B.C. judge’s characterization of man accused of raping teen as ‘person of bad moral fibre’ was a legal error: Appeal Court

The B.C. Court of Appeal and B.C. Supreme Court is pictured in Vancouver on Tuesday, May 25, 2021.

Warning: The following story contains disturbing details.

A judge who found a B.C. man guilty of sexually assaulting a 16-year-old girl made a legal error by characterizing the accused as “a person of bad moral fibre” and “a misogynistic braggart,” according to a decision by the province’s highest court overturning the conviction.

Prakash Lekhraj was found guilty of one count of sexual assault and one count creation of child pornography in 2024 and sentenced to three years and three months in prison.

Related: B.C. man who ‘bragged’ about sexually assaulting teen girl sentenced

The B.C. Court of Appeal overturned the convictions and ordered a new trial last week.

At trial, the court heard the complainant, who was 16 at the time, was waiting for a bus in downtown Vancouver after drinking at the beach with friends. Lekhraj, who was 52, offered her a ride to her home in Richmond but the pair ended up at his apartment in Burnaby.

Neither the fact that sexual activity occurred nor the fact that Lekhraj took a photo of the teen with her breast exposed was in dispute.

The central issue on the sexual assault charge was whether the teen consented. Whether Lekhraj knew or ought to have known the complainant’s age was the key consideration on the child pornography charge, the decision explained.

The complainant told the court she informed Lekhraj she was in high school, that she did not consent to any sexual activity, and that she was raped and sexually assaulted despite saying no repeatedly.

Lekhraj testified that the teen followed him into his bedroom, wearing only her underwear.

“The complainant initiated the sexual activity and was an enthusiastic participant,” he told the court at trial.

After driving the complainant home, while parked outside her house, Lekhraj sent messages and photos to his friends in a group chat.

One message submitted as evidence said she “took it like a champ,” while another described the complainant as “down for anything.”

Lekhraj was arrested while parked outside the complainant’s home, after her father called the police.

‘Impermissible’ reasoning for conviction

The Appeal Court described the case as one of “he said/she said,” adding that a case that hinges on whether there was consent to sexual activity “requires the judge to assess closely the credibility of the appellant and the complainant.”

The trial judge, in her reasons for conviction, said Lekhraj did not have a “scintilla of credibility” and added “if he told me it was raining outside, I would have to look,” according to the appeal decision.

However, the high court found the trial judge engaged in “impermissible propensity reasoning,” which the decision described as “reasoning that the accused is the type of person likely to have committed the offence charged because they have engaged in other discreditable conduct.”

In coming to this conclusion, the Appeal Court highlighted several paragraphs from the reasons for conviction, including one where the trial judge called Lekhraj’s messages to his friends “beyond offensive” and another where she said of his testimony “he convicted himself through his own words, bragging that he has done this countless times.”

On appeal, Crown counsel argued the judge’s convictions should stand based on Lekhraj’s response to an answer he gave on the issue of consent while under cross-examination.

“In response to the suggestion that he did not ask the complainant if she wanted the sexual acts to occur, the appellant said: ‘I never, and I’ve never done that before, I never will do that. It’s my right … when I’m having sex with somebody, is that something I have to talk about?’” the appeal decision said, quoting Lekhraj.

Crown argued this was enough to make it “impossible for his evidence to raise a reasonable doubt” because the law on consent requires it to be explicitly sought and affirmed.

While the Appeal Court found there was a “path to conviction” at trial, the three-judge panel found the trial judge’s assessment of Lekhraj’s credibility was fundamentally flawed, and the legal error was significant enough to grant the appeal, overturn the convictions, and order a new trial.

“(The judge’s) remarks go beyond deciding whether the appellant committed the offences charged. They engage with the appellant’s character and his conduct more generally, including his conduct towards other women, which does not form part of the alleged offences,” the decision said.

“In the end, the judge appears to have disbelieved the appellant, at least in part, based on his character and discreditable conduct unrelated to the offences charged.”