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Crown stays charges against Botting's client after new trial ordered

published November 14, 2016

The Crown has stayed the charges against criminal appellate lawyer Gary Botting's client after a British Columbia court quashed a sexual assault conviction and ordered a new trial for the immigrant from India.

“This case is the result of the system failing to apply common sense to situations where there has been a miscommunication owing to a clash of cultures,” Botting tells AdvocateDaily. “It’s straight out of the fourth episode of Gulliver’s Travels, where Gulliver meets the Yahoos,” adds the former professor of English literature turned lawyer.

Best known for fighting dangerous offender applications and extradition requests, Botting occasionally takes on other criminal cases with an international component.

Botting’s client, in his 60s and the father of a medical doctor, is a former engineer and officer in the Indian Air Force. He, like Gulliver, traveled half way around the world to join his son as an immigrant to Canada. He was charged with sexual assault after an incident at the University of British Columbia, where, six months after his arrival, he worked as a security guard.

The appellant started his shift at 10 p.m. At midnight, he heard suspicious noises emanating from a 50-metre crane that was situated on a construction site on campus. Not sure what to expect, he tried to get the attention of the trespassers and scare them off by banging on the steel girding of the crane with a wrench before retreating into the basement area of the construction site.

Once the trespassers began to descend the crane, the guard stood back and watched as two individuals climbed down it. But instead of stopping on the ground floor, they kept on climbing down into the basement, which was illuminated.

“Only then did the guard realize it was a young couple,” Botting says.

“The two individuals were U.B.C. students, a man and a woman, both athletic and former members of their high school track teams, who had trespassed onto the construction site and climbed the crane after spending the day on nearby Wreck Beach."

The woman admitted to the court that this was not the first time she had climbed the crane.

The male trespasser testified that they climbed the crane at 10 p.m., around the time the guard came on duty. The woman claimed they had only been up on the platform for a few minutes before climbing back down out of the wind.

The guard said he would have noticed if they had climbed the crane during his watch.

Once the young woman reached the dug-out basement of the construction site, she approached the security guard, apologized for trespassing, and tried to make light of the situation.

“My client asked her, in his broken English, if she’d had fun. When she said that, yes, she’d had fun, my client said it was time for him to have his fun and threatened to call the police," Botting says.

The guard's attempted joke fell flat. The couple both begged him not to call the police, and he agreed that he wouldn’t, but told them to leave, gesturing to the staircase off in the darkness, Botting says.

“Unfortunately, he speaks English with a heavy accent, and they did not understand him,” he says.

The guard then gestured for them to move towards the staircase, in the process touching the woman’s shoulder to direct her to the exit, and signalling for the man to follow.

“That familiar gesture, palm down, means, ‘follow’ in India, but ‘shoo’ in Canada,” says Botting, who spent some time in India in his youth.

“Once the woman saw the staircase, she pushed the security guard aside and ran up the stairs, followed by her partner. They hopped the security fence and ran away,” he says.

The complainant waited for two days before, upon the encouragement of fellow students to whom she had described the encounter, she phoned the security company and then the police, claiming that she had been sexually assaulted.

“Her story became more and more elaborate,” Botting says. “In court, she claimed that the guard was in uniform marked ‘Security’ and that he had an erection and pressed it against her — something her partner did not claim to have seen,” he says.

“Under cross-examination, the woman testified she may have been mistaken about the erection, and it may have just been his fly. But in the meantime, her partner claimed the guard was wearing a grey track suit with no fly.

“In her statement to the police she did not mention an erection, but when the man subsequently told her that he had told the police a different story, she allegedly altered her account to suit."

The security guard was convicted, “even though the testimony of the prosecution witnesses was contradictory,” Botting says, noting it was a serious misapplication of the classic case R. v. W.(D.).

He says his client stood to be deported back to India because he was a permanent resident of Canada and not a citizen.

Initially, a Supreme Court judge refused Botting’s application for an extension of time to appeal, brought shortly after Botting took over the file. That decision was successfully appealed to the B.C. Court of Appeal, which allowed the appeal, granted the extension, and referred the matter back to the Supreme Court.

Botting also appealed the order for a new trial on the grounds that his client had already served his sentence. “To try him again would be a breach of his section 11(h) Charter right not be tried again once he has been punished the first time,” Botting argued.

The Crown seemed to agree, and stayed the charges.

Botting says the case involving his client not only highlights a clash of cultures, it also points to how “the rape culture hysteria” on university campuses can sometimes be overblown, resulting in a backlash.

“False allegations such as this do nobody a favour,” he said.