COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Nayyar, |
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2017 BCCA 297 |
Date: 20170816
Docket: CA43783
Between:
Regina
Respondent
And
Vidit Nayyar
Appellant
Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered.
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Before: |
The Honourable Madam Justice Saunders The Honourable Mr. Justice Goepel The Honourable Madam Justice Fenlon |
On appeal from: An order of the Supreme Court of British Columbia, dated January 15, 2016 (R. v. Nayyar, 2016 BCSC 199, Nanaimo Docket No. 77630).
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Counsel for the Appellant: |
R. Peck, Q.C. |
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Counsel for the Respondent: |
J.M. Gordon, Q.C. |
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Place and Date of Hearing: |
Vancouver, British Columbia June 22, 2017 |
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Place and Date of Judgment: |
Vancouver, British Columbia August 16, 2017 |
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Written Reasons by: |
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The Honourable Madam Justice Saunders |
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Concurred in by: |
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The Honourable Mr. Justice Goepel The Honourable Madam Justice Fenlon |
Summary:
Mr. Nayyar appeals from his conviction for sexual assault of his co-worker at a restaurant. Held: appeal allowed. There was DNA evidence that supported the proposition that the complainant had recent sexual activity with a person other than her current boyfriend and Mr. Nayyar, contrary to the complainant’s evidence she was “monogamous”. That evidence was accepted by the judge and used in the credibility assessment of the complainant and her conclusion that the complainant did not consent to the sexual activity alleged in the charge. In discussing this evidence, however, the judge shifted the burden of proof to Mr. Nayyar to prove beyond a reasonable doubt that the DNA of a third person could not have been deposited recently. This is a fatal error of analysis on a material aspect of the case. The verdict is set aside and a new trial is ordered.
Reasons for Judgment of the Honourable Madam Justice Saunders:
[1] Mr. Nayyar appeals from conviction by judge alone on January 15, 2016, of one count of sexual assault of the complainant.
[2] The appellant contends the judge erred in law in two ways:
1. in failing to apply the correct burden and standard of proof; and
2. by admitting a statement made by him to the police.
[3] In my respectful view, the judge erred in law by shifting the burden of proof in respect to DNA evidence, an issue material to the judge’s view of the complainant’s credibility and the finding of a lack of consent. On that conclusion, I will not address the issue of admissibility of Mr. Nayyar’s statement to the police.
[4] The incident leading to the charge occurred in the late evening of August 7, 2012, in a washroom at a restaurant at which both Mr. Nayyar and the complainant were employed. He was 22 years of age. The complainant was 19 years of age. On the evening of the incident Mr. Nayyar was the shift manager.
[5] The complainant started working at the restaurant in the spring of 2012. From shortly after she started work until sometime in early June 2012, Mr. Nayyar and the complainant had a romantic relationship. Towards the end of June 2012, after the relationship between Mr. Nayyar and the complainant had ended, the complainant started seeing another employee. That romantic relationship was ongoing at the time of the incident, August 7, 2012. The new boyfriend was a friend and roommate of Mr. Nayyar.
[6] There is not a great deal of controversy over the events of August 7, 2012, except on the issue of consent. Towards the end of the shift, Mr. Nayyar and the complainant were in the women’s washroom of the restaurant where a toilet was broken. Mr. Nayyar commented to the complainant that a posture she had struck earlier in the shift when completing a task that required her to lean out a window “makes everyone horny”. As the complainant was leaving the washroom, Mr. Nayyar asked for a hug. There was then an incident of sexual intercourse which the complainant said was not consensual and Mr. Nayyar said was consensual.
[7] The complainant told her sister and mother about the incident after she left work. In the early hours of August 8, 2012, the complainant’s mother reported the encounter to the police as a sexual assault. On August 8, 2012, a sexual assault examination was conducted of the complainant and articles of her clothing were seized. A DNA examination of the complainant’s underwear was conducted. That examination revealed the presence of DNA from three male persons, one of whom was identified as Mr. Nayyar, one was identified as the complainant’s current boyfriend, and the third was from a third male. The experts were unable to determine when the respective semen deposits were made.
[8] Expert evidence was called to the effect that human DNA could survive for years on clothing if unwashed and kept dry and away from natural light. The evidence was to the effect that DNA would not survive on clothing that was regularly washed. The complainant’s mother testified that she did laundry on a regular daily basis, including the complainant’s underwear.
[9] The complainant testified she had not been sexually active with anyone but Mr. Nayyar and her boyfriend for more than four months prior to August 7, 2012.
[10] The credibility of both Mr. Nayyar and the complainant was critical to the verdict. Mr. Nayyar contends that the judge wrongly relied upon the complainant’s sexual history, finding that the complainant was “monogamous” (the term used by the complainant), and reasoning it was thus less likely that the complainant had consented to intercourse. Mr. Nayyar contends that, having accepted the complainant’s evidence, the judge wrongly put the onus on Mr. Nayyar to prove the regular washings of the complainant’s underwear “beyond a reasonable doubt” and so erroneously shifted the burden of proof to him to establish an inconsistency in the complainant’s evidence.
[11] The Crown submits the judge’s conclusion that the underwear was washed less frequently or not thoroughly cleaned was not inconsistent with the DNA expert’s evidence, and the judge’s conclusion she could not find beyond a reasonable doubt that the underwear was washed regularly was “an inelegantly expressed conclusion”, but not a reversal of the burden of proof.
[12] Reviewing the reasons of the trial judge, I find the judge erred by shifting the burden of proof to Mr. Nayyar on the explanation for the three different DNA samples found on the complainant’s underpants. Given the judge connected the complainant’s evidence of monogamy to finding that the complainant was a credible witness and that lack of consent was proved beyond a reasonable doubt, this is a material error, in my view.
[13] The judge addressed the presence of DNA, the complainant’s evidence she was monogamous, and the issue of consent thus:
[142] I accept Ms. Harnett’s opinion that it would be highly unlikely that a semen sample could still be there in the complainant’s underwear after multiple regular washings over five months. I accept [the mother’s] evidence that she washed the clothes for the family of five on a daily basis and folded laundry. I accept her evidence that [the complainant’s] bedroom was in such a state that sometimes she could not tell what was dirty and what was clean.
[143] I cannot find beyond a reasonable doubt that the underpants in question had multiple regular washings during the five months before the incident. There is a reasonable possibility that that particular pair of underwear were washed less frequently or were wadded in a ball in the wash and did not receive a thorough cleaning.
[144] [The complainant], who I find to be a credible witness, said that she was monogamous with [the boyfriend] and that the only other sexual partner she had, other than [the boyfriend] and the accused, was in March or April 2012. The D.N.A. evidence of an unknown third semen sample does not lead me to conclude that the complainant was not being truthful when she testified that she did not have sexual intercourse with any other male other than [the boyfriend] and the accused in the time between her last boyfriend in mid-March 2012 or April and the date of the incident.
[145] The only reason that the D.N.A. evidence of the third unknown semen sample was allowed into evidence was to test the credibility of the complainant. The fact that she had sexual relations with another individual is not relevant, but if she was found to be lying about it, then that could damage her general credibility. I do not find the evidence probative. I believe the evidence of [the complainant], which was firmly given. Her credibility has not been damaged by this evidence.
…
[163] I do not find that [the complainant’s] credibility has been impeached. I accept her evidence that she did not consent.
[Emphasis added.]
[14] The judge further addressed the complainant’s evidence she was monogamous as evidence of the likelihood of consent:
[191] His explanation that they went to the washroom to check a toilet and that within minutes they were having consensual intercourse defies common sense to me in the circumstances. Their romantic relationship had broken up months ago. They were not in the practice of hugging one another and [the complainant] was in a monogamous relationship.
[Emphasis added.]
[15] Again, under the heading “Findings”, the judge referred to the complainant’s evidence she was monogamous in the context of determining the ultimate issue of consent:
[207] There was no indication that [the complainant] was still interested in the accused sexually. Her evidence was she had a boyfriend and she was monogamous with him. I do not believe she went from that situation to voluntary sexual intercourse within minutes of entering the bathroom.
[Emphasis added.]
[16] Finally, in conclusion the judge said:
[214] The accused’s evidence is rejected. It does not create reasonable doubt on the elements of this offence of sexual assault.
[215] Having accepted the evidence of the complainant and rejecting the evidence of the accused, I look to all the evidence that I have accepted and I am convinced beyond a reasonable doubt by the evidence that the accused is guilty.
[17] It may be, as Mr. Nayyar contends, that the judge’s use of the evidence of monogamy to assess the complainant’s credibility and to discount the possibility that Mr. Nayyar’s evidence raised a reasonable doubt on the issue of consent (or his alternative submission of honest but mistaken belief), is a problematic use of sexual history as explained in R. v. Takhar (1998), 103 B.C.A.C. 280, 169 W.A.C. 280. However, I prefer to rest this appeal on what is, in my view, an impermissible shifting of the burden of proof.
[18] Standing in the way of accepting the evidence that the complainant was monogamous, a matter that in the judge’s analysis bore upon the complainant’s credibility and the issue of consent, was the DNA evidence of three males, not two (Mr. Nayyar and the boyfriend), on the complainant’s underpants. The judge, contrary to the mother’s evidence of laundry practices and absent any evidence that such described wadding of underpants could result in a garment that was not clean after multiple launderings, posited the explanation that the complainant’s underpants were washed “less frequently or were wadded in a ball in the wash”. Because that explanation enhances the possibility that not all three DNA samples derived from recent sexual activity, in turn boosting the credibility of the complainant in saying she was monogamous with her boyfriend, it assumes an elevated position in the judge’s analysis.
[19] However, just before landing on the explanation of infrequent washings or the underpants wadding in the wash, the judge said: “I cannot find beyond a reasonable doubt that the underpants in question had multiple regular washings during the five months before the incident.”
[20] The Crown characterizes that statement as simply “inelegantly expressed” and really of no moment. In my view it is more: discussion of who must prove what beyond a reasonable doubt and the presumption of innocence is central to a criminal trial.
[21] I conclude that by these words the judge effectively shifted the burden to Mr. Nayyar to prove beyond a reasonable doubt that the complainant’s underwear was properly washed. To put it another way, the judge used the absence of proof beyond a reasonable doubt that the underpants had multiple regular washings as a basis for accepting the complainant’s evidence.
[22] This shifting of the burden, in my view, is fatal to the verdict.
[23] For the foregoing reasons, I would allow the appeal, set aside the verdict and order a new trial.
“The Honourable Madam Justice Saunders”
I AGREE:
“The Honourable Mr. Justice Goepel”
I AGREE:
“The Honourable Madam Justice Fenlon”