IN THE SUPREME COURT OF BRITISH COLUMBIA
R. v. Berry,
2013 BCSC 1878
Registry: New Westminster
on Publication: s. 486.5(1) Criminal Code:
The name of the complainant shall not be published in any document or broadcast or disclosed in any way.
Before: The Honourable Madam Justice H. Holmes
Reasons for Judgment
Counsel for the Crown:
Counsel for the Accused:
Place and Date of Trial:
New Westminster, B.C.
December 3-7, 2012
Place and Date of Judgment:
New Westminster, B.C.
October 17, 2013
 Glen Berry faces one charge of sexual assault against T.P., his former common law partner, three charges of voyeurism in relation to T.P. and another person, and one charge of assault against T.P. The charges are under sections 271, 162, and 266 of the Criminal Code, respectively.
 The evidence supporting the charges of sexual assault and voyeurism consists mainly of video-recordings found on Mr. Berry’s camcorder and computer, together with admissions of fact supplying some supplemental details concerning those video-recordings. Mr. Berry does not dispute the Crown’s position that the evidence supports findings of guilt of these offences. I will briefly describe them later in these reasons.
 The question for determination in the trial is whether the charge of assault (charged in Count 2) is proven beyond a reasonable doubt.
 Certain facts relating to the events that gave rise to the charge of assault are not in dispute.
 It is agreed that T.P. and Mr. Berry had ended their relationship a few days before the events, which took place in the late evening of September 23, 2010, after Mr. Berry came across some handwritten notes written during the course of counselling he was not aware T.P. was undergoing. Mr. Berry still lived in the home, sleeping separately from T.P. in a makeshift bed in the basement, and was to be moving out as soon as he had alternative arrangements. The events took place when Mr. Berry went into T.P.’s bedroom to ask about the notes.
 However, T.P. and Mr. Berry gave very different accounts about how Mr. Berry behaved when he made his inquiries.
 By T.P.’s account, Mr. Berry confronted her angrily in a physically aggressive way for an extended time, and ended up picking her up and flinging her some distance across her bed.
 By Mr. Berry’s account, it was T.P. who was the first to be violent, and he used only the limited amount of force against her that was necessary to prevent her continuing that violence, and in order to allow him an exit pathway from her bedroom.
 The issue of whether the assault took place must be determined in accordance with the well-known principles in R. v. W.(D.),  1 S.C.R. 742, which deconstruct (usually for a jury) the fundamental principle that an offence is not proven if there is a reasonable doubt about any one or more of its elements. The standard of proof requires more than a mere choice between competing versions of the events given by witnesses, including the accused: if a reasonable doubt about an element of the offence arises from any evidence, alone or in combination with other evidence, the court must acquit. In the application of this principle, the court may accept all, some, or none of each witness’s evidence.
 The evidence for consideration in this case includes not only T.P.’s and Mr. Berry’s evidence, but also other viva voce evidence and exhibits tendered in the trial (including evidence given during the voir dire and by agreement incorporated into the trial), as well as extensive admissions of fact.
 I will first outline T.P.’s evidence about the events, and then Mr. Berry’s, before then considering whether the evidence as a whole establishes guilt beyond a reasonable doubt.
 There is no dispute that if the evidence establishes beyond a reasonable doubt that the events took place as T.P. described, Mr. Berry’s acts amounted to the assault as charged.
 T.P. testified that she had gone to bed at about 10:30 p.m., and was awoken at about 11:30 p.m. when Mr. Berry opened the bedroom door, turned on the light and entered, and confronted her with handwritten notes from the counselling session she had attended. She testified that Mr. Berry repeatedly flicked the notes in her face and poked her in the chest with his finger, while demanding that she explain the notes and the counselling. She testified that Mr. Berry was angry and appeared to be drunk, and that when she failed to respond to his behaviour he said that he would continue it all night because it was fun. He eventually left the room after about an hour, saying that he was going to get another beer and indicating or implying that he would return.
 T.P.’s bedroom door had no lock, so to try to barricade the room she sat on the floor with her back against the door, one leg braced against the bed frame. When Mr. Berry returned, he told her through the door that she was mistaken if she thought she would keep him out, and he kicked the door several times with force that she could feel in her lower back and which moved her forward with each kick. To get out of the way of this force, T.P. scrambled onto her hands and knees. Mr. Berry then opened the door and entered.
 T.P. testified that she stood up and told Mr. Berry that he had no right to be in her bedroom. When he responded that he had as much right as she did to be there, she placed her hands flat on his chest and walked forward, moving him backwards toward the door.
 The first time T.P. did this, Mr. Berry grabbed her hands and flung them away from his chest. When she then repeated her words and her actions, pushing him backwards again, Mr. Berry flung her hands away again, and then, grabbing her upper arms from behind her and squeezing hard, picked her up and threw her onto the bed. T.P. testified that she had been standing approximately three feet from the end of the bed, and she landed across the bed with her head near the headboard. Mr. Berry then left the room, telling T.P. that “this” was all her fault.
 T.P. testified that she was concerned not to remain cornered in the bedroom but also not to escalate the situation, so she put on her housecoat and followed Mr. Berry down to the main floor living area. She testified that he was positioned between her and the telephone and the door, so she did not try to phone for help or to leave the house. Instead, she remained in the living area with Mr. Berry as he watched TV. He also spoke to her about her adult son in a derogatory way. According to T.P., it had been Mr. Berry’s hostility to the idea of the son moving in with the two of them that caused the break-up of their relationship. As I will explain later, Mr. Berry attributed the break-up to a different cause.
 T.P. testified that at about 3:00 a.m. Mr. Berry went down to the basement family room. After half an hour or so, she went quietly down to check on him and, seeing that he was asleep, then phoned a friend who she arranged to meet at the police station. She drove to the police station and reported the assault.
 T.P. testified that the assault caused several injuries: bruises on her chest where Mr. Berry poked her; finger mark bruises to both arms where he grabbed her; a scrape along her collarbone that she could not correlate with a particular action during the course of events; and strain or soreness to her back which continued for a short while.
 Mr. Berry testified that the break-up of his relationship with T.P. had nothing to do with the prospect of her adult son moving in with them. Rather, he came to realize that he did not love T.P. sufficiently to marry her, and, on September 19, 2010, therefore backed out of the relationship. The sleeping arrangements changed, in the way T.P. described, and Mr. Berry planned to leave the home at the end of the month. He testified that his decision came as a shock to T.P. and upset her, but that she eventually came to terms with it.
 Mr. Berry testified that after he found the notes which indicated that T.P. had been in counselling he went to her bedroom to inquire. He denied that he was angry: he was a bit upset that he had not known about the counselling, but he was happy for T.P. that she was receiving it.
 He also denied that he was intoxicated. He testified that he had consumed two prescription pain killers in the morning for chronic back pain, and at most six cans of beer during the rest of the day. At about 10:00 p.m., the effects were only “a very light buzz”.
 Mr. Berry testified that after he entered T.P.’s bedroom and turned on the main light, he sat on her bed and asked her about the counselling. She was angry with him and was unwilling to answer, so he asked her several times. He testified that after about five minutes he told her that he was going to go downstairs to get a beer. He returned after instead having a drink of water.
 Mr. Berry testified that when he returned the bedroom door was closed -- he was unsure whether he was the one who had closed it when he left the room -- and there was a bit of resistance when he tried to open it. However, the door opened with only a little pressure, and it was only when he entered and saw T.P. inside walking away from the door that he realized that she had been blocking the door on the other side. He denied kicking the door, and testified that he applied very little force to open it in his single and successful effort.
 Mr. Berry testified that when he entered T.P.’s room, this second time, she became violent. She put her hands on him, in the area of his sternum, and pushed him backwards around the bedroom. She spoke angrily, but in his evidence Mr. Berry was unable to remember what she said.
 Mr. Berry testified that when T.P. repeated this conduct, he removed her hands from his chest by grabbing her wrists or lower forearms.
 When T.P. repeated the pushing a further time, he did the same again, and also picked her up by her upper arms and placed her seated on the near side of her bed.
 He then left the room and went downstairs, where T.P. joined him about two minutes later. She was calmer by this time, and they spoke in the living room and had a cigarette together on the deck, before Mr. Berry went downstairs to the rec room about 20 or 30 minutes later to watch more TV and then to sleep.
 Mr. Berry was awoken when the police arrived to arrest him shortly before 9:00 a.m. on September 24, 2010.
 One main difficulty with Mr. Berry’s account of the events is that certain actions he acknowledges he took were not consistent with the state of mind he claims to have had at the time.
 Mr. Berry professed not to be seriously angry or intoxicated in his exchange with T.P., but features of his evidence indicate that he was certainly the former and was likely the latter as well.
 For example, in his narrative of the events Mr. Berry made specific mention of turning on the main light in T.P.’s room as he entered. Whether or not T.P. was awake as Mr. Berry testified he thought she was when he entered, to have turned on the main light in the room was an aggressive act, given the time of night and that, as both parties agreed, the relationship had ended and the bedroom was T.P.’s alone.
 Also, the terms Mr. Berry used in his evidence to describe his inquiries about T.P.’s counselling suggested that he had a demanding or aggressive attitude. For example, Mr. Berry testified that three different times he asked T.P. “to provide me with an answer”, and that he was “still seeking an answer” (when he returned the second time). Mr. Berry’s inquiry, as he described it, was clearly motivated not by concern for T.P. but rather by his own emotional reaction to the news that she was in counselling of which he was not aware.
 I find also that Mr. Berry pushed his way back into the room, after he left saying that he was going to get a beer, knowing that T.P. did not want him there. Mr. Berry tried to give the impression in his evidence that when he returned to T.P.’s room to continue his inquiries, the resistance he felt when he tried to open the door was almost negligible, attributable to something like clothing in the way. However, he also testified that it took “just a few seconds” to gain entry. Even “a few seconds” is an unusually long time to open a door and enter a room, and in my assessment Mr. Berry was well alerted to the fact or likelihood that T.P. was trying to keep him out of the room, despite his evidence that he was not. Furthermore, Mr. Berry acknowledged that once inside the room he realized from T.P.’s position near the door that she had been the obstruction.
 Nothing in Mr. Berry’s account of the events or his motivations or concerns explained why it was necessary or reasonable to inflict on T.P. a late-night discussion about her counselling immediately after Mr. Berry found the handwritten notes. I find that Mr. Berry was for some reason angered by the notes, and was determined that T.P. explain them whether she wished to or not.
 The second main difficulty with Mr. Berry’s explanation of the events is that if T.P. was as physically aggressive toward him as Mr. Berry testified, he could easily have left her bedroom at any time. Indeed, Mr. Berry acknowledged that T.P. clearly wanted him to do so. However, Mr. Berry also acknowledged that he made no real effort to leave the room until after he had placed T.P. on the bed, explaining that this was because he hoped T.P. would calm down and speak to him rationally.
 Mr. Berry tried to suggest that it was necessary for him to place T.P. on the bed in order to prevent further physical contact from her, and to allow him a clear path to the door, but this was plainly not the case. The photographs and the undisputed evidence about the layout and dimensions of the room make clear that Mr. Berry had ample space to withdraw from the room at any point during the course of the events, had he been minded to do so.
 For these reasons, I am unable to accept Mr. Berry’s evidence that he was not angry and aggressive when he entered T.P.’s bedroom on each of the two occasions and questioned her about the counselling notes. Nor can I accept his evidence that she was violent toward him and that he had to place her on her bed either to calm her down or to allow him to leave her room.
 Mr. Berry submits that T.P.’s own evidence is not sufficiently credible or reliable to support a conclusion beyond a reasonable doubt that he applied force to her in the manner she described. I do not agree for the following reasons.
 I found T.P. to be an impressive and convincing witness. Her evidence was internally consistent and was supported by other evidence.
 Mr. Berry submits that T.P.’s evidence was inconsistent with her report to the police shortly after the events, in which she made no mention of Mr. Berry slurring his speech as she described in her evidence in the trial. However, I accept T.P.’s explanation that in her report she simply described Mr. Berry as intoxicated, and gave no further detail because she was not asked for it.
 It is true that the photographs which Constable England took when T.P. reported her allegations late on September 23 (or early September 24) show very little bruising, despite T.P.’s evidence that the assault bruised her in the areas photographed. However, Constable England explained that the photographs are of poor quality, and that they do not depict very well the bruising that she herself saw at the time she took them. More specifically, Constable England testified that she saw bruising on T.P.’s chest and both upper arms, and a scratch on her chest.
 I take account of the fact that the door to T.P.’s bedroom was not damaged, despite the forceful kicking T.P. described. However, there is no clear evidence about the construction of the door to indicate that damage would have been likely with the force T.P. described. Viewed in conjunction with the other evidence in the trial, the absence of damage to the door does not of itself raise a reasonable doubt about T.P.’s version of the events.
 I find no inherent implausibility in T.P.’s version of the events or her description of her attitude toward Mr. Berry since their break-up. T.P. gave convincing explanations for why she did not immediately flee the house or telephone for help, and why she remained in the living area with Mr. Berry until he went to the basement and fell asleep.
 In my view, T.P.’s evidence provides solid proof of the assault, and no other evidence, including Mr. Berry’s account of the events, raises a reasonable doubt that the assault took place.
 I find Mr. Berry guilty of the assault charged in Count 2.
 The video-recordings which provide the main evidence of these offences were found on Mr. Berry’s JVC camcorder and his Acer computer after his arrest on the charge of assaulting T.P. My reasons (2013 BCSC 307) after the voir dire concerning the admission of this and other evidence outline the circumstances in which the video-recordings were found and seized by the police.
 The camcorder and the computer each contained four videos showing Mr. Berry sexually touching and digitally penetrating T.P.’s vagina and anus without her consent while she was either soundly asleep or unconscious in the bed that at the time she shared with Mr. Berry.
 This conduct takes place over the course of most, though not all, of the four video-recordings, which range in length from just over two minutes (one video) to between 20 and 25 minutes each (two videos), the remaining video being 8 ¼ minutes in length.
 Mr. Berry acknowledges that he operated the camera and made the video-recordings which show the sexual assaults described above, and that he did so without T.P.’s consent, and without her knowledge until she found the video-recordings after Mr. Berry was arrested for assaulting her. These video-recordings also provide evidence of voyeurism, as charged in Counts 3 and 4.
 For most, though not all, of their duration, the video-recordings show T.P.’s naked body with particular emphasis on her sexual organs, and often with Mr. Berry fondling, probing, or manipulating those organs and her anal region to expose them more fully. In substantial portions of the video-recordings, the camera zooms in to show extreme close-up views.
 Additional video-recordings which Mr. Berry acknowledges he filmed and kept without T.P.’s consent or knowledge provide further evidence of voyeurism with T.P. as victim.
 One such video-recording shows T.P. engaging in consensual sexual activity with Mr. Berry in the bed in the master bedroom they shared. That video-recording, which is about 40 minutes long, shows a naked Mr. Berry appearing to wake T.P. up and to engage her in numerous sexual acts of a most intimate nature.
 Three other video-recordings show T.P. taking a shower. The shower stall is transparent, and T.P.’s naked body is shown during most of the course of those video-recordings, which range in length from a mere second to one minute and thirty-five seconds.
 The evidence supporting Count 5 consists of video-recorded footage of R.A. using the toilet more than once in the bathroom of Mr. Berry’s sister’s home during a family birthday party on September 18, 2010. Mr. Berry acknowledges that he filmed the footage without R.A.’s consent or knowledge. In the footage, the camera is focussed on the area where a person’s genitals are likely to come into view, as did R.A.’s when she used the toilet, and Mr. Berry can be heard making lewd and other comments.
 As discussed earlier, I find Mr. Berry guilty on the disputed charge of assault (Count 2).
 After my ruling on the voir dire¸ Mr. Berry indicated that he does not oppose findings of guilt on the charges of sexual assault (Count 1), and voyeurism (Counts 3, 4, and 5).
 Counsel agree that the principle in R. v. Kienapple,  1 S.C.R. 729, applies to the charges in Counts 3 and 4, and that the court should direct a conditional stay of proceedings on Count 3.
 Accordingly, I find Mr. Berry guilty of all five offences charged. I direct that a conditional stay of proceedings be entered on Count 3 (voyeurism in relation to T.P. contrary to s. 162(1)(a)), and that convictions be entered in relation to the following offences:
Count 1 - sexual assault of T.P. contrary to s. 271 of the Code
Count 2 - assault of T.P. contrary to s. 266 of the Code
Count 4 - voyeurism in relation to T.P. contrary to s. 162(1)(b) of the Code
Count 5 - voyeurism in relation to R.A. contrary to s. 162(1)(a) of the Code.
“H. Holmes, J.”
The Honourable Madam Justice H. Holmes