IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         F.M. is before the court today charged with sexually assaulting M.J. on or about December 9, 2017 at or near [omitted for publication].  The assault is alleged to have occurred during the aftermath of a social gathering at the home of M.J. and her then spouse, M.Q.  M.J. says she awoke from an alcohol induced stupor to find her pants and underwear pulled down to her knees.  M.Q. says he witnessed F.M. with his pants down sexually touching M.J. when she appeared to have just regained consciousness.

[2]         The sole issue before the court is whether the Crown has proven beyond a reasonable doubt that F.M. sexually assaulted M.J.

[3]         F.M. was charged by Information 9309-1-K on December 12, 2017 as follows:

[4]         On December 21, 2017, the Crown amended Information 9309-1-K by way of Information 9309-2-C, to read:

[5]         On October 9, 2018, the first day of trial, the Crown amended Count 1 of Information 9309-2-C to state:

[6]         Also on October 9, 2018, the Crown directed a stay of proceedings on Count 2 of Information 9309-2-C.  Crown Counsel stated it is apparent the Crown has no evidence to sustain a conviction on the charge of assault causing bodily harm.

[7]         This trial commenced on October 9, 2018, and continued on October 10 and 11, 2018.  The Crown called four witnesses in its case, Constable Matthew Wiksyk, M.J., M.Q., and J.H.  At the request of the Crown and Defence, the Court called B.P., an eye witness who had refused to provide the investigating officer with a recorded statement of his evidence in this matter.  B.P. was cross-examined by both counsels at trial.  The Crown also tendered into evidence a number of photographs taken by Constable Wiksyk on the evening of December 12, 2017 and B.P.’s criminal record.

[8]         All of the Crown’s civilian witnesses were intoxicated at the material time.  This has made it a challenge to reconstruct a cohesive narrative of events.  Nevertheless, I have attempted to create a chronology from piecing together the disparate evidence adduced at trial.

[9]         M.J. is 21 years old.  She is the mother of three children, P.J., who is eight years old, A.J.(1), who is two, and A.J.(2) who is one.

[10]      M.J. was in a common-law relationship with M.Q., who is 30 years old.  M.Q. is the biological father of A.J.(1) and A.J.(2).  M.J. and M.Q. had been in relationship since 2012.

[11]      At the time of trial, M.Q. was incarcerated.  When asked if she was still in a relationship with M.Q., M.J. said, “I really don’t know.”

[12]      On December 9, 2017, M.J. and M.Q. lived at [omitted for publication], near [omitted for publication], B.C, approximately seven kilometers from the [omitted for publication].  They had lived at this address for approximately three months on the offence date.  Prior to that they lived at M.Q.’s father’s home (P.Q.) on the [omitted for publication].

[13]      On December 9, 2017, M.J. and M.Q. went to the [omitted for publication] Christmas Dinner on the [omitted for publication].  There, M.J. and M.Q. received a $500 check from the [omitted for publication] as a form of “Christmas bonus.”

[14]      M.J. and M.Q. earmarked this money for a trip to Prince George to go Christmas shopping on December 10, 2017.  M.Q. and M.J. did not have their own vehicle; neither of them a driver’s licence.  M.Q.’s father had a driver’s licence and a vehicle, but it was uninsured.  M.Q. Sr. was going to drive his son and M.J. to Prince George in a [omitted for publication] M.J. had borrowed from her father.

[15]      The [omitted for publication] Christmas dinner finished at 3 or 4 p.m., after which M.Q. drove M.J. in the [omitted for publication] to the [omitted for publication].  M.Q. believes it was about 5:30 to 6 p.m. when they arrived at [omitted for publication].  M.Q. cashed the $500 Christmas cheque at the [omitted for publication] general store.  He paid off a tab M.J. and M.Q. had with the store.  They bought a 12 pack of beer, which M.J. says was Cariboo, and M.Q. ways was Budweiser.  They also bought some fireworks.

[16]      [Omitted for publication] is about a 20 minute drive from the Q/J residence at [omitted for publication].  M.J. and M.Q.’s route home took them through [omitted for publication].  At about 6:30 p.m., as they came to the [omitted for publication], M.Q. spotted the accused, F.M., sitting in his parked [omitted for publication].  M.Q. and F.M. had known each other for years.  They had often drank together.  At the time, M.Q. regarded F.M. as his best friend.

[17]      M.Q. stopped his vehicle beside F.M., they rolled down their windows and chatted for two or three minutes.  M.Q. told F.M. that he and M.J. had some fireworks.  They invited F.M. back to their home to watch the fireworks.

[18]      M.Q. and M.J.’s children were with the babysitter for the evening.

[19]      M.Q., M.J., and F.M. returned to [omitted for publication] between 6:45 p.m. and 7 p.m.  They drank the case of beer which M.Q. had purchased at [omitted for publication].  They also smoked some marijuana and set off the fireworks.  F.M. played the guitar; M.Q. and M.J. played the X-Box and danced.

[20]      After a few hours, the beer ran out.  M.Q. estimates this was between 9:30 p.m. and 10 p.m.  F.M. went to his vehicle and returned with a 26 ounce bottle of Smirnoff vodka, which was about ¾ full.

[21]      M.Q., M.J., and F.M. took shots of vodka.  As the evening wore on, M.J. became severely intoxicated and passed out on the three person living room sofa.  When she lost consciousness M.J. was sitting upright on the sofa beside M.Q.  She was fully dressed and leaned her head against M.Q. who was sitting to her left.  F.M. was sitting on a single kitchen chair near the window, three or four feet away from where M.J. was sitting.

[22]      The vodka ran out around 11:30 p.m., M.Q. and F.M. talked about going to [omitted for publication] to get more alcohol.  Before she passed out M.J. heard F.M. and M.Q. discussing meeting at [omitted for publication].  She did not know why.

[23]      About 20 to 30 minutes after M.J. lost consciousness, M.Q. and F.M. finished off the vodka and left for [omitted for publication].  M.Q. says F.M. wanted to go to [omitted for publication] to get some more alcohol and hook up with a chick.  M.Q. did not know any place in [omitted for publication] where they could buy liquor so late at night.  By this time, M.Q. was fairly intoxicated.

[24]      For reasons which were never made clear, M.Q. and F.M. decided to take separate vehicles.  I gather they left M.J. alone in the residence, sleeping on the living room sofa.  M.Q. got in the [omitted for publication] and F.M. got into his Dodge pickup.  M.Q. saw F.M. get in the pickup, but did not see him drive away.  M.Q. did not check his rear view mirror to see if F.M. was behind him on the way to [omitted for publication].

[25]      M.Q. drove to [omitted for publication] and waited at the [omitted for publication] for about 20 minutes, but F.M. never arrived.  M.Q. says he headed home and while driving past [omitted for publication] he came upon B.P.

[26]      B.P. and M.Q. are cousins.  B.P. has had difficulties with M.Q. in the past, so they had not been in each other’s company for some time.

[27]      On the evening of December 9, 2017, B.P. was visiting J.H. who lives on [omitted for publication], less than half a kilometre from the [omitted for publication].  B.P. and J.H. had been drinking from B.P.’s bottle of Silent Sam vodka.  B.P. said that M.Q. drove up to J.H.’s house and came inside.  B.P.’s bottle of Silent Sam was a little over half full.  J.H. was not interested in drinking that evening so B.P. and M.Q. finished off the Silent Sam.  J.H. testified that when he arrived at his home, M.Q. was extremely intoxicated.

[28]      M.Q. maintains he encountered B.P. standing outside on [omitted for publication].  He asked B.P. if he had any alcohol and B.P. said he did, at J.H.’s house.  M.Q. says he drove B.P. to J.H.’s house and B.P. went inside and returned with a bottle of vodka and some beer.  M.Q. denies going into J.H.’s house.

[29]      M.Q. invited B.P. back to his house to drink and watch movies, which B.P. accepted.  M.Q. says he invited him because B.P. had some alcohol and M.Q. wanted to drink more.

[30]      B.P. says M.Q. had a bag containing some beer and was looking for someone to drink with.  M.Q. said B.P. brought the Silent Sam vodka with him to [omitted for publication].  M.Q. believes they arrived back at his residence at around 12:00 a.m. or 12:30 a.m. on the morning of December 10, 2017.

[31]      When M.Q. and B.P. arrived at [omitted for publication], F.M.’s pickup was in the driveway.  M.Q. said when he saw the pickup he thought, “What the fuck?”  M.Q. parked in front of the living room window.  He could see the interior lights through the living room window but could not see anyone inside because only one of the two curtains was drawn.  All he could see from the outside was the television and coffee table.

[32]      M.Q. went into the residence and B.P. followed on his heels.  F.M. and M.J. were in the living room.  Where they were positioned and what they were doing is a highly contested issue.

[33]      M.Q. says when he walked through the door, he saw M.J. laying with her head on the lower right hand side of the sofa.  Her legs were in the air and her pants and panties down to her knees.  F.M. was on top of M.J.  He “hopped off” and “pulled out of her”.  M.Q. saw F.M.’s penis with 6 to 12 inches of M.J.’s bare bottom.  His pants were down and his “junk was hanging out”, meaning he could see F.M.’s penis.  F.M. pulled up his pants and sat down on the left hand side of the sofa beside M.J.  He looked scared.  M.J. looked like she just woke up and didn’t seem to know what was going on.

[34]      The left hand side of the sofa is on the right hand side of the photographs, and vice versa as the result of the angle from which the photographs were taken.  The actual left hand side of the sofa is distinguished in the photographs by a white napkin.

[35]      M.Q. flipped out and said, “What the fuck is going on?”  F.M. kept repeating, “She didn’t do anything, she didn’t do anything.”  M.Q. said, “Well what the fuck are you doing?”

[36]      M.Q. walked around the right hand side the sofa past M.J.  He grabbed F.M. by the throat intent on throwing him out of the house.  When F.M. resisted M.Q. began punching him in the head.  Within minutes, M.Q. forced F.M. out of the house.  While doing so, M.Q. told B.P. to go get a knife so he could cut off F.M.’s “balls.”  B.P. said he didn’t want to see anything and he didn’t want M.Q. to do anything.  M.Q. pushed F.M. out the door and let him go.  F.M. got in his vehicle and drove away.

[37]      M.Q. says at no time during his altercation with F.M. did they end up on the floor.

[38]      M.J. says when she woke up she was lying down diagonally on the sofa, facing the window.  Her head was on the sofa’s left hand arm rest, which is depicted on the right hand side of the photograph.  Her legs were spread apart, with one leaning against the back of the sofa and other hanging off the edge.  Her pants and underwear were down to her knees.  She saw a light outside the living room window.  M.Q. came storming through the door.  Shortly thereafter M.J. realized she was sitting in the living room exposed in front of three different men: M.Q., F.M. Jr., and B.P.

[39]      F.M. was sitting on the kitchen chair by the window, about three or four feet from M.J.  His pants and underwear were not down or even partially down.  She could not see his penis.  B.P. was standing near the front door entrance way.  M.Q. began hollering at and beating on F.M.  He punched F.M. in the face while F.M. was still sitting on the chair.  He then knocked F.M. down and started kicking him.  F.M. curled up in a ball on the floor.  B.P. tried to persuade him to leave F.M. alone.

[40]      M.Q. demanded to know from F.M. why “his woman was laying there like that”.  F.M. kept repeating, “I didn’t do anything, I didn’t do anything; she didn’t do anything; she didn’t do anything.”  M.Q. responded, “You’re lying, you’re lying, it’s bullshit, I don’t believe you.”  F.M. did not try and fight back, he just tried to convince M.Q. nothing happened.  M.Q. continued punching and kicking F.M. and threw him out the door, calling him a pervert.

[41]      M.J. does not know if F.M. pulled down her pants.  She had no memory of F.M. touching her.  She is fairly certain she would not have pulled down her own pants.  She never consented to any sexual activity with F.M.

[42]      B.P. entered the Q/J residence immediately behind M.Q.  The lights were on.  He observed M.J. sitting upright on the sofa by herself with her legs crossed talking to F.M.  She seemed alert and conscious and fully clothed.  B.P. could not say whether or not she was intoxicated.  There was a movie playing on the television, although he could not remember its name.  F.M. was sitting on a chair near the television and window, some distance from M.J.  He was fully clothed.  B.P. could see F.M. and M.J. talking, but he could not tell what they were talking about.

[43]      M.Q. started swearing at F.M. and M.J. for nothing.  He said, “What the hell are you guys doing here when I’m not here?”  He looked at M.J., and said, “Are you fucking around on me?”  M.J. responded, “What the hell, we are just sitting here, can’t you see?”

[44]      M.Q. flipped out and began punching F.M., who kept denying that he and M.J. were doing anything.  Somehow M.Q. and F.M. ended up on the floor.  As the fight progressed, B.P. stopped watching, and looked at the floor because he didn’t like violence.  He was still standing by the front door and had not yet removed his shoes.  M.J. remained sitting on the sofa watching M.Q., yelling at him to quit it.  At one point in the altercation, M.Q. asked B.P. what the hell he was doing just standing there and told him to go outside and get an axe.  B.P. looked at M.Q. and told him, “this isn’t my fight, I’m not doing nothing.  I got invited to come to a fight, no thank you.”

[45]      B.P. went outside.  He saw F.M. get into his truck and drive off.  B.P. remained outside.  He could hear M.J. inside the house yelling at M.Q., “Don’t! Stop it!”

[46]      After F.M. left in his pickup, M.Q. came outside.  He got into the [omitted for publication].  B.P. got into the passenger seat.  M.J. remained inside the residence.  M.Q. drove around the [omitted for publication].  Both he and B.P. were drinking.  M.Q. says they were drinking from B.P.’s bottle of Silent Sam; B.P. says they were drinking M.Q.’s beer that was left in the vehicle.

[47]      M.Q. says he drove to [omitted for publication] on the hunt for F.M.  He wanted to find F.M. and beat him up some more.  F.M. lived within a 10 to 15 minute drive from [omitted for publication].  Although he knew where F.M. lived, M.Q. he did not want to go to F.M.’s house.  He wanted to find F.M. outside his residence, but that did not happen.  M.Q. says he was worried if he went into F.M.’s house, he would be charged with breaking and entering.  Instead he drove around [omitted for publication] until about 5 a.m. looking to catch F.M. outside his home.

[48]      M.Q. says he then went home and told M.J. that he and B.P. were going to Prince George and then left.  M.Q. continued looking for F.M. because he “didn’t know where he had gone to.”  During this time, M.Q. consumed more alcohol.

[49]      B.P. said after he hopped into the vehicle, M.Q. started driving toward the bush.  B.P. became frightened and asked M.Q. to pull over.  M.Q. refused and kept drinking and driving.  B.P. “grabbed a couple of [M.Q.’s] beer and slammed them back” until he passed out in the passenger’s seat.

[50]      M.Q. says he left the [omitted for publication] at about 5:00 a.m. and headed for Prince George via the [omitted for publication] back road.  Around 7:30 or 8 a.m. he stopped at the [omitted for publication] gas bar just west of [omitted for publication] for gas.  By this time, B.P. had woken up.  B.P. says he still had a beer in his hands between his legs.  M.Q. stopped in [omitted for publication] and purchased more beer and some Twisted Tea at the liquor store when it opened at 9 a.m.

[51]      B.P. was upset to wake up and discover he was headed to Prince George.  M.Q. had never asked him if he wanted to go.  When they arrived in Prince George, B.P. sat in the car.  He was hungry and had no money.  He was worried M.Q. was going to leave him there and called his grandmother to let her know where he was.

[52]      While in Prince George, M.Q. went into the Pine Centre Mall.  He purchased a Christmas tree and some presents for the children.  He also purchased more alcohol.  While at the mall, M.Q. connected with some people from [omitted for publication], whom he agreed to drive back to their community.  They left Prince George at 4 p.m.  One of the [omitted for publication] contingents took over the driving, and M.Q. returned to drinking.  M.Q. purchased more alcohol in [omitted for publication].  They returned to the [omitted for publication] via the back road.  After dropping off the [omitted for publication] passengers, M.Q. took over driving until he was able to continue.  He pulled over and shut off the engine.  B.P. was worried about the car freezing.  He made M.Q. get into the passenger seat and took over driving.

[53]      When B.P. and M.Q. arrived back at [omitted for publication], M.J. was not present.  B.P. says he dropped off M.Q. and the vehicle and walked back to his grandmother’s home, which took about 20 minutes.  M.Q. says he drove home and B.P. spent the night at his house.

[54]      M.Q. did not see M.J. until December 11, 2017.  B.P. testified M.J. came to his house the morning of December 11, 2017, looking for her father’s car.  She was angry to learn M.Q. had taken it to Prince George.

[55]      M.Q. says on December 11, 2017, he and M.J. had a counselling session at about 2:30 p.m. at the [omitted for publication].  The counsellor asked them what happened and M.J. said she had been raped.  The counsellor told them to report it to the police.

[56]      In the early afternoon of December 11, 2017, M.J. and M.Q. attended the front counter of the [omitted for publication] RCMP detachment to report a sex assault.  They spoke to Constable Wiksyk, who is the investigating officer in this matter.

[57]      Constable Wiksyk accompanied M.J. and M.Q. to the [omitted for publication] Hospital to have M.J. undergo a sexual assault kit.  M.J. was at the hospital for approximately two hours (between 2:27 and 4:25 p.m.).  Constable Wiksyk was present during M.J.’s medical examination for the sexual assault kit.  When it was complete, he seized the samples and sent them away for analysis.

[58]      After the sexual assault examination was complete, Constable Wiksyk brought M.J. and M.Q. back to the detachment.  He conducted a video-recorded interview with M.J. and took an audio-recorded statement from M.Q.

[59]      At 8:25 p.m. on December 11, 2017, Constable Wiksyk went to M.J. and M.Q.’s residence on the [omitted for publication].  He was there for about 20 minutes.  Constable Wiksyk took the photographs which were entered as exhibits at trial; he seized the black yoga pants M.J. was wearing on the evening of December 9, 2017.  These were not entered into evidence at trial.  Constable Wiksyk did not seize M.J.’s underwear or take scrapings for forensic samples from the sofa.  Since the offence, the sofa had been washed as a result of the baby spilling milk on the left side seat cushion.

[60]      When Constable Wiksyk interviewed M.J. on December 11, 2018, she had visible injuries on the left side of her face.  He noted her eye was swollen shut and she had bruising on her cheek.

[61]      M.Q. claims that when he returned home on the evening of December 9/10, 2017, M.J.’s eye was “puffy”.  On December 11, 2017, he noticed M.J.’s injuries were much worse.  In addition to her injured eye, he could see M.J. had a “fat lip”; her cheek was swollen up and bruised.  M.Q. denied that he caused those injuries.

[62]      At trial, M.J. says that after M.Q. had thrown F.M. out of the house, she went and hid in the bathroom.  She could hear M.Q. kicking in every door.  He kicked in the bathroom door, breaking the lock.  The door hit M.J. and she fell down.  She tried to calm M.Q.  He accused her of wanting “this” to happen.  He said to M.J., “What do you think you are doing with him, huh” “You want to go be with him; go be with him.”  He threw her back down on the floor, punched her in the eye and kicked her in the jaw.  M.J. was on the floor crying.  M.Q. said, “I am going find him.  I am going to follow him down.”  He grabbed her father’s car keys and a bat, and said “I’m going to be right back.”  He slammed the door and left.  M.J. locked the doors, but M.Q. returned an hour later and let himself in with a house key.  M.J. was in bed, trying to hide, telling M.Q. to stay away.  He got whatever it was he wanted and left again.  M.J. never saw him again until December 11, 2017.

[63]      Section 271of the Code sets out the offence of sexual assault.  In R. v. Ewanchuk, 1999 CanLII 711 (SCC), the Supreme Court set out the five essential elements of the offence of sexual assault has follows:

[64]      A sexual assault can be any form of assault as that term is defined the s. 265 of the Criminal Code, which includes:

[65]      In my view, the act of pulling down the complainant’s pants and underwear alone would satisfy the definition of assault under s. 256(a) or (b)

[66]      For a sexual assault, the contact must be of a “sexual nature.”  In R. v. Chase, 1987 CanLII 23 (SCC), at para. 11, McIntyre J. held that sexual assault is “committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.”  The sexual nature of the contact is determined objectively, on the standard of the reasonable observer, and involves a consideration of the following factors:

[67]      I am satisfied that pulling down the complainant’s pants and underwear to expose her genitals is contact of a sexual nature.

[68]      Sexual assault requires an absence of consent, meaning “the voluntary agreement of the complainant to engage in the sexual activity in question”: s. 273.1 of the Criminal Code.  Consent for the purposes of s. 273.1 means the consent to the sexual activity in question.  The complainant must subjectively agree to the specific physical act, its sexual nature and the identity of the partner.

[69]      A sleeping or passed out person is unconscious and incapable of giving consent to any type of activity, sexual or otherwise.  Once a person is unconscious, any prior consent to sexual activity ceases.  Any continued sexual act perpetrated on the unaware person is a sexual assault.  An unconscious person cannot consent in advance to sexual touching.  Consent requires a conscious, operating mind, capable of granting, revoking, or withholding consent to each and every sexual act: R. v. J.A., 2011 SCC 28 (CanLII).

[70]      In summary, the law of consent to sexual activity embraces the following principles:

[71]      The preponderance of the evidence in this case shows beyond a reasonable doubt that M.J. did not consent to the sexual touching.  She says she woke up to find her pants and underpants were down to her knees.  I find that M.J. did not and could not consent to any person pulling down her pants and underpants while she was unconscious.

[72]      Even if the complainant did not subjectively consent to the sexual activity, the accused must have intended to touch the complainant, meaning it was not accidental or inadvertent.

[73]      It is impossible to see how anyone could accidently or inadvertently pull down M.J.’s clothing while she was unconscious.

[74]      The Crown must prove an accused intended to touch the complainant in a sexual manner and that he had knowledge or was reckless or wilfully blind about her lack of consent.  Whereas consent, as an integral element of the criminal act is considered from the perspective of the complainant, consent, as an integral element of the criminal intent, is considered from the perspective of the accused: Ewanchuk, para. 44.

[75]      The issue in this case is whether the Crown has proven beyond a reasonable doubt that it was F.M. who committed the wrongful act.

[76]      In order to determine liability, I must assess what evidence I find reliable and credible.  As Justice Cory commented in R. v. S. (R.D.), 1997 CanLII 324 (SCC), assessing the credibility of a witness is more of an ‘art than a science’.

[77]      Reliability and credibility are not the same.  Reliability involves the accuracy of the witness’s testimony.  It engages consideration of the witness’s ability to observe, recall and recount: R. v. H.C., 2009 ONCA 56 (CanLII), at para. 41.  Credibility, on the other hand, concerns the veracity of a witness.  Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes.

[78]      Assessing credibility engages a number of factors, including: (a) the plausibility of the witness’s evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent, (f) the witness’s demeanour while testifying.

[79]      It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is credible may nevertheless be unreliable: H.C. at para. 41 citing R. v. Morrissey, 1995 CanLII 3498 (ON CA).

[80]      In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord different weight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

[81]      The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crown to prove the essential elements of the offences charged beyond a reasonable doubt.  Although the standard is not absolute certainty, proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144.

[82]      In cases where there is little or no corroborating evidence, or as in this case, highly conflicting evidence, the Court can be left with irreconcilable versions of the same events.  A judge cannot reach a verdict by simply deciding which conflicting version of events he or she prefers.  A criminal trial is not a “credibility contest.”  It is a trial to determine whether the Crown has proved the accused’s guilt of the offence charged beyond a reasonable doubt.

[83]      Although F.M. did not testify, the Supreme Court of Canada case in R. v. W (D), 1991 CanLII 93 (SCC), is still apposite.  R. v. W(D) provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial.  It is intended to assist judges in properly applying the concept of reasonable doubt to issues of credibility.  Justice David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v. W(D) and Credibility Assessment, explains the W(D) test as follows:

[84]      In cases where the defence does not call evidence, any evidence inconsistent with guilt must necessarily arise from the Crown’s case.

[85]      On the evening of the offence, M.J. was as intoxicated as she has ever been in her life.  Her reliability is severely compromised by her inability to recall events while she was heavily intoxicated or unconscious.  She can, however, with reasonable reliability, recall the events that transpired before she became intoxicated and after she regained consciousness.

[86]      There is nothing implausible about M.J.’s version of events.  She says she passed out and woke up to find her pants and underwear pulled down to her knees.  M.J. did not allege that she had been penetrated or otherwise sexually touched.  She does not identify F.M. as the perpetrator.  She has no recollection of F.M. or anyone having pulled her pants down or touched her in any way.  She takes common sense view that she would not have pulled down her own clothing.  As no forensic evidence was adduced at trial, I conclude it was not helpful in resolving the matters before the court.

[87]      M.J.’s evidence her pants were pulled down is supported by M.Q. and contradicted by B.P.  M.Q. testified M.J.’s legs were in the air and her pants and panties were down to her knees.  B.P. says from what he could see, M.J.’s feet were on the floor, her legs crossed and her clothing intact.  All witnesses agree that M.Q. reacted explosively when he entered into the residence and saw F.M. and M.J. in the living room.

[88]      M.Q. attributes his violent outburst to observing F.M. on top of M.J. with his pants down and his penis either inside her or close to her bare bottom.  B.P. says that M.Q. is such a jealous man that he will not speak to M.J. in the community in M.Q.’s absence.  He attributes M.Q.’s violent reaction that evening to the mere fact F.M. was alone in the house with M.J.

[89]      Although this issue was not canvassed at trial, it is apparent to me that M.J. must have changed her evidence as to how she was injured.  Constable Wiksyk took a statement from M.J. on December 11, 2017, and photographed her injuries.  The following day, the Crown charged F.M. with sexual assault and common assault.  The Crown subsequently amended the information to charge F.M. with sexual assault and assault causing bodily harm.  In British Columbia the Crown’s charge approval standard is set out in the Crown Counsel Policy Manual and reproduced in the BCCA case of Blackmore v. British Columbia (Attorney General), 2016 BCCA 233 (CanLII) as follows:

[90]      I find it implausible that F.M. would have been charged with assault or assault causing bodily harm on the basis of the conflicting evidence tendered at trial.  I conclude that whether actively or passively, M.J. must have indicated to the police that F.M. caused her injuries.  By the trial date, M.J. admitted it was M.Q. who inflicted the injuries upon her and the Crown directed a stay of proceedings to the charge of assault causing bodily harm

[91]      M.J.’s evidence was relatively consistent between her evidence in chief and her cross-examination on the salient issues.

[92]      M.J. was restrained in her evidence against F.M.  As indicated previously, she never alleged he touched her sexually.  All she says is that when she woke up her pants were down and F.M. was sitting fully clothed on a chair in the living room.  She didn’t say and probably couldn’t say that F.M. was the only person in her residence between the times M.Q. left for [omitted for publication] until he returned with B.P.

[93]      Still, M.J. does have a motive to fabricate.  She was and may still be in a relationship with M.Q. who is, on his own evidence, a jealous and violent man.  When asked if she locked the door because she was afraid M.Q. would come back and hurt her, M.J. said yes, and he has done so “more times than you can count.”  When explaining why she went in the bathroom and locked the door, M.J. said that M.Q. gets aggressive when he drinks and “I kinda figured he was going to do something to hurt me.”

[94]      In my view, M.J. has a motive to support M.Q.’s version of events to assuage his anger for her personal safety.

[95]      I found nothing about M.J.’s demeanour while testifying which detracted from her credibility.

[96]      I find plausible M.Q.’s evidence that when he walked into his residence with B.P. he saw something which enraged him.  Nevertheless, his evidence is implausible in a number ways which I have discussed below.

[97]      Firstly, I find implausible that M.Q. observed M.J. with a “puffy eye” at the time of the offence.  It makes no sense to me that if F.M. sexually assaulted M.J. while she was unconscious and non-resistant, that he would inflict physical injuries to her face.  If she was wakened by lights shining in the window, it seems likely she would have wakened to someone punching her in the eye.

[98]      I find it implausible that if M.Q. truly believed M.J. had just been physically injured and sexually assaulted by F.M., he would leave her alone and go on a 24 hour drinking spree to Prince George with B.P.  M.Q. didn’t call for help from the police or the ambulance or even a relative.  He took off, leaving M.J. alone and injured without support, a phone, or a vehicle.

[99]      It makes no sense that M.Q. would spend five hours driving around [omitted for publication] in the dead of the night looking to chance upon F.M. outside his home.  M.Q.’s explanation as to why he didn’t go to F.M.’s home is unbelievable.  M.Q. claims he was concerned about going to F.M.’s home to beat him up because he might be charged with breaking and entering.  M.Q. had no qualms about beating up F.M. earlier and admitted to asking B.P. for a knife to “cut off his balls.”  M.Q. said he thought about killing F.M.  M.Q. took a vehicle he didn’t own and drove without a licence while severely intoxicated to Prince George and back.  I find it unlikely that M.Q. was genuinely worried about the legal ramifications of going to F.M.’s residence.

[100]   In the circumstances, M.Q. showed an astonishing lack of concern for or sensitivity to M.J.  What was supposed to be a family trip to Prince George to go Christmas shopping became a late night drunken spree with B.P., someone with whom he was not even friends.  I find the more plausible explanation for M.Q.’s behaviour is that he knew he would be in trouble for assaulting M.J. and fled.  When he returned from Prince George and sobered up, M.Q. saw the extent of M.J.’s injuries.  They would be visible to anyone who saw her, including their counsellor.  I believe M.Q. colluded with or coerced M.J. to shift the blame for her injuries onto F.M.

[101]   M.Q. says that he encountered B.P. on the [omitted for publication] and he did not go into J.H.’s home.  This is contradicted by both B.P. and J.H., who say M.Q. came into the house and polished off a half-full bottle of Silent Sam with B.P.  J.H. says M.Q. was in his home that evening for about an hour and a half.

[102]   M.Q.’s evidence that M.J.’s pants and underwear were around her knees when he walked into the house is corroborated by M.J. and contradicted by B.P.  M.Q.’s evidence that F.M. was on top of M.J. with his pants down and genitals exposed is contradicted by both M.J. and B.P.

[103]   M.J. says that she awoke when she saw lights out the living room window.  I understand these were the lights from the [omitted for publication].  She saw these lights before M.Q. entered the house.  When M.Q. “stormed in the door”, F.M. was fully clothed.  He was not on top of M.J. or even touching her.  He was not sitting on the sofa beside her, but rather on a kitchen chair by the window three or four feet away.

[104]   M.Q. said when he saw M.J. after returning with B.P., she was lying on the sofa with her legs in the air and her head on the bottom right hand corner of the sofa by the front door.  M.J. says her head was on the sofa’s left hand arm rest and one leg was on the sofa leaning against the cushion and the other hanging off the edge of the sofa.  M.J.’s account of how she was positioned on the sofa is corroborated by the fact that Constable Wiksyk did not take scrapings of the sofa because it had been cleaned on the left hand cushion where M.J. had been laying at the time of the offence.

[105]   B.P. says when he came through the door, directly behind M.Q., he saw F.M. sitting on the kitchen chair by the window and M.J. on the left-hand side of the sofa.

[106]   If M.J. and B.P. are accurate in their description of where F.M. was positioned and how he was dressed when M.Q. entered the residence, then M.Q. could not possibly have seen F.M. half-naked on top of M.J., “hop off and pull out of her,” get up, pull up his underwear and pants and then retreat to the sofa.

[107]   M.Q. says that he only started punching F.M. after he had tried to force him out the door and F.M. tried to force his way back inside.  This depiction of the altercation is contradicted by both B.P. and M.J. who describe M.Q. as aggressively hitting F.M. while he is still sitting in the chair.

[108]   There are a number of less significant items on which M.Q.’s evidence is contradicted.  For example:

[109]   There is little external inconsistency in M.Q.’s evidence.  I infer from this that his evidence of trial did not contradict his statement he gave to Constable Wiksyk on December 12, 2017, in any significant way.  I note, however, that consistency does not necessarily mean the evidence is true.  The common law rule against the admissibility of prior consistent statements recognizes that repetition does not necessarily lend strength or credibility to evidence as consistency does not readily distinguish truth from falsehood.  A concocted statement that is repeated on one or more earlier occasions remains concocted.  For this reason, the law does not find self-serving evidence helpful to the truth-seeking function of the criminal trial process.

[110]   In this case, I accept as true M.J.’s evidence that it was M.Q. who inflicted the injuries to her face in a jealous rage.  I do not believe M.Q.’s evidence the injuries were present when he returned home with B.P. the evening of the offence.

[111]   I find M.Q.’s evidence internally inconsistent in the following instances:

[112]   As indicated above, I am satisfied that it was M.Q. who caused M.J.’s injuries.  Having done so, he had compelling reason to fabricate evidence against F.M. and he did so with respect to when he first noticed injuries to M.J.’s eye.  In service of this fiction, M.Q. tailored his evidence as to what happened that evening to evade culpability for his own criminal wrongdoing.

[113]   Similarly, it seems M.Q. became alive to the fact his attack on F.M. was also an assault and reworked his evidence to assert he only started punching F.M. after he had removed him from this home and F.M. tried to force his way back in.  I find it improbable that in the circumstances F.M. tried to remain in M.Q.’s home or presence.

[114]   There is nothing about M.Q.’s demeanour while testifying that diminishes his credibility.

[115]   J.H.’s reliability was also compromised by his state of intoxication on the evening in question.

[116]   There was nothing implausible about J.H.’s evidence.  He testified that on offence date, B.P. came to his home about 10 p.m.  M.Q. showed up about midnight.  He believed B.P. and M.Q. were there together for about an hour and one-half.  He recalls them drinking Silent Sam vodka, and perhaps some Bols rum.  J.H. says they left walking up [omitted for publication], where they both lived.

[117]   J.H.’s evidence as to M.Q.’s presence in his home on the night of the offence is supported by B.P. and contradicted by M.Q.  If M.Q. and B.P. finished off a half bottle of Silent Sam vodka, then J.H.’s estimate as to how long they were in his home that evening is reasonable.  Also, his belief that M.Q. arrived about midnight, already intoxicated, accords with M.Q.’s own evidence.

[118]   J.H.’s evidence that F.M. was never present in his home that evening is supported by B.P.

[119]   J.H.’s evidence that M.Q. arrived on a BMX is contradicted by both B.P. and M.Q.  I accept that M.Q. had arrived in the [omitted for publication].

[120]   J.H. refused to give the police a statement prior to testifying in court, therefore this factor is not helpful in assessing his credibility

[121]   J.H.’s evidence was reasonably consistent between his direct evidence and cross-examination.

[122]   I am satisfied that J.H. was attempting to recount the evening in question to the best of his ability.  He did not strike me as embellishing or exaggerating.  I do not find he had any obvious motive for misrepresenting the events of the evening.

[123]   There is nothing about J.H.’s demeanour while testifying that detracts from his credibility.

[124]   B.P. is a professed alcoholic.  He is often homeless and has a lengthy criminal record for breaching court orders and assaults.  His reliability suffers because of his level of intoxication on the evening in question.

[125]   I find B.P.’s version of events plausible, although some of his evidence I find unreliable or not credible.  I find B.P.’s evidence is plausible in respect of the following:

[126]   I do not find plausible that B.P. walked in the Q/J residence on the evening of the offence to find M.J. sitting upright, fully clothed, watching movies and chatting with F.M.

[127]   B.P.’s evidence as to M.Q. coming into J.H.’s residence and finishing off the bottle of Silent Sam is corroborated by J.H., whose evidence I accept.

[128]   B.P.’s evidence he was in the Q/J residence at the time of the alleged offence is corroborated by M.Q. and M.J.  They also corroborate where B.P. said he was standing in relation to others while in the residence.

[129]   B.P.’s version of events is corroborated in part by M.J., who says when M.Q. and B.P. arrived, F.M. was sitting fully clothed on a chair by the window.

[130]   B.P.’s evidence that M.Q. started beating on F.M. is uncontested, although M.Q. and M.J. described the incident somewhat differently.

[131]   B.P. admits that it was F.M. who reminded him that M.Q. asked him to go get an axe.  This evidence might be suspect but for M.Q.’s admission he asked B.P. to go get a knife so he could cut off F.M.’s balls.

[132]   B.P.’s evidence that while he was outside he heard M.J. yelling at M.Q. to stop it and leave her alone is corroborated by M.J.’s evidence of what happened after F.M. left the residence.

[133]   B.P.’s evidence as to his trip with M.Q. to Prince George and back is corroborated, in part, by M.Q.

[134]   B.P. refused to provide any formal statement to the police officer until the day before he testified.  B.P. spoke briefly to Constable Wiksyk on December 12, 2017, at which time he told the officer he was outside and did not witness anything.

[135]   B.P. has a criminal record and was on various court orders at the time of the offence.  He was on an Undertaking to abstain from alcohol and street drugs.  On the evening of the offence he had been drinking and using marijuana.

[136]   I accept B.P. did not like speaking to the police.  He did not have a good relationship with them.  I also accept he said as little as possible to Constable Wiksyk in order to deter him from asking any further questions.

[137]   Constable Wiksyk made notes of his conversation with B.P. outside the [omitted for publication] on December 12, 2017.  He noted B.P. said he could not tell if M.J. was sober, alert, intoxicated, or unconscious.  This was not a recorded statement and Constable Wiksyk was not questioned as whether these where B.P.’s precise words or paraphrased or a non-committal response to a question posed by Constable Wiksyk.  B.P. maintained at trial he could not say whether M.J. was sober or intoxicated at the time of the offence, but could say she was alert and conscious.  By the time B.P. got into the residence, M.J. was conscious, no one has suggested otherwise.  I don’t believe B.P. used the word “alert” because when that was put to him by the Crown prosecutor in cross-examination, B.P. corrected him and said M.J. “was coherent.”

[138]   I believe B.P. was simply trying to brush off Constable Wiksyk when he encountered him on December 12, 2017.  B.P. said he heard rumours but dismissed them because nothing had happened, yet F.M. “went to jail for nothing.”  B.P. was sure M.J. would not go around cheating on M.Q. when they had kids together.  From his perspective, M.Q. simply flipped out in a jealous rage.  B.P. did not want to come to trial and testify.  He did so because he was served with a subpoena and thought if he failed to appear he would “get a warrant.”

[139]   B.P. admitted he had little regard for time and no watch.  His evidence changed wildly as to when events occurred.  In particular, he has M.Q. arriving at J.H.’s house in the late afternoon which is inconsistent with any sensible chronology.

[140]   B.P. eventually admitted in his cross-examination with the Crown that from where he was positioned he could not actually see whether M.J.’s pants were partway down.  He said he could see the bottom part of her pants and the cuffs, and assumed that her pants were all the way up.

[141]   I do not believe B.P. saw M.J. positioned as he claims.  If I accept that upon his arrival, M.J.’s pants and underwear were down to her knees, I find it implausible she was sitting upright  watching a movie and chatting to F.M. naked from her waist to her knees.

[142]   F.M. is B.P.’s friend.  B.P. has a strong motive to protect F.M. from the charges.  B.P. also regards M.Q. as a violent and unpredictable bully, a notion which was reinforced by the events that evening.

[143]   In my view, B.P.’s loyalty to F.M. and animus toward M.Q. motivated him to embellish his evidence that M.J. was sitting on the sofa, fully clothed, with her legs crossed and chatting to F.M.

[144]   B.P. would have us believe that M.Q. was such a jealous man, that he flew into a rage and attacked F.M., simply because F.M. was alone in the residence with M.J.  This view is supported to some extend by M.Q.’s own evidence of his reaction when he returned home and saw F.M.’s pickup in the driveway.  He was already questioning what was going on before he went through the door.

[145]   I also accept B.P. did not want to get embroiled in a physical conflict that evening and sought to distance himself.

[146]   B.P. is a soft spoke [omitted for publication] man who clearly had difficulty articulating his thoughts.  He also admits to a learning disability.  He struck me as someone who was struggling to remember and respond to the questions posed to him by counsel.  It was apparent as the day wore on he began suffering battle fatigue from the repetitive onslaught of what he said and didn’t say to Constable Wiksyk on December 12, 2017, and what he could and couldn’t see when he walked into the Q/J residence on December 9 or 10, 2017.

[147]   All witnesses to the events of the evening in question were intoxicated by alcohol and marijuana, some more so than others.  M.J. was so intoxicated she passed out.  J.H. and B.P.’s ability to accurately recall events was further compromised by their difficulties articulating their thoughts.  None of the Crown’s civilian witnesses was fully reliable.

[148]   As to credibility, M.J., M.Q., and B.P. all had a strong motive to fabricate evidence: M.J. out of fear of M.Q.; M.Q. to protect himself from the legal consequences of assaulting M.J. and to a much lesser extent, F.M.; and B.P. out of loyalty to F.M.

[149]   I am satisfied on a balance of probability the following facts are true:

[150]   I do not believe M.Q. saw F.M. “on top” or “hopping off” or “pulling out” of M.J.  I do accept he saw her with her pants and underwear part way down.  The question I must answer is whether this this is compelling circumstantial evidence that it was F.M. who pulled down M.J.’s pants and underwear?  Can I infer from the evidence that no other person could have done this, including M.J.

[151]   As I do not accept M.Q.’s evidence of F.M. having intercourse or attempted intercourse with M.J., then the Crown will have to rely on circumstantial evidence to prove the offence.  It was a crime of opportunity.  The Crown must show F.M. was the only person in the residence and it can be inferred that M.J. did not pull down her own pants.  Accordingly, I must be satisfied beyond a reasonable doubt that F.M.’s guilt is the only reasonable conclusion that can be drawn from the totality of the evidence: R. v. Villaroman, 2016 SCC 33 (CanLII), para.55.

[152]   The evidence does not have to exclude entirely other conceivable inferences, but such alternatives must not raise a reasonable doubt.  In Villaroman, Cromwell J., referencing Hodge’s Case (R. v. Hodge (1838) 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136 (Eng. C.C.R.)), states, in part:

[153]   M.J. says she did not pull down her own pants, which is a perfectly reasonable assumption.  On the other hand she was more intoxicated then she had ever been before and has no memory as to what happened from the time she passed out until she regained consciousness with M.Q.’s return.  Experience and common sense suggest it is unlikely an unconscious woman would pull down her own pants.

[154]   There is no evidence of anyone else other than M.Q., F.M., and M.J. being in the residence the evening of the offence before M.Q. left for [omitted for publication] and detoured to J.H.’s house.  There is no evidence as to F.M.’s whereabouts while M.Q. was absent.  He did not testify and M.J. was unconscious.  There is no evidence of anyone else arriving at the Q/J residence prior to M.Q. and B.P.’s arrival.  I am cognizant, however, the absence of evidence is not evidence of absence.

[155]   In filtering the evidence through the W(D) lens, I find:

[156]   Accordingly, I find F.M. not guilty of the charge of sexual assault.