IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           David Alvaro Garcia Morales (the “accused”) has been charged with sexually assaulting J.H. on December 21, 2013, in Burnaby, British Columbia, contrary to s. 271 of the Criminal Code of Canada (the “Code”).

[2]           He has also been charged that he enabled or assisted himself to commit the alleged sexual assault of J.H. by attempting to choke or suffocate her by grabbing her throat and covering her mouth contrary to s. 246(a) of the Code.

[3]           J.H. and the accused were complete strangers to each other prior to December 21, 2013. Both had consumed alcohol during the course of the evening. They met up as J.H. was walking eastbound on the sidewalk on the south side of Kingsway.

[4]           The weather conditions were inclement. There was snow and ice on the sidewalk, adjacent parking lots, and laneways. They walked over multiple blocks until J.H. became tired and stopped to rest at the parking lot of a closed Chinese food restaurant.

[5]           J.H. testified that the accused directed her to the rear of the restaurant where he violently sexually assaulted her. The sexual assault included attempted anal intercourse and unprotected vaginal intercourse to the point of ejaculation. The accused then fled.

[6]           J.H. called 911. Shortly after that the police arrived on scene and an investigation commenced. Part of the investigation included a medical examination of J.H. The doctor who performed the medical examination took both internal and external swabs of J.H.’s vagina. Subsequent DNA analysis identified profiles that matched both the accused and J.H.

[7]           The accused testified that J.H. fully consented to having a sexual encounter. During the course of the sexual encounter, the accused was performing oral sex and digitally penetrating J.H. while he was masturbating. He testified that he was so aroused that he ejaculated near the area of her vagina, which he says, would explain the presence of his semen inside J.H.’s vagina.

[8]           The accused testified that after he ejaculated he lost his erection and was unable to perform sexual intercourse, which angered J.H. She told the accused to “fuck off”. He took off leaving J.H. in the parking lot behind the restaurant.

[9]           The accused and J.H. were the only people present during the sexual encounter behind the restaurant.

[10]        Their versions of events are diametrically opposed. As such, their credibility and the reliability of their evidence must be determined.

[11]        Ultimately, in assessing and weighing all of the evidence, it must be determined whether the Crown has discharged their burden of establishing beyond a reasonable doubt the essential elements of the offences laid against the accused.

[12]        Pursuant to s. 655 of the Code, the accused admitted certain facts that are summarized as follows:

[13]        In direct examination, J.H. testified that in the afternoon hours of December 20, 2013, she went with her then boyfriend, R.C., to a restaurant or pub in New Westminster where she believed she had a couple of drinks of either bourbon or whiskey.

[14]        Following that, in the late afternoon or evening, J.H. and R.C. made their way to Metrotown in Burnaby, as J.H. wanted to buy some earrings. She found and purchased the earrings that she was looking for.  Afterwards, they met some people, and hung out in the area of the food court. J.H. had a couple of drinks of whiskey or bourbon from a “to-go cup”, which she brought from home.

[15]        J.H. described herself as not being “very intoxicated” and that she was aware of her surroundings.

[16]        After the mall closed, J.H. left with R.C. The plan was to go to the Edmonds Skytrain station. While it was not snowing at the time, there was snow and ice on the sidewalk as they walked towards the Skytrain station. As they travelled eastbound along the sidewalk, she described the sidewalk conditions as becoming “super slippery and icy”. She described being “slightly intoxicated”, but “coherent”.

[17]        J.H. got into an argument with R.C. As a result of the argument, R.C. left on a bus leaving J.H. on the sidewalk. She described she slipped and fell when she felt the presence of someone behind her in the area of a Whitespot or Triple-O restaurant. The presence turned out to be the accused.

[18]        J.H. recalled the accused put his arm around her and said words to the effect, “I’ll help you, like I’ll help you get home”. She responded by telling the accused that she was fine and she could get home on her own, and to please leave her alone.

[19]        The accused continued to walk with J.H. At one point, the accused asked her if she wanted to go home with him and she responded with a no. She was not sure how long they walked together, but at some point, the accused sexually propositioned J.H. She then described what occurred following the sexual proposition:

[20]        J.H. testified that the accused was not forceful in directing her to the back of the restaurant; rather, he guided her to the rear with his arm around her. She described being terrified. She described being confused and not knowing “what the hell was going on and I, unfortunately, just went with it”: ibid, p.18, ll. 37-40.

[21]        In a move described by J.H. as a desperate solution to appease the accused, she lifted up her jacket, shirt and bra, and in doing so she exposed her breasts to the accused. The next thing she recalled was being either pushed or thrown to the ground resulting in the back of her head striking the ground.

[22]        J.H. recalled that the accused pulled her tights down to her ankles, and that her legs were up by her chest and neck area, and that either his arm or his hand was pushing on her neck with sufficient force that she had trouble breathing.

[23]        The accused first attempted to penetrate J.H.’s anus. She experienced considerable pain from this attempt. Ultimately, the accused penetrated her vagina with his penis to the point of ejaculation. Similar to the attempt to penetrate her anus, the penetration of her vagina caused her to experience considerable pain. Throughout the ordeal, she described feeling “terrified” and constantly screaming out R.C.’s name.

[24]        After the accused ejaculated, J.H. recalled that he just walked away in the opposite direction from where they had come from. She did not recall seeing a chain-link fence. She then made the 911 call.

[25]        She described sustaining several injuries, including, vaginal bleeding, laceration to a finger, bruises and scrapes to either or both knees and, she was pretty sure, she had a swollen neck. The physical pains from the injuries lasted for a couple of days.

[26]        She “absolutely” did not consent or encourage the sexual encounter with the accused.

[27]        In cross-examination, J.H. agreed that it was possible that she had consumed some drugs on December 20, 2013, though she was “fairly certain” that she had not. She admitted she was impaired by alcohol that evening, and described her level of impairment as “slightly intoxicated”. She denied that she was drunk.

[28]        J.H. agreed that her memory of events through the evening of December 20, 2013, and into the early morning hours was less-than-perfect, but denied that she could not remember specific facts of events that occurred that evening.

[29]        J.H. testified that she had a “very vivid memory” of the events surrounding the evening, though there were also “bits and pieces” that she could not quite remember. She agreed that in her statement to the police, some 30 to 35 hours after the encounter with the accused, she stated the events of the evening were a “blur”. She explained that she had been through a traumatic event, but that did not mean she could not recall the events of that night.

[30]        J.H. did not recall a dispute or incident between a security officer and R.C. at the Metrotown Mall.

[31]        After leaving the mall with R.C., J.H. recalled that they crossed Kingsway to the north side to buy some cigarettes at a service station. They then crossed back to the south side of Kingsway to make their way towards the Edmonds Skytrain station. While walking to the Skytrain station, an argument broke out between R.C. and her.  She could not recall what the argument was about, though denied that it had anything to do with her being drunk.

[32]        She denied that she fell because she was drunk. Rather, she fell because the sidewalk was icy.

[33]        J.H. recalled both texting and trying to call R.C. on her cell phone. She wanted R.C. to come back to get her. She denied that she sent word to R.C. that someone had sexually touched her. She had no memory of R.C. coming back to confront her about any touching allegation.

[34]        J.H. testified that it was her intention to either get on a bus or continue walking along Kingsway to the Edmonds Skytrain station. Either way, she agreed that she did not have any money on her that evening to pay for the bus or the Skytrain.

[35]        J.H. recalled the accused putting a hand on her shoulder or her arm to help her up to her feet. Words were spoken between the two of them, though she could not recall the conversation. She denied that she “yelled” that she had just been raped when she first came into contact with the accused.

[36]        J.H. agreed that the two of them continued to walk eastbound along Kingsway and that she had opportunities to “ditch” the accused. She did not recall if there were any open businesses which would have given her an opportunity to avoid the accused. She testified that she did not know what to do and that she was afraid.

[37]        It did not cross J.H.’s mind while she was walking with the accused that she could have used her cell phone to contact friends or the police to seek assistance. She had no recollection of talking to R.C. on her cell phone and yelling at him for abandoning her.

[38]        J.H. denied that the accused offered to pay for a cab for her to get home. Rather, she recalled the accused inviting her to go to his home. She also recalled that on two occasions the accused offered to pay her money for oral sex, though she could not recall the amount he was prepared to pay.

[39]        When they got to the area of the Chinese food restaurant, J.H. characterized the suggestion that the accused told her that he would wait in the parking lot of the restaurant with her until a cab came to take her home as “impossible”.

[40]        J.H. agreed that she was tired and voluntarily went into the parking lot of the restaurant to rest. She denied that, at her request, the accused crossed the street to go to a Super-Save gas station to buy her some cigarettes. Had he crossed the street to get cigarettes, she would have left.

[41]        J.H. had a vague recollection that the accused directed her to the rear of the restaurant with his arm around her back. She denied this took place after he told her he was unable to get her any cigarettes. She agreed that she was not pushed or dragged to the rear of the restaurant, but chose to go with him because she was afraid.

[42]        J.H. agreed it was not a rational act to pull up her clothing to display her breasts to the accused behind the restaurant. She agreed that it was hard to believe that she did such a thing, reiterating that she was not thinking rationally.

[43]        While admitting that she lifted up her clothing to show her breasts, J.H. denied the suggestion that the accused proposed that they find a different place to go, and that she said, “no, let’s just do it right here”. She denied the suggestion that she then put her jacket on the ground and then lay on the ground where she was joined by the accused, and they began kissing which then led to the accused performing oral sex on her.

[44]        J.H. denied that there was any conversation about sexual intercourse. She denied that her legs were wrapped around the head of the accused while he performed oral sex. Rather, her legs were pinned up by her chest and throat area. The accused had pulled her tights down to her ankles and that is when she felt his penis and not his fingers, penetrate her vagina.

[45]        J.H. denied any conversation respecting sexually transmitted diseases. She denied that he was masturbating while performing oral sex on her, and ejaculated onto her.

[46]        J.H. described the accused having a hand or forearm on her throat when her legs were pinned up by her chest and throat area, which caused breathing difficulties. She described experiencing pain and being terrified.

[47]        J.H. denied the suggestion that she was upset that the accused had ejaculated prior to intercourse, and that she told the accused to “fuck off and get lost”. She agreed that the accused did leave the rear of the restaurant by walking westbound, but did not see him jump over any fence. She then got up and started walking or running towards Kingsway where she phoned 911.

[48]        J.H. denied the suggestion of the accused that she regretted the sexual encounter with the accused and that is why she called 911. She agreed that she did not try to physically resist the accused, but she was screaming like “bloody murder”.

[49]        When it was suggested that it was open to her to fight back J.H. responded:

[50]        At the time of her sexual encounter with the accused, J.H. was using an Intrauterine Device (“IUD”) as a means of birth control. She had been using such a device for two years and recalled on one occasion experiencing spotting attributed to the use of the IUD.

[51]        In response to questions by the Court, J.H. estimated that she was approximately 142 to 145 pounds on the date of the encounter with the accused.

[52]        J.H. recalled that her cell phone fell into a puddle during her encounter with the accused.

[53]        Other than her tights, J.H. probably was not wearing any underwear that evening.

[54]        The Crown called various police officers to give evidence at this trial. That evidence included:

[55]        Constable Sarah-Louise McIsaac testified that she was dispatched at or around 0034 hrs. in response to an emergency call that a female had been sexually assaulted in an area later identified as 6408 Kingsway in Burnaby. At 0037 hrs., Constable McIsaac was waved down by J.H.

[56]        Constable McIsaac was asked to describe J.H.’s demeanour when she first made contact with her:

[57]        Constable McIsaac observed that J.H.’s clothing was wet. J.H. also complained that her leggings were wet.

[58]        At Constable McIsaac’s request, J.H. gave a statement in relation to the alleged sexual assault. As she gave her statement, Constable McIsaac observed that J.H. was shaking, she was upset, there were tears on her face, she appeared scared and she looked cold.

[59]        Constable McIsaac described J.H. as being very cooperative. She described her repeatedly asking, “have you found this person?”

[60]        J.H. declined EHS assistance. Constable McIsaac then took J.H. to the VGH to have a sexual assault examination. She described J.H. as being very cooperative and willing to have a sexual assault examination and to provide any evidence which may support any DNA findings.

[61]        In direct examination, R.C. testified that in the afternoon of December 20, 2013, that he went with J.H. to a location at the New Westminster Quay before going to the Metrotown Mall. He recalled that they took some premade whiskey drinks split 50-50.

[62]        They arrived at the Metrotown Mall between 4:00 PM and 5:00 PM. After doing some window shopping they ended up in the food court where they ‘hung out’ with some people they met for a couple of hours.

[63]        At one point R.C. went outside with two of the individuals to smoke some hashish.

[64]        R.C. left with J.H. after being told by a security guard that the mall was closing. He did not know what time it was when they were asked to leave.

[65]        After leaving the mall they decided to get some cigarettes, and then make their way to the Edmonds Skytrain station. They crossed Kingsway to the north side where they purchased some cigarettes at a Chevron gas station, before crossing back to the south side, and proceeding eastbound towards the Skytrain.

[66]        R.C. described that he was “fine” but that J.H. was “really drunk” as they walked eastbound along Kingsway. After walking for 10 to 20 minutes, R.C. became frustrated over the time it was taking to get to the Skytrain, and blamed J.H. for underestimating the distance in weather conditions where it was windy and cold with snow on the ground.

[67]        R.C. described that they both became upset and frustrated, resulting in an argument breaking out. At one point he hopped on a bus as he did not want to be with J.H. as he was irritated with her.  While on the bus, he received a phone call from J.H. asking that he come back for her because someone was following her and had tried to grab her.

[68]        R.C. got off the bus and went back to join J.H. He did a reconnaissance of the area for 10 to 20 minutes, but failed to find anybody who may have accosted J.H. He felt that J.H. had made up the story as a ruse to get him back to be with her. This made him more upset, so he again hopped on a bus, leaving J.H. to her own devices.

[69]        In cross-examination, R.C. described J.H. as “stumbling around” from her consumption of alcohol. He denied that J.H. smoked any hashish that day.

[70]        R.C. agreed with the suggestion of the accused that there was some type of dispute or confrontation with a security guard at the mall which resulted in them being asked to leave the mall.

[71]        R.C. denied the suggestion of the accused that he became irritated in part due to J.H.’s state of intoxication. It was the underestimation of time they took to get to the Skytrain station in snowy weather conditions that caused his irritation.

[72]        R.C. agreed that J.H. expressed jealousy that he was involved with other women “on the side” during the argument.

[73]        R.C. agreed that after he went back to J.H., after she had complained that someone tried to grab her, she told him that this incident took place right where R.C. met up with her.

[74]        In the following exchange it was put to R.C. that, the next morning after J.H. returned from the VGH, she told him no sexual assault took place:

[75]        Though it was put to him, R.C. had no memory of telling the police in his statement dated December 26, 2013, that it was his opinion that J.H. was “crying wolf” or that he “called bullshit on it.”

[76]        R.C. agreed with the accused that J.H. had called him after he caught the bus on December 21, 2013, at 00:07 hrs. 00:08 hrs., 00:11 hrs., and 00:25 hrs. His memory was vague about what, if any, conversation may have taken place.

[77]        Dr. Sarah Olson was qualified to give opinion evidence in three fields: (1) medicine; (2) the forensic examination of sexual assault patients; and (3) the mechanism of vaginal injuries.

[78]        Dr. Olson performed the medical examination of J.H. on December 21, 2013, shortly before 4 AM at the VGH. She testified that she followed all required procedures in her examination of J.H.  At the completion of her examination, she completed a Sexual Assault Service Record (the “SASR”) that was filed as an exhibit.

[79]        In her SASR, Dr. Olson noted that she collected six forensic samples from J.H.. They included one buccal swab, one mouth swab, one external genital swab, two internal vaginal swabs, and one cervical swab.

[80]        Dr. Olson was asked in direct examination to first describe her initial observations of the physical examination of J.H.:

[81]        Dr. Olson was then asked to describe her observations of the genital examination of J.H.:

[82]        Dr. Olson testified that the blood pooling that she observed was likely coming from J.H.’s cervix. She described the blood pooling as significant as it was a “more bright red kind of blood … And not something I’ve seen much in my sexual assault exams”: ibid at p. 23, ll. 38 - 44.

[83]        Dr. Olson described the bleeding as active but was unable to say whether or not the cause of the bleeding was injury related. She described J.H. as “tender and uncomfortable” which made it challenging to determine the cause of the bleeding.

[84]        In Dr. Olson’s experience, it was very rare that she would observe vaginal injuries arising from consensual sexual contact. Sexually active women could sustain small abrasions or raw areas arising from consensual sex. However, in those scenarios, most of those patients have other medical issues including, “increased discharge, itching and other things that are increasing the sensitivity of their skin”: ibid at p. 25, ll. 8 - 11.

[85]        In sexual scenarios involving rough consensual sex or sex without adequate arousal lubrication, a woman could definitely experience increased discomfort, and even sustain some small tears or abrasions: ibid at ll. 18 -23.

[86]        Dr. Olson was asked for her opinion as the possible cause of J.H.’s injuries:

[87]        In cross-examination, it was suggested to Dr. Olson that, while she made a conclusion that her observations were consistent with sexual assault, that such a conclusion was not necessarily a result of sexual assault.  In response she testified:

[88]        Dr. Olson described J.H. as cooperative but upset at times. She denied that J.H. was drunk or passed out at any time.

[89]        Dr. Olson agreed that J.H. did not complain of any injury to her head, of any difficulty breathing or that there was any observable injury to her neck. She also agreed that theoretically a person running, jogging or walking in an icy area, which causes them to slip and fall to the ground, could result in some injuries to their hands and knees.

[90]        With respect to the blood pooling observed by Dr. Olson, she testified that it was difficult to quantify the amount of blood, but comparatively, it would be in an amount more typically seen on the first day of a woman’s menstrual cycle. She further testified that J.H. told her that the bleeding started after the alleged sexual assault and before the medical examination.

[91]        Dr. Olson confirmed that J.H. used an IUD as a means of birth control. She agreed that a woman using an IUD could experience bleeding during consensual intercourse, but in this case, the amount of blood she observed was much more than she would expect following consensual sex. If she was aware that the bleeding resulted after consensual sex, she would perform further investigations such as having an ultrasound performed.

[92]        It was suggested to Dr. Olson that she did not note anywhere in her records that the amount of blood she observed was an unusual amount of blood. In response to the suggestion she testified:

[93]        Dr. Olson agreed that J.H. reported that she experienced tenderness to her vagina, as a result of the alleged sexual assault. Dr. Olson agreed that the insertion of fingers, if it was rough and tough, could cause similar tenderness, though she was of the opinion that the insertion of fingers would not easily cause the same tenderness as penile penetration or another object.

[94]        Dr. Olson agreed that if multi-fingers were inserted into J.H.’s vagina that it was possible that it could cause discomfort.

[95]        Dr. Olson also agreed that it was within the realm of possibility that J.H. could have sustained injuries to her vaginal area if she had made a quick decision to have consensual sex with a partner that involved finger insertion, rather than penile penetration when she was not lubricated.

[96]        It was suggested to Dr. Olson, when taking into account the totality of the circumstances surrounding the alleged sexual assault of J.H., that her reported complaints could have occurred through a combination of events, including consensual sexual activity. In response to the suggestion Dr. Olson testified:

[97]        Lindsay Carter was qualified by the Court to give opinion evidence in relation to the interpretation of the results of body fluid identification testing, the interpretation and comparison of DNA typing profiles, and in determining the statistical significance of DNA matches.

[98]        In direct examination, Ms. Carter reviewed various laboratory reports prepared in relation to the DNA evidence seized in this case. She testified that a total of six forensic samples were analyzed for the presence of DNA, including one buccal swab, one mouth swab, one external genital swab, two vaginal swabs and one cervical swab.

[99]        DNA profiles were generated from the forensic samples. It was Ms. Carter’s opinion that the DNA typing profile obtained from the external genital swab was of mixed origin consistent with originating from two individuals, J.H. and the accused.

[100]     Ms. Carter was also of the opinion that the DNA typing profile obtained from the first of the two vaginal swabs was of mixed origin, consistent with having originated from two individuals, J.H. and the accused. There was also a trace component that was insufficient to generate a match. Further examination of the first genital swab revealed the presence of spermatozoa.

[101]     Ms. Carter was also of the opinion that the DNA typing profile obtained from the second vaginal swab was of mixed origin consistent with having originated from three individuals, J.H., R.C. and the accused. It was assumed that the cast off DNA sample related to a consensual partner, R.C.

[102]     In cross-examination, Ms. Carter agreed that DNA found in various bodily substances can survive in open air for some period of time, at least for a few minutes.

[103]     Ms. Carter also agreed that DNA can be found in other bodily substances, including skin cells mixed with saliva. While the RCMP laboratory does have a test for salivary amylase, the test is not described as a confirmatory test because amylase can be found in different body fluids.

[104]     Ms. Carter agreed with the suggestion that it was possible that saliva was present on the external vaginal swab, and on the two vaginal swabs.

[105]     It was suggested that it was possible that the DNA identified to the various vaginal swabs was deposited from saliva and not from spermatozoa. In response to this suggestion, Ms. Carter testified:

[106]     In direct examination, the accused testified that on the evening of December 20, 2013, he met up with a friend, “Alex”, at around 9 PM, at the Great Bear Pub located several blocks east of Metrotown on the north side of Kingsway.

[107]     Over several hours they both consumed a pitcher of beer. Each pitcher contained between five to six pints of beer. The accused described becoming intoxicated from the alcohol. The alcohol caused him to experience a “buzz” sensation.

[108]     Around midnight they both left the pub to go home. At that time Alex lived in Vancouver, and the accused lived in New Westminster. A bus stop was located outside of the pub for people traveling westbound on Kingsway. At the time, the accused described the weather as cold, and there were several inches of snow on the ground.

[109]     While the accused was speaking to Alex at the bus stop, his attention was drawn to a screaming female (J.H.) running eastbound on the sidewalk on the south side of Kingsway. He was under the impression that she appeared to be running away from somebody. As he was looking at J.H., she suddenly fell forward onto her hands and knees.

[110]     The accused described J.H. rolling onto her back where she remained for approximately one minute. Out of concern, he ran across the street to see if she was “okay.” Alex remained at the bus stop for his bus to arrive.

[111]     The accused asked J.H. if she was all right. She told him that “someone tried to rape her”. The accused looked around, but did not see anyone. He then put his hand out, which she grasped, and pulled her to her feet. He described J.H. as acting “normal” when she got to her feet.

[112]     While he was familiar with the impact of alcohol on individual interactions, the accused was unable to say whether or not J.H. was intoxicated, due to his state of intoxication. He did not notice anything abnormal about her speech.

[113]     The accused asked J.H. where she was going. She told him she was going home. She was on her way to take transit at the Skytrain Edmonds station. The accused offered to walk with her to the station. He described that they were walking side-by-side, along the sidewalk when they came to a bus stop. They stopped and J.H. informed the accused that she did not have any money for the bus so they just kept on walking towards the Edmonds station.

[114]     At the time, the accused had approximately $50 which was left over from the $150 that he spent at the pub. He agreed that $150 was quite a lot of money to be spent on drinks. He explained that he was buying people drinks at the pub. It did not appear to cross his mind at the time that he could have given some money to J.H. so she could catch a bus.

[115]     The accused described that they were walking normally. J.H. never expressed any concerns that she needed help in any way. She did not say anything that would suggest she would have preferred that he not walk with her.

[116]     At one point, J.H. pulled out a cell phone and contacted somebody. During the course of that conversation, she was screaming into the phone saying words, “Basically along the lines, I have been raped. Where are you? Come get me”:  (Transcript, July 26, 207, p. 17, ll. 12 -14). The accused described J.H. as hysterical.

[117]     Though he described J.H. as hysterical, the accused was not concerned, as he assumed she had phoned the police because she said that she had been raped. While she was a total stranger to him, the accused said he had no reason to disbelieve her.

[118]     They continued to walk eastbound when she made a second cell phone call. The second call was made within seconds of the first call. The accused described the content of the second phone call as similar to the first phone call. J.H. was screaming and yelling and saying repeatedly, “I have been raped. Where are you?” He again described J.H. as hysterical.

[119]     The accused did not recall having any conversation with J.H. respecting the two phone calls. He did recall that physically, while they continued to walk, J.H. was “kind of stumbling”, which he assumed may have been due to her being drunk or because of the snow. Her demeanour was otherwise normal.

[120]     The accused was asked about the impact of the snow and ice on the sidewalk. In response he testified:

[121]     J.H. made a third phone call when they arrived at the corner of Kingsway and Gilley Street. Similar to the other phone calls, the content was the same. J.H. was yelling into the phone. The only difference was how the telephone call ended. Whoever was on the receiving end was told, “Fuck you then”, and she hung up.

[122]     At this point the accused testified that his opinion of J.H. changed. He no longer believed that she had been raped. In his mind, it was obvious that she was not calling the police as no police officers had arrived. He was unaware that anyone was pursuing them: ibid. p. 25, ll. 41 -47.

[123]     It was also at the corner of the Kingsway and Gilley that the accused recalled asking J.H. to call a cab on her phone, as he did not have a cell phone. He told J.H. that he would pay for the cab to his residence and with whatever change he had left she could use it to get to her residence.

[124]     J.H. did not call for a cab. She told the accused that she was tired and needed to take a break. At this point they were situated by the Chinese food restaurant parking lot at 6408 Kingsway. J.H. suggested they could wait in the parking lot for the cab. Again, the accused did not see J.H. call for a cab.  Rather, he assumed, she would call for a cab after resting for a while.

[125]     They entered the parking lot and travelled to the east side of the restaurant. At that point, rather than calling a cab, J.H. asked the accused for some cigarettes. He did not have any cigarettes and offered to go to a gas station located on the north side of Kingsway to get some cigarettes.

[126]     The accused was optimistically thinking that, since J.H. would take a cab ride with him, if he also got her some cigarettes this would “increase the chances” that she would go to the accused’s home: ibid. p. 32, ll. 22 -25.

[127]     When the accused was asked that perhaps all J.H. really wanted was a cab ride home he responded:

[128]     The accused went to a gas station and tried to buy some cigarettes. The clerk refused to sell him any cigarettes, because all the accused had was a $50 bill, and the clerk told him he could not break a $50 bill. The clerk told the accused to leave the gas station.

[129]     The accused ran back to the restaurant. He noted that J.H. was no longer standing to the east side of the restaurant. As he got closer to the east side of the restaurant, he could see that J.H. was standing behind the restaurant.

[130]     Up to this point, the accused agreed that he had only touched J.H. on one occasion and that was to help her up from the sidewalk, when he first saw her fall, after he left the pub. Other than hoping she might want to go home with him, there was no conversation respecting sexual advances between the two of them.

[131]     The accused walked up to J.H. and told her that he could not get any cigarettes for her. She told the accused that was fine, and then lifted up her shirt to expose her breasts. The accused found her behaviour to be, “strange, weird, odd”: ibid. p. 41, ll. 6 - 9.

[132]     The accused suggested that they go to her place or to his place. J.H. declined the suggestion stating that they do it “right there”: ibid. ll. 15 - 21.

[133]     The accused testified that it was obvious to him that J.H. wanted some sort of sexual contact and that he was up to it, notwithstanding that her conduct was “a little strange, weird or odd.”

[134]     The accused was asked whether J.H.’s emotional behaviour that evening, in asserting that she had been raped earlier and then proposing that the two of them have sex behind the restaurant, was strange.  He responded:

[135]     The accused testified that he was open to following the lead of J.H. The fact that it was cold, and there was snow on the ground played no role in his thinking.

[136]     The accused testified that J.H. took off her jacket and placed it on the snow. She then lay down with her back onto the jacket. Her breasts were still exposed. He followed her to the ground, began kissing her on her cheek, on her neck, and breasts, as he moved down toward her vaginal area. J.H. was responsive and she began “moaning.”

[137]     The accused did not ask J.H. if she was okay with him performing oral sex on her because the events were happening very fast. The accused described that he was caught up “in the moment.” He interpreted J.H.’s lack of resistance to his advances to mean that she was okay with him performing oral sex on her.

[138]     The accused testified that he took J.H.’s pants off, but could not recall if he completely removed them. He described that her pants were far enough down that she was able to wrap her legs around his head and shoulders, as he performed oral sex on her.

[139]     After a short period of time, J.H. told the accused that she wanted him in her, which he interpreted as request for sexual intercourse. In response, the accused testified that he asked J.H. if she was “clean”, as he did not want to have unprotected sex with her if she did not know whether she was clean or not: ibid. p. 48, ll. 2 -7.

[140]     The accused then began to digitally penetrate J.H. while he masturbated. After approximately one minute, he ejaculated “toward” J.H., but he did not see where his ejaculate landed. The accused believed that he was on his knees at the time, and that his hands were pretty close to each other: ibid. ll. 39 -47.

[141]     Shortly after he ejaculated, J.H. again requested that he perform sexual intercourse. As he had just ejaculated, the accused told her, “No, I can’t.” J.H. responded by telling the accused to, “Fuck off” and to, “Leave her alone”: ibid. p. 49, ll. 42 -45.

[142]     The accused was under the impression that J.H. was disappointed by the turn of events. He then pulled up his pants and walked away without saying another word to her. He did not offer any assistance to J.H., because she had just told him to “fuck off and to leave her alone”.

[143]     The accused could not recall how he left the parking lot behind the restaurant, but eventually he made his way home.

[144]     In cross-examination, the accused testified that in December of 2013, he was between 5’6” to 5’8” tall, and weighed between 180 pounds to 200 pounds.

[145]     The accused denied having a problem with alcohol though he has taken some counselling and gone to Alcoholics Anonymous, but could not recall if that was before or after 2013.

[146]     The accused agreed that it was possible that when he was at the Great Bear Pub on December 20^th, 2013, he could have consumed more than five to six pints of beer throughout the evening. He described being intoxicated, but not “like completely drunk, like blackout drunk”: ibid. p. 62, ll. 9 - 23.

[147]     The accused recalled that when he crossed Kingsway to assist J.H., he suggested to her that she should call the police after she told him that she had just been raped. He could not recall her response, other than she accepted his assistance to get her back onto her feet and they started walking together.

[148]     Though the accused assumed J.H. had called the police during the first telephone call, he made no inquiries to confirm whether, in fact, she had called the police or whether they should stop and wait for the police to arrive.

[149]     The accused could not remember if he said anything to J.H. following her second telephone call. He did express his doubts that her claim that she had been raped may have been a lie.

[150]     The accused had difficulty in remembering the conversation he had with J.H., as they walked eastbound along Kingsway. He recalled that it was his intention to try to get to know her better, though he was troubled that she may have been lying about having been raped.

[151]     As far as what the accused got to know about J.H., she told him that she lived in Coquitlam but he could not recall if she gave him her name. He described his memory as being “fuzzy” about any details of what information was exchanged so they could get to know each other better: ibid. p. 84, ll. 7 - 43.

[152]     The accused could not remember if J.H. asked any personal questions about himself or whether or not he asked her if she had a boyfriend. When they got to the intersection of Kingsway and Gilley Street, J.H. made her third telephone call which persuaded the accused that J.H. was lying when she said she had been raped that evening.

[153]     At this point, the accused testified that he wanted to go home so he asked J.H. to call a cab after her third telephone call. While wanting to go home, he also agreed that there was still a possibility, “50-50” that he might get lucky, and J.H. would agree to go to his home.

[154]     When it was suggested to the accused that he wanted to sleep with J.H., he responded, “I don’t know. Yeah. Crossed my mind.” He agreed that his chances of sleeping with J.H. could improve when he offered to buy her cigarettes: ibid. p. 89, ll. 22 - 28.

[155]     The accused agreed that he did not specifically ask J.H. if she had called for a cab; rather, he assumed she had done so, though he was not really paying attention over whether she called a cab or not. He did not think that J.H. had actually called for a cab at the time that they were standing at the east side of the restaurant located at 6408 Kingsway.

[156]     At this location and time, the accused agreed that he was actively working on getting J.H. to come home with him. The fact that he believed she had been lying about being raped was something that happened in the past, and he put that circumstance behind him: ibid. p. 91, ll. 6 - 13.

[157]     The accused testified that since J.H. had expressed some interest in taking a cab with him that was a cue that she may have wanted to go home with him. When pressed during a series of questions concerning the expectations of the accused, he agreed with the suggestion that if J.H. agreed to go to his home that, if the “opportunity arose”, it was possible that sexual activity could take place: ibid. p. 98, ll. 8 - 33.

[158]     When he went to purchase the cigarettes, the accused described the clerk at the gas station as “standoffish”. He could not recall what the clerk was thinking though it was the accused’s impression that he had problems in breaking a $50 bill.

[159]     When the accused was asked if he was told to leave the gas station he responded:

[160]     When the accused returned from gas station, he did not see J.H. in the parking lot; and he agreed that he was disappointed. However, he considered it was lucky for him when he located her behind the restaurant.

[161]     It was suggested to the accused that when he located J.H. behind the restaurant that he must have asked her what she was doing there? He recalled that he possibly asked her that question. He recalled telling her that he could not get her any cigarettes.

[162]     The accused was again asked if he questioned J.H. concerning why she was behind the restaurant in the following exchange:

[163]     The accused agreed that when he located J.H. behind the restaurant, and she lifted up her shirt to show her breasts, that there had been no prior sexual behaviour between the two of them.  There had been no flirtatious behaviour. He did not even know her name at this point. When he was asked if he even cared who she was he responded, “Not at that point, once that happened, no. I was - - I was in that the moment, said okay, fine…”: ibid. p. 101, ll. 22 - 24.

[164]     When she showed her breasts the accused expressed experiencing some shock, but he was otherwise thrilled with what had occurred. He had done nothing for J.H. and now had the good fortune of having her display her breasts. By displaying her breasts, he felt that she was sexually interested in him.

[165]     The accused agreed that he did not ask J.H. what sort of sexual interaction she was expecting. He also agreed that while she was a total stranger, it never crossed his mind to question what was happening. He testified that everything was happening very fast, and reiterated that he got caught up in the moment: ibid. p. 104, ll. 4 - 14.

[166]     The accused testified that he did not care that it was cold and snowy. When asked if he was concerned that J.H. might get cold because she took off her jacket, he responded that everything was happening very fast and he was “caught up in the moment”: ibid. ll. 35 - 46.

[167]     The accused agreed that he made no inquiries of J.H. as to whether or not she was okay with this happening, as she had earlier alleged that she had been raped. He simply followed her lead.

[168]     The accused agreed that it did not cross his mind that she may have been drinking that evening or that she may have been raped that evening. That being said, he expressed being concerned about J.H.’s welfare, but not concerned enough to ask her name: ibid. p. 106, ll. 12 - 26.

[169]     The accused agreed that he never asked J.H. if she was okay to have him perform oral sex upon her. He felt that she gave off physical and verbal cues which amounted to consent.

[170]     The accused agreed that he asked J.H. if she was “clean” because he was concerned that she might have a sexually transmitted disease. It did not cross his mind to tell her that he was clean because he was caught up in the moment.

[171]     The accused testified that he was concerned as he did not have a condom. He agreed that there was no conversation between the two of them with respect to whether or not he had a condom.

[172]     The accused could not recall whether or not he asked J.H. if he could penetrate her digitally. It was his assumption that she was consenting to digital penetration, as she had told him that she wanted him in her. As she did not specify whether she wanted digital penetration or penile penetration, he assumed that she was fine with digital penetration: ibid. p. 111, ll. 4 - 27.

[173]     The accused agreed that after J.H. told him that she wanted him in her, he pulled his pants down, leaving his underwear in place. He agreed that at no time did his penis ever make any contact with J.H.’s body.

[174]     The accused agreed that with one hand he was digitally penetrating J.H., and with his other hand masturbating until ejaculation.

[175]     When he was asked if he had ejaculated on J.H., he responded:

[176]     When he was asked how he thought his ejaculate ended up in J.H.’s vagina, he responded:

[177]     The accused described J.H. moaning throughout the sexual encounter. After he ejaculated and told J.H. that he could not perform sexual intercourse, her passion turned to anger and disappointment at which time she told the accused to “fuck off” and to leave her alone.

[178]     When it was suggested to the accused that by making no inquiries whatsoever about why she was upset, or when explaining that he did not want to have unsafe sex without a condom, he demonstrated concern solely for himself, and not for J.H., he responded, “You could say that”: ibid. p. 117, l. 40.

[179]     The accused offered no assistance to J.H., and when he left she was lying on her back in the snow. In the following exchange it was suggested his behaviour was uncaring:

[180]     The Crown relied on both written submissions and oral submissions. The Crown also provided the Court with a book of authorities, many of which formed part of their written and oral submissions. Where relevant, those authorities shall be discussed in my legal analysis.

[181]     The Crown’s submissions can be summarized as follows:

[182]     The accused relied upon oral submissions. The accused also provided the Court with several authorities in support of their submissions. Where relevant, those authorities will be referenced in my legal analysis.

[183]     The submissions of the accused can be summarized as follows:

[184]     The accused has been charged with the offence of sexual assault. Section 271 of the Code provides:

[185]     Consent in relation to the intention to commit a sexual assault is limited by both the common law and by the provisions of ss. 273.1(2) and 273.2, which provide:

[186]     Section 265(1)(a) of the Code defines assault where there is an absence of consent:

[187]     Sexual assault is only indirectly defined in the Code. The Supreme Court of Canada (the “SCC”) in R. v. Ewanchuk, [1999] 1 SCR 300, at para. 24, ruled that the offence is comprised of an assault committed within a sexual context, such that the sexual integrity of the complainant is violated.

[188]     In R. v. Ewanchuk, ibid at para. 25, the Court defined the actus reus of sexual assault:

[189]     Sexual assault is a general intent offence. The Crown is not required to prove that an accused had any mens rea with respect to the sexual nature of his or her behaviour. Rather, the Crown needs only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement: ibid. at para. 41.

[190]     For the purposes of determining the absence of consent as an element of the actus reus for sexual assault, the actual state of mind of the complainant is determinative on this issue. It is the complainant’s perspective that is relevant. The approach is purely subjective: ibid. at para. 27.

[191]     A complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all of the evidence, including any ambiguous conduct. An accused’s perception of the complaint’s state of mind is not relevant unless an honest but mistaken belief in consent is raised during the course of the mens rea stage: ibid. at para. 30.

[192]     It follows from the foregoing that the trier of fact may only come to one of two conclusions: the complainant either consented or she did not. There is no third option: ibid. at para. 31

[193]     The SCC in R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 SCR 836, at para. 26, summarized when the defence of honest but mistaken belief in consent should be put to a jury:

[194]     The accused has also been charged with grabbing J.H.’s throat and covering her mouth to enable sexual assault. Section 246(a) of the Code provides:

[195]     The mens rea of this offence is the intention to render another person insensible, unconscious or incapable of resistance; but the intent to choke or strangle a person can be inferred from all of the accused’s actions.

[196]     J.H. made her 911 call to the police shortly after her encounter with the accused. In her 911 call it would be fair to characterize her state of mind as demonstrably agitated to the point of near hysteria.

[197]     What was said, her tone and phraseology, is relevant. The 911 call demonstrates her mental condition or state of mind at a time concurrent with her encounter with the accused: R. v. Stapleton, 2003 BCCA 444, at para. 9

[198]     In addition the 911 call can be used to (1), rebut a suggestion of recent fabrication and (2), to understand the state of mind of J.H. at the time she made the call: Ibid. at para. 10

[199]     The 911 call cannot be utilized as confirmation of the truthfulness of J.H.’s testimonial evidence: Ibid.

[200]     The accused elected to testify in his own defence. Accordingly, the framework for assessing his evidence as set out by the SCC in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28, applies:

[201]     To be added to the framework are the comments of Wood J.A. found in R. v. (C.W.), 1991 CanLII 3956 (BCCA), at p. 14:

[202]     The principle in the SCC’s decision in W.(D.), supra is straightforward:  the ultimate issue in any criminal case is not who the judge believes, but whether in light of all of the evidence a reasonable doubt persists:  R. v. D.S.l.C. 2004 NSCA 135, at para. 19.

[203]     As much of this case is dependent on the testimony of J.H., her credibility and reliability should be considered in light of all the other evidence.  The emphasis is on reliability:  R. v. Barwich, 2001 BCSC 1623, at para. 10.

[204]     Credibility and reliability are different. The difference has been succinctly explained in R. v. Khan, 2015 BCCA 320, at para. 44:

[205]     J.H. testified that the accused grabbed her behind the restaurant, threw her to the ground and sexually assaulted her by attempted anal penile penetration and complete vaginal penile penetration to the point of ejaculation. Following the sexual assault, the accused immediately left the area leaving J.H. on the ground. His DNA was found deposited on her genitalia both externally and internally.

[206]     The accused testified that the sexual encounter was orchestrated by J.H. and that she was an active, eager and willing participant in the encounter. He opines that his DNA got onto her and into her vagina when he ejaculated “towards her” while he was masturbating and performing oral sex on her. He testified that he left J.H. behind the restaurant on the ground because she was disappointed that he was unable to perform penile penetration so told him to “fuck off” and to leave her alone.

[207]     Prior to the sexual encounter, the accused and J.H. were complete strangers to each other. At the time of the sexual encounter, neither of them knew the other’s name. In fact, the accused testified he did not care what J.H.’s name was after she had lifted her top to display her breasts as he was “in that moment”.

[208]     It was a winter evening. There was both snow and ice on the ground. Photographs of the area behind the restaurant where the sexual encounter took place depict a dark and relatively narrow passageway. Also, where the sexual encounter took place, there was a layer of slush, snow and water on top of the asphalt. There are feet impressions around the area where the sexual encounter took place.

[209]     It is with this context in mind that the stories advanced by the accused and J.H. are examined to determine if they are consistent with the probabilities that surround the conditions existing at the time of the sexual encounter. That examination must also take into account all of the other evidence tendered prior to and after the sexual encounter.

[210]     Overall, I found that J.H. gave her evidence both in direct examination and cross-examination in a straightforward, coherent and thoughtful manner. I did not find that she embellished or exaggerated her evidence.

[211]     J.H. admitted she had consumed alcohol on December 20, 2013, and was “fairly certain” that she did not consume any drugs that day. She admitted she was impaired by alcohol that evening and described her impairment as “slightly intoxicated” but not drunk.

[212]     In cross-examination, J.H. agreed that she fell onto the sidewalk on several occasions. She denied any falls were due to her state of intoxication; rather, she fell because the ground was icy.

[213]     R.C. testified that J.H. was “really drunk” and that he was “fine” though he had consumed a significant amount of alcohol and had also smoked some hashish. I find R.C.’s consumption of a significant amount of alcohol and smoking hashish impacted the reliability of his evidence. I give little weight to his evidence that J.H. was “really drunk.”

[214]     Dr. Olson testified that during the medical examination of J.H. it was her opinion that J.H. was not drunk.

[215]     I do not find that J.H.’s consumption of alcohol through the evening of December 20, 2013, impacted her credibility and ultimate reliability as a witness.

[216]     J.H. testified that her memory of events through the evening of December 20, 2013, and into the early hours of the next morning was less-than-perfect. She described events following the sexual encounter with the accused to be a “blur.” I accept her evidence that the sexual encounter with the accused was a traumatic event. I accept her evidence that while it was a traumatic event, she was able to reliably recall the events of the night.

[217]     I am supported in this finding by the evidence of Constable McIsaac. Constable McIsaac was the first police officer in physical contact with J.H. She described J.H. as upset but cooperative. J.H. was able to provide a statement to Constable McIsaac concerning the events of the night.

[218]     I also find support in the evidence of Dr. Olson. Dr. Olson described J.H. as cooperative in relation to the medical examination and in relating events that transpired during J.H.’s encounter with the accused.

[219]     I disagree with the submission of the accused that J.H.’s failure to go to various businesses which may have been open to “ditch” the accused, or to use her cell phone to seek help somehow establishes that she wanted the company of the accused. In both direct and cross-examination, she was adamant that she told the accused to leave her alone.

[220]     The accused suggested that J.H. fabricated the allegation that she had earlier been sexually assaulted by an unknown male to lure R.C. back to be with her, because she was jealous that he may have been involved with other women. J.H. agreed she texted R.C. to come back and get her, but denied that she made any allegation of a sexual assault.

[221]     R.C. testified that J.H. did contact him after he had abandoned her complaining that someone had followed her and tried to grab her. R.C. got off the bus and came back, but saw nobody after a short reconnaissance. He left her after that and did not see her again until the next morning after she had been discharged from the hospital.

[222]     The accused submitted this conduct amounted to a fabrication and the Court should be wary to accept J.H.’s evidence that she was sexually assaulted by the accused.

[223]     As noted earlier, I did not find R.C. to be a particularly reliable witness due to his consumption of alcohol and drugs. Those same concerns apply to this submission by the accused.

[224]     In addition, the submission of the accused that J.H. was driven by jealousy stereotypes J.H. as the type of woman who is filled with malice and seeking revenge. This strategy to discredit the credibility of J.H. in an allegation of sexual violence is invidious.

[225]     It would be improper for the Court to draw an inference adverse to J.H.’s credibility based upon a stereotypical assumption. The credibility of J.H. shall be determined by the evidence and governing principles of law.

[226]     J.H. denied that the accused left her in the parking lot of the restaurant and crossed Kingsway to a service station to get her some cigarettes. She testified that had he done so she would have left. Logically that makes sense. She was consistent in her testimony that she did not want his company.

[227]     J.H. admitted that she voluntarily went into the parking lot with the accused because she was tired. She described it as “impossible” that the accused told her that they would wait in the parking lot until a taxicab came to take her home.

[228]     J.H. testified that the accused guided her to the rear of the restaurant. She described being confused and not knowing what was going on. She agreed that the accused was not physically forceful when they moved behind the restaurant. She recalled there was some conversation behind the restaurant with the accused asking her to perform oral sex for money and that things “escalated.” To appease the accused, and in an action that she described as irrational, she lifted up her top to display her breasts. Immediately afterwards, the accused threw her to the ground and sexually assaulted her.

[229]     J.H. testified that the accused pulled her tights down and forced her legs up and over her torso. He then attempted to anally penetrate her with his penis without success. She experienced pain as a result of that attempt. He then successfully penetrated her vagina with his penis. She could feel him ejaculate inside her. She was screaming through the whole ordeal. After the accused ejaculated, he simply got up, adjusted his clothes, and left without a word.

[230]     After the accused left, J.H. got up from the ground, got dressed and contacted the police by calling 911.

[231]     The accused has submitted that the Court should be cautious in finding that the 911 call actually reflected her true state of mind at the time. This submission is based on his evidence that J.H. orchestrated the sexual encounter.

[232]     I have listened to the 911 call on several occasions. I find that J.H. was hysterical and upset during the call. She sounded terrified. She appeared to be crying. This finding is also consistent with the evidence of Constable McIsaac, as noted at paras. 56 through 58 of this Judgment.

[233]     In relation to the 911 call there is nothing in that call that would suggest that J.H. concocted or fabricated that call. Her state of mind at the time she made the 911 call goes to an absence of her consent to any sexual encounter with the accused.

[234]     I agree with the submission of the accused that some of the injuries sustained by J.H., in particular to her knees, may have occurred when she fell on the icy sidewalk. That would not explain some of the injuries noted by Dr. Olson.

[235]     Dr. Olson noted two areas of tenderness to J.H.’s neck, an abrasion to the small area of her back, redness around the hand and the back. She also noted tenderness to the exterior and interior of J.H.’s vagina. She also observed a fairly large amount of blood seen pooling in the cervical area. The pooling of blood was not consistent with the commencement of a menstrual cycle. J.H. reported to Dr. Olson that she noted vaginal bleeding after the sexual encounter with the accused.

[236]     Dr. Olson was of the opinion that these injuries and the history given by J.H. were consistent with force being applied to her. Dr. Olson also testified that while it was possible, it was very unlikely that these medical injuries and complaints could result from consensual sexual activity.

[237]     I find that Dr. Olson was a credible and reliable witness. She gave her opinions in a professional and forthright manner. She followed proper medical protocols during her examination of J.H. Her opinions were not undermined in cross-examination.

[238]     I find that Dr. Olson’s opinion to be credible and reliable that force was applied to J.H. during her sexual encounter with the accused.

[239]     I find Dr. Olson’s opinion to be credible and reliable that the injuries observed by Dr. Olson were inconsistent with injuries expected in consensual sex scenarios. Dr. Olson’s opinions were harmonious with the evidence of J.H. that she did not consent to a sexual encounter with the accused and, therefore, were indicative of an absence of her consent to any sexual encounter with the accused.

[240]     The accused submitted that he gave a credible and reliable account of the events as they unfolded through the evening of December 20^th and 21^st, 2013.

[241]     I find that his credibility and reliability was adversely impacted by his state of intoxication. He admitted in his testimony that he experienced a “buzz” sensation from his consumption of alcohol. He was unable to say whether or not J.H. was intoxicated due to his state of intoxication.

[242]     On numerous occasions he testified that he could not recall or remember certain events. For example, he had difficulty recalling whether or not the ground was slippery as he walked with J.H. along the sidewalk or whether or not there was any ice on the sidewalk. He testified that JH was stumbling “a little bit” and went on to state, “like, I don’t know…”:  para. 120 of this Judgment.

[243]     It was clear from his testimony that as he walked with J.H. he experienced some optimism that perhaps J.H., a total stranger, would go home and sleep with him.

[244]     Whether or not he went to get cigarettes is not critical in determining the outcome of this trial. His testimony on this point was relevant in establishing that he was using the purchase of cigarettes to increase the chances that J.H. would go home and sleep with him.

[245]     The accused testified that when he returned from his attempt to purchase cigarettes he did not see J.H. in the parking lot. He testified that as he got closer to the east side of the restaurant, he saw J.H. standing behind the restaurant.

[246]     After reviewing the photographs and having regard to the nature of the area behind the restaurant it would be unlikely that the accused would have seen J.H. behind the restaurant as he travelled along the side. He would only have seen J.H. after he had gone the length of the building and looked to the right.

[247]     The accused found J.H.’s behaviour to be strange, weird and odd when she pulled up her top to display her breasts. He made no inquiry to determine if she was okay. He made no inquiry to determine if she may have been intoxicated.

[248]     When J.H. declined his suggestion that they go to her home or his home and then stating that they do it right there in the snow, that he did not think anything of it. He did not care that he did not even know her name. Rather, he got caught up in the moment and, “it just kind of just happened.”

[249]     The accused testified that he did not ask J.H. if she was okay with him performing oral sex upon her because the events behind the restaurant were happening very fast and, again, he got caught up in the moment.

[250]     The accused believed that he was on his knees, masturbating with one hand and digitally penetrating J.H. with his other hand.  While performing oral sex on her, that his DNA was deposited both on and in her vagina when he ejaculated “towards her.”

[251]     He was unable to say where his ejaculate landed. While he testified he pulled his pants down, he did not pull his underwear down. There is no evidence to establish how far away his penis was from J.H. at the time he ejaculated. The accused agreed that his penis never touched J.H.

[252]     When the accused told J.H. that he was unable to have sexual intercourse with her and she expressed her disappointment by telling him to “fuck off” and leave, he did not see any need to provide any assistance to J.H. He testified that she seemed able to handle herself so he simply left.

[253]     I reject the accused’s evidence that J.H. was an active, eager and willing participant who, without even knowing the accused’s name, was going to engage in a sexual encounter with him as a means of getting back at R.C. It was illogical that J.H. would willingly go alone behind the restaurant to await the arrival of the accused, a complete stranger, for the purpose of engaging in a sexual encounter. The area behind the restaurant was dark and foreboding. Snow and slush covered the asphalt.

[254]     J.H. readily agreed that pulling up her top to display her breasts was an irrational act. Perhaps it was her attempt to appease the accused. I find that her behaviour in displaying her breasts amounts to ambiguous conduct and not conduct indicative of an express consent to have an intimate sexual encounter with the accused.

[255]     I reject the accused’s testimony that J.H. orchestrated the sexual encounter in the snow and slush behind the restaurant.

[256]     I accept the opinion of Dr. Olson as credible and reliable to establish that the injuries that she observed during the course of her medical examination of J.H. were consistent with the application of force and inconsistent with consensual sex.

[257]     I accept the opinion of Dr. Olson’s as credible and reliable in establishing that the tenderness she observed to J.H.’s vagina and the pooling of a significant amount of bright red blood in the area of the cervical cavity were more consistent with non-consensual penile penetration rather than digital penetration.

[258]     I reject the accused’s suggestion that his DNA was deposited both on and within J.H.’s vagina when he ejaculated during masturbation. The basis for such a suggestion amounts to no more than mere speculation. It would also require a finding that J.H. was consenting to a sexual encounter with the accused. She was not.

[259]     They accused’s post offence conduct of simply walking away and leaving J.H. partially naked and lying on her back in the slush and snow demonstrated a callous disregard for her welfare. The accused had sexually satisfied himself and took off. Such conduct was more consistent with guilt rather than innocence.

[260]     J.H.’s 911 call reliably establishes that she was hysterical and upset during the call. There was nothing contained in that call to suggest that J.H. concocted or fabricated the call.

[261]     I reject the evidence of the accused that J.H. consented to a sexual encounter with him on December 21, 2013. After J.H. pulled up her top and displayed her breasts, the accused became caught up in the moment and forced himself upon J.H.

[262]     In weighing all of the evidence, including the evidence of J.H. and the accused, I am not left with a reasonable doubt by the evidence in relation to the essential elements of sexual assault.

[263]     I find the Crown has established beyond a reasonable doubt that J.H. was sexually assaulted by the accused on December 21, 2013, and find him guilty of that offence.

[264]     I am left with a reasonable doubt that the accused attempted to choke or suffocate J.H. by grabbing her throat and covering her mouth and, accordingly, find him not guilty of Count 2 of the Information.