R. v. Byford, 2016 ONSC 797

CITATION: R. v. Byford, 2016 ONSC 797

COURT FILE NO.: 13-SA5030

DATE: 2016/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

BEAU BYFORD

Respondent

Matthew Geigen-Miller, for the Crown

Michael Spratt, for the Respondent

HEARD AT OTTAWA: December 7 – 11, 14 – 16, and 18, 2015.

REASONS FOR JUDGMENT

MADAM JUSTICE B. R. WARKENTIN

1The accused, Beau Byford was charged with one count of sexual assault and one count of forcible confinement. The allegations stem from an incident that is alleged to have occurred after the Good Friday Church service at the Dominion Outreach Centre Church on Friday, March 29, 2013.

General Description of Events

2Both Mr. Byford and the complainant (there is a publication ban with respect to the identity of the complainant that remains in force) attended the Good Friday service. Until that day, they were strangers to each other.

3Prior to Good Friday, 2013, the complainant had been an infrequent participant in the Dominion Outreach Centre Church community and was known to some members, including the pastor and certain counsellors. For Mr. Byford, it was his first time attending this Church.

4The Dominion Outreach Centre is now known as the Kingdom Culture Church, and is an evangelical, Pentecostal Church that has a faith healing ministry. In 2013 it was located in commercial space in a building at 2016 Ogilvie Road in Ottawa that contained large box-type stores such as Giant Tiger, Staples and a Beer Store.

5The Good Friday Service in 2013 had been greatly anticipated by many; both in and out of the Church membership because of the guest speaker, a well-known evangelical minister by the name of Bill Prankard. Bill Prankard is known in the evangelical Christian community as a pastor with an international healing and evangelism ministry.

6The Dominion Outreach Centre anticipated a full house on Good Friday of 2013 and in addition to the guest speaker, had live music and other activities planned for that service. Church security was tightened because there was a concern that this type of ministry often attracted individuals who, intentionally or unintentionally, posed a security risk, particularly to the guest speaker.

7The evidence at trial indicated that both the complainant and Mr. Byford were eagerly anticipating this special service. The complainant testified she was looking forward to the service because it was at the Dominion Outreach Centre where she had been healed from an illness that saw her confined to a wheelchair. After approximately 10 years in a wheel chair, she had been healed at a Church service and was now able to walk.

8Mr. Byford had not been to the Dominion Outreach Centre before, but he had an interest in faith healing, in fact, he considered himself to be gifted with the ability to heal others. He too was anticipating this service particularly because he had met Bill Prankard many years earlier and hoped to be able to speak with him before or after the service.

9When Mr. Byford arrived, he spoke with some of the staff at the Church’s resource table claiming he was a pastor. This was brought to the attention of a member of the Church’s steering committee, Mr. Aubry who was also in charge of Church security. Mr. Aubry testified that after questioning Mr. Byford, he was not convinced he was a pastor but invited him to the service and escorted him to a seat near the rear of the sanctuary, away from the stage where Bill Prankard would be speaking.

10The complainant arrived shortly prior to the commencement of the service, when the sanctuary was close to full. The complainant and Mr. Byford were seated next to one another.

11At some point while sitting together, Mr. Byford and the complainant engaged in a discussion and she apparently told him about having been healed.

12Mr. Aubry testified that at the end of the service, Bill Prankard invited congregants to come to the front of the Church for prayer and healing. Mr. Aubry observed Mr. Byford come forward and that Bill Prankard prayed with him.

13Mr. Aubry was watching Mr. Byford carefully to ensure there was no inappropriate interaction between him and Bill Prankard. He observed that Mr. Byford appeared agitated. Mr. Aubry went to speak with Mr. Byford as a precaution. It was then that he noticed that Mr. Byford was with a woman whom he now understands to be the complainant, but not someone he had met previously. Mr. Byford told Mr. Aubry that he had prayed over the complainant and had healed her.

14Mr. Aubry rebuked Mr. Byford for doing that because he did not have spiritual authority to minister inside the Church. All those who wish to minister to people in the Church must first be sanctioned by the Church and undergo background and police checks. Mr. Aubry then spoke with the complainant telling her that Mr. Byford was not sanctioned by the Church to pray with her. His recollection was that they complied with his direction and walked away.

15Mr. Aubry then returned to Bill Prankard to escort him out of the sanctuary to the Church’s Green Room, a room designated for the ministry staff, particularly visiting ministers. While he was escorting Bill Prankard to the Green Room there was an altercation with Mr. Byford who insisted on a private interview with Mr. Prankard.

16Once Mr. Aubry had Bill Prankard settled in the Green Room, he returned to the Church hall and spoke with Mr. Byford. While Mr. Byford was initially upset that he was not able to meet with Mr. Prankard, he calmed down once Mr. Aubry explained that there was a process for this type of interview and it was not part of the Church service.

17A short time later, as he was driving away, Mr. Aubry observed Mr. Byford and the complainant walking out of the Church together.

18The minister of the Church, Shaun Gabie, was also aware of the incident with Mr. Byford but not directly involved. It was his evidence that it is not unusual for individuals to try to enter the Green Room after services and that is one of the reasons they have security, so he did not think anything of the events that morning.

19Mr. Gabie was familiar with the complainant. He knew that she had started attending the Church some time prior to March 2013 and that when she first attended she was confined to a wheelchair. It was his recollection that they kept her wheelchair in the back of the Church for a few weeks after the complainant had been healed, but was not personally familiar with her or her story, except that she was a congregant. At that time there were approximately 300 members and he was not familiar with them all.

20Mr. Gabie also observed the complainant and Mr. Byford walking out of the Church together as he was leaving. He saw them walking together and assumed they were friends.

Evidence of the Complainant

21The complainant testified over a period of five days. She had a great deal of difficulty testifying, needing numerous breaks and struggled to respond to questions, notwithstanding she was permitted to testify by video link from the child friendly room. She was able to give her evidence when asked to do so in chronological order, but laboured when asked to respond to specific questions about particulars of the incidents she alleged.

22While there were no particulars provided by the complainant about her medical history, it was apparent by her demeanor and the way she responded to questions that she had certain vulnerabilities. She was unwilling to testify about her medical conditions except that it was the result of an electrocution that had caused her to be confined to a wheelchair prior to being healed.

23The complainant confirmed that she first met Mr. Byford during the Church service because they were seated together. She shared her story of healing with Mr. Byford, who told her he was a pastor. She also confirmed that Mr. Byford had prayed for her during the service but that she became uncomfortable with him when at one point during the service he grabbed and squeezed her hand so hard she could not free herself.

24It was her evidence that Mr. Byford later followed her out of the Church and began walking with her as she walked home. She claimed that she was uncomfortable about this and thought about going into Giant Tiger or Staples that shared the commercial building where the Church was located, in order to avoid having to walk with Mr. Byford. Unfortunately, being Good Friday, none of the stores were open.

25The complainant claimed that Mr. Byford was walking around her so that she lost track of him at times. She confirmed however that she walked her usual route, turning left out of the front doors of the Church, down the sidewalk in front of Staples and Giant Tiger, then at the corner of the building turned left again onto a path that led to the parking lot and the Beer Store loading bays.

26The complainant alleged that it was when they reached the end of the pathway that the attack by Mr. Byford began. She described the attack as follows:

a. Mr. Byford grabbed her around the neck and pulled her arm up and twisted it behind her back.

b. He then released her and grabbed her necklace and began to choke her - first pulling the necklace to the right and then to the left and eventually straight up, causing her to have difficulty breathing. After this he tried to rip her coat open, while she was trying to hold it closed.

c. Mr. Byford then began pulling at her pants and put his hand down first the front of her pants and touched her genital area and then moved behind her and did the same thing around the back of her pants, touching her buttocks area. She said that he had a long black object in his hand when he reached into the back of her pants. She was not sure where that object had come from.

d. Mr. Byford attempted to penetrate her vaginally and anally with his fingers and that he squeezed her buttocks so hard she felt his finger nails dig into her skin.

27The complainant claimed that she was telling Mr. Byford to stop and that he seemed very angry, but she could not understand why he was taking his anger out on her. She recalled yelling at him and telling him she was not going to have sex with him.

28The complainant observed people walking by while this was happening and she hoped that one of them would contact the police.

29After this initial series of assaults, the complainant testified that she and Mr. Byford ended up in an area that she identified in photos, as being near some stairways to loading bays of the Beer Store. The complainant recalled that she was pacing around counting the stairs and trying to talk her way out of any other interaction with Mr. Byford and that Mr. Byford was blocking her way. During this period she and Mr. Byford each smoked a cigarette.

30The complainant alleged that after they had finished their cigarettes, Mr. Byford grabbed her again, forced her to her knees and she ended up sitting on one of the staircases. Mr. Byford then asked her if she minded if he smoked something else and showed her a pouch that contained something white. He then rolled a cigarette that she understood was marijuana and might have been mixed with something else.

31She claimed that Mr. Byford then pushed her back onto the stairs and said he was going to heal her and he grabbed her breast and squeezed so hard he left a bruise. While he was allegedly grabbing her, Mr. Byford told her that people like her always caused him problems.

32She claimed he then asked her to brush off his pants where he had been sitting and she recalls that she was walking away and he had left. She could not remember how she got home, but believes that she walked.

33Two days later, on Easter Sunday, March 31, 2013, the complainant returned to the Church and spoke with one of the counsellors on staff and told them what had happened. She was very upset and while there, identified Mr. Byford who had also come to the Easter Sunday service.

Other Evidence

34The police were called and when they arrived Mr. Byford was arrested. While speaking with Constable Stephan Fournier, Mr. Byford made the following comments and gestures:

a. When told he was under investigative detention for a sexual assault, Mr. Byford stated: “I’m going to jail, I’m going to jail, I’m going to jail - she asked me to touch her.”

b. “She mentioned pain, pain inside of her.”

c. “I have the gift of healing.” Mr. Byford repeated this a number of times and also told Constable Fournier that this would be the last time he would use his powers because it got him into trouble.

d. He also told Constable Fournier that he had been involved in a motor vehicle collision and suffered a head injury. That he had seen angels and that he could not die, but that he could heal.

e. Mr. Byford also told Constable Fournier that he had been rubbing on the complainant’s stomach and was demonstrating with his hands, which were cuffed behind his back. Mr. Byford was demonstrating by showing where he was touching the complainant and his hands went to his side, closer to the groin area and he told Constable Fournier that he may have lost track of his hands. He told Constable Fournier that the complainant had given him permission to touch her and that there was nothing sexual, it was only healing.

f. The reason he returned to Church on Easter Sunday was to see the complainant and to find out if she had liked it.

Mr. Byford’s Evidence

35Mr. Byford testified. He denied the allegations and stated that he had only wanted to speak with the complainant about healing and he wanted to heal her because she had confided in him that she was in pain.

36Mr. Byford also spoke about his cognitive issues as a result of a brain injury he had sustained in a motorcycle accident when he was 20 years old. He is currently 41. He spent approximately two years in the hospital recovering from the accident and continues to see a psychiatrist and a neurologist.

37Mr. Byford had met Bill Prankard about 15 years previously and was excited about hearing him speak on Good Friday at the Dominion Outreach Centre.

38While at the service, he met the complainant who sat next to him. While sitting next to each other they spoke about their respective experiences with healing. Mr. Byford testified that the complainant told him she was in Church because she wanted to be healed. Mr. Byford explained that the complainant told him of her history, but he was not listening to her because he was focused on the service. He recalled that she said she was sick, in need of help because she had pain all over her body.

39Mr. Byford said he described himself as a pastor to the complainant. He denied that he grabbed her hand during the service, but that instead, during a prayer, he was sitting with his hand, palm up and her hand came into contact with his. He indicated they simply prayed together at that point.

40He admitted to wanting to speak directly with Bill Prankard after the service. He agreed that Mr. Aubry’s evidence accurately represented his actions and demeanour inside the Church. When he left the service, the complainant was in the foyer and she walked out with him. He claimed that she told him she wanted to speak to him some more and they had a very calm and very understanding conversation for about 30 or 40 minutes.

41Mr. Byford also explained that as they neared the staircase by the Beer Store loading bay, the complainant asked him to heal her and so he laid his hand on top of her jacket, over her belly and he said a prayer, backed away and that was the extent of the touching.

42After this, the complainant sat on the stairs and began telling him the story of her life. He had first a cigarette and then rolled a joint. He testified that he is prescribed medical marijuana and another medication to control seizures. Mr Byford claimed that it had been his intention when leaving the Church to find a private spot to smoke a joint.

43Mr. Byford denied having touched the complainant sexually in any fashion or that he grabbed her around her neck or twisted her arm behind her back. He claimed that together they had a good conversation and that when they parted the complainant was happy. He then returned to the Church to speak with the pastors.

44When he arrived back at the Church everyone had left, so he returned on Sunday. He wanted to see how the complainant was doing because he wanted to develop a reputation in the Church as a healer. He also wanted to apologize to Mr. Aubry for his conduct on Good Friday, which he did.

45Mr. Byford testified that when he was detained by the police he panicked. He was very afraid and intimidated. At first he believed it was because of the marijuana and then when told it was a sexual assault, his first thought was that it had to do with his interactions with the complainant because she was the only woman he had been around at the Church.

46Mr. Byford categorically denied that he had touched the complainant in a sexual manner.

Analysis and Conclusion

47The resolution of this case depends primarily on the credibility of the complainant and Mr. Byford. However, a determination of guilt or an acquittal must not devolve into a mere credibility contest between two witnesses in a trial. In assessing the evidence, I must do so in a global fashion, assessing the evidence as it develops and as a whole.

48The Court may believe all, none or some of a witness' evidence.

49In assessing the evidence in this case, I have reviewed the legal principles in the Supreme Court of Canada’s decision of R. v. W.(D.)¹ which sets out the test for determining credibility at paragraph 28 as follows:

“First, if you believe the evidence of the accused, you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

50On cross examination, the complainant was confronted with a number of inconsistencies in her testimony that differed from her evidence given to the police and at the preliminary inquiry. For example, at the preliminary hearing she testified that Mr. Byford’s hand had slipped onto hers during the service whereas at trial she testified that he had grabbed her hand and held it so tight she could not get away.

51Also at the preliminary inquiry, the complainant testified that she could not recall what she told Mr. Byford in the Church, but she did recall saying to him “Do you want to heal me?” At trial, she denied she had asked him that.

52There was video evidence from two exterior cameras on Giant Tiger that showed the complainant and Mr. Byford walking together along the sidewalk in the front of the building. Mr. Byford was walking alone at first and then paused while the complainant caught up to him. This contradicted the complainant’s evidence that Mr. Byford followed her out of the Church. The video also showed that the complainant was wearing a long coat that was zipped up.

53The video footage showed Mr. Byford returning alone along the front of the building approximately 50 minutes later.

54The cameras also recorded a number of other people walking in that same area during this period of time. In total, there were at least 6 individuals including a couple with a dog, one bicycle and 14 cars that were captured by these cameras. The 6 individuals and the cyclist all turned the same corner that Mr. Byford and the complainant had taken.

55There was also a camera on the exterior of the Beer Store that had been viewed by the police, however the information from Good Friday on that camera was deleted before it could be copied for the investigation. Sergeant Jeff Webster testified that he had viewed the camera footage and that it was of poor quality and did not show the area near the loading docks but that it showed a number of individuals walking down the side of the building where the assault is alleged to have occurred during the 50 minute period.

56The complainant testified that the attack against her began with Mr. Byford grabbing her around the neck and twisting her arm around her back. She had never mentioned this aspect of the assault prior to trial, either at the preliminary hearing or to the police.

57At trial, the complainant reversed the order of how she alleged Mr. Byford put his hands into her clothing. It was at trial that the complainant first testified that Mr. Byford grabbed her buttocks so hard that his nails dug into her skin. When examined at the hospital three days later, there was no evidence of any bruising in her buttock area. There was a small bruise on her chest area.

58In the preliminary inquiry, the complainant admitted that she had given Mr. Byford a hug prior to parting from him. At trial she adamantly denied that she had ever hugged him.

59As already described, the complainant had significant difficulty testifying. She was unable or refused to answer many questions both in examination in chief and in cross examination. The complainant often became angry and hostile when the version of events she testified to at trial was contradicted by her prior statements or evidence.

60Because I am faced with contradictory versions of what happened in this case, if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.

61Having considered both parties’ evidence while Mr. Byford’s version of events leaves me with some concern, particularly his voluntary statements to the police upon his detention and arrest, his evidence was consistent. Even if I do not believe his version of the events, when viewed in light of some material inconsistencies in the complainant’s evidence, particularly her evidence at the preliminary inquiry where she testified that she had asked Mr. Byford to heal her and that she gave him a parting hug, events she categorically denied at trial, I am left in some reasonable doubt.

62Considered together with the other many inconsistencies in the complainant’s evidence, many of which I also find to be material, and the fact that none of the people who were walking or driving in the vicinity of where the alleged assault took place raised an alarm, also leaves me in a position where I am left with some doubt. If the attack had happened as described by the complainant, it is difficult to comprehend that all of the individuals walking or driving in that area would have ignored what was occurring.

63While there could have been an assault even if not fully as the complainant had described at trial, the time that she and Mr. Byford spent together, including a break in the alleged attack while they both smoked a cigarette and Mr. Byford rolled and smoked a joint, also leaves me with some reasonable doubt.

64Because I am left with this doubt, I am not satisfied that the very high onus on the Crown to prove these alleged offences beyond a reasonable doubt has been met.

65I therefore find Mr. Byford not guilty of the charge of sexual assault or unlawful confinement.

Footnotes

1. 11991 SCC 93, [1991] 1 S.C.R. 742