
to corroborate the appellants testimony.

[47]

I agree with counsel for the appellant that the trial judge should have
avoided the use of the word corroboration, which has become a term of art.  I
agree that, without further instruction, the term can be confusing.  However,
in the context of this case, I am of the view that no harm was done by using
that term.

[48]

As counsel for the Crown points out, it was Mr. Jeans trial counsel who
first referred to the concept of corroboration in his address to the jury.  He
began by telling the jury that before the law was changed, cases such as this
required corroboration, whereas now they do not.  He suggested that, in
searching for the truth, the jury might nonetheless look for corroboration when
it came to assessing the complainants evidence.  Crown counsel followed suit,
arguing that if the jury was to look for corroboration, there was much evidence
supporting the complainants version of events.

[49]

It was in this context that the trial judge made the impugned remarks. 
I cannot say that he was wrong to do so.

[50]

I am also of the view that no unfairness to the appellant
resulted from the trial judges omission to instruct the jury on the pieces of
evidence that might corroborate Mr. Jeans version of events.  It is hard to
say what they could be.  Mr. Jeans credibility had been so badly damaged during
the course of his testimony that his counsels address to the jury focussed on
the weaknesses of the evidence of the complainant, rather than the strengths of
the appellants testimony.

[51]

I would not accede to the grounds of appeal related to the admissibility
of the $100 incident or the trial judges instructions to the jury with respect
to it.

The Dates on the Indictment

[52]

The indictment alleged a continuing assault from January 1, 1972 to December
31, 1979.  Ms. B testified that the last incident occurred when she was 12
years old.  Her birth date was in May of 1967.  If the incident she spoke of
occurred at Easter when Ms. B was 12, then the incident occurred in 1980,
shortly before the complainants 13
th
birthday.

[53]

Counsel for the defence submitted that, as the incident occurred outside
the dates of the indictment, it should not have been admitted at trial as part
of the continuing assault.  However, the date of the last incident was not raised
as an issue by the defence at trial.  It was first raised in this Court.  Time
was not an essential element of the offence, nor was the appellant prejudiced
by this mistake.  This ground of appeal should be dismissed.  (See
R. v. S.D
.,
2011 SCC 14, [2011] 1 S.C.R. 527.)

Conclusion

[54]

Although every accused is entitled to a fair trial, no trial is perfect. 
Examining Mr. Jeans trial as a whole, I conclude that it was fair.

[55]

I would not accede to any of Mr. Jeans grounds of appeal.  In the
result, I would dismiss the appeal.

The Honourable Madam Justice Ryan

I Agree:

The
Honourable Mr. Justice Chiasson

I Agree:

The Honourable Madam Justice
D. Smith


