IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused is charged that on the 14^th day of May, 2018 in Victoria, British Columbia that he sexually assaulted R.A., “the Complainant”, contrary to section 271 of the Criminal Code. For the reasons that follow I find him guilty as charged.

[2]           On the evening of May 13, 2018, the Complainant went out for the evening to celebrate the birthday of a close friend. In preparation for the evening’s festivities, she drank four or five cans of an alcoholic beverage which she indicated had a 5% alcohol by volume. She was dressed in a blouse and coverall shorts which had a bib and strap attachment over her shoulders. She decided to smuggle a mickey of vodka into the nightclub to lessen the cost of the evening.

[3]           At the nightclub the special drink of the evening was a small plastic sand bucket filled with an alcoholic beverage. The Complainant testified that she believed there was three ounces of alcohol in each plastic bucket. She had two of those buckets of alcohol. She supplemented the alcohol in the plastic bucket with alcohol from her mickey and testified that she and her friend, with whom she was there to celebrate, split the mickey of vodka equally. Sometime later in the evening her friend became ill in the washroom and was escorted out of the premises. The Complainant remained on the premises and socialized with other individuals she’d met in the bar that evening.

[4]           Eventually that section of the bar closed and she retired to the lower floor of the same bar where she met the Accused. She recognized the Accused as a man who ran a local restaurant. She approached him and struck up a conversation which, she testified, lasted to the end of the evening. During that period of time, she drank two more alcoholic drinks provided to her by the Accused. She agreed that during the course of the time they were together that she would have been talkative and flirtatious with the Accused because that was her nature.

[5]           At closing time, she told the Court that she and the Accused decided to go get food and walked ultimately to a Burger King where she acquired some chicken nuggets. She testified that when she left Burger King with her chicken nuggets, the Accused hailed a cab and she got into the cab with the Accused. She said that at this point in the evening she is going along with whatever plans were developing by the moment.

[6]           On the walk to Burger King, some four or five city blocks, there was physical contact between her and the Accused that consisted primarily of the Accused having his arm around her shoulder in what one would describe as a friendly manner. She specifically denied that she ever kissed the Accused in the bar or anywhere. She was pressed repeatedly on this point and was adamant in her denial that she and the Accused never kissed.

[7]           After the two arrived at his apartment, she sat on the sofa and began to eat her chicken nuggets. She testified in direct examination that shortly after that she fell asleep on the couch. She agreed in cross examination that in fact there was a period of time before she fell asleep that she could not put together the memory of what happened. As a result, she was not prepared to deny that prior to her falling asleep that the Accused asked if he could give her a massage. She has no idea, obviously, how long this period of no recollection lasted.

[8]           Her next recollection was waking up, that her shorts are down around her knees, her bra and blouse are pulled up above her chest, and the Accused is digitally penetrating her from behind. She could also feel that the Accused appeared to be masturbating against her buttocks. She was confused by what was happening and her first reaction was to simply let him finish what he was doing. She shortly changed her mind and sat up and confronted the Accused. She testified that he, when confronted, looked shocked and guilty.

[9]           She insisted that he call her a cab immediately and he did so. He also repeatedly asked her if she was okay. She advised him that she was okay but wanted to leave immediately. While waiting for the cab, she contacted her boyfriend and made arrangements to go to his residence for the night. She testified that she spent most of the rest of the night talking to her boyfriend about what had happened and trying to decide what to do. After a day and a half of reflection, she decided to call the police and the investigation commenced. She was specifically questioned as to whether or not she went outside to call the police the night of the assault in response to her boyfriend urging that she should call the police. She denied ever going outside to call the police but did testify that she thought she might have gone outside to speak to the police in private when the police called back several days later.

[10]        The Complainant’s boyfriend testified and confirmed that he received a phone call early in the morning of May 14, 2018 and that the Complainant asked if she could come to his home and spend the evening there. He confirmed that when she arrived at his residence, she was very upset and emotionally distraught. He testified that he encouraged the Complainant to phone the police and his recollection was that sometime during that first evening, she stepped outside to make that phone call to the police. While this is in contradiction to the reality that indeed the police were contacted two days later, as the Complainant testified, in my view it is a simple error in the Complainant’s boyfriend’s memory and makes no material difference to the analysis of this matter. It certainly does not impugn the credibility or reliability of the Complainant’s evidence.

[11]        The Accused also testified. He agreed that he met the Complainant at the bar when she approached him and struck up a conversation. He testified that she was flirting with him and they had a pleasant time together. He testified, in contrast to the evidence of the Complainant, that at some point during that time together the Complainant gave him a long and passionate kiss lasting 20 or 30 seconds. The kiss was described as a full kiss on the lips.

[12]        He testified that prior to the bar closing, the Complainant walked away from him and he lost track of her. He did not see her again until he was leaving the bar. At that time, he saw her speaking to another man and the friend with whom he had come to the bar encouraged him to go speak to her. He says that when he did so, they had a short conversation about wanting to get food and the two of them wandered down the street together to Burger King where they acquired chicken nuggets. During the walk to Burger King, he believes that he held her hand and that he was very happy to be in the company of such a “pretty girl.”

[13]        At Burger King, chicken nuggets were ordered for the Complainant and paid for by the Accused. The parties agreed that they left Burger King and got a cab so they might enjoy their food elsewhere. Initially the Accused testified that he summoned a cab with no clear idea as to where he was going. He only decided to direct the cab back to his apartment once he was sitting inside the cab with the Complainant. His evidence on this score changed significantly on cross examination when he changed his story to say that there had been a conversation outside of the cab about whether or not the two would return to his apartment.

[14]        He testified that once they were back at the apartment, the Complainant sat down and began eating her chicken nuggets. He testified they were having a pleasant evening and enjoying good social conversation. He believed that the Complainant was continuing to flirt with him because, for example, she tried to feed him a chicken nugget directly into his mouth. He testified that he said to the Complainant “I’m very intoxicated, can I give you a massage?” To which she agreed. He says that she laid face down on the sofa and he began to rub her neck and shoulders moving his hands down her back. At some point early on in the massage, he unbuttoned the buttons on the front of her coveralls. He testified that he continued to massage her and began to massage her buttocks and then her crotch over her vagina on top of her clothing. He said at this point that he put his hands under her body and massaged her breasts under her brassiere. In or around this time he says that he asked the Complainant how she was doing and she replied “good.”

[15]        Shortly thereafter, the Accused left his position massaging the Complainant and went into his bedroom to freshen up. He believed that he was going to have intercourse and wanted to make himself ready. He says that he brushed his teeth, showered and put on pyjama bottoms before returning to the living room some five or six minutes later. When he returned to the living room, he pulled the Complainant’s shorts down below her buttocks exposing her genitals and pulled her blouse and brassiere up above her breasts so he could touch those as well. He confirmed that he penetrated her digitally and began to manipulate his penis. He agrees that 20 or 30 seconds after this commenced, the Complainant sat up and asked him what he was doing and insisted he call her a cab. Both parties agree that at the moment the Accused was challenged with respect to his behaviour, he stopped and assisted the Complainant in arranging for a cab, or at least a ride home. Both parties agree that during the period between the end of the physical behaviour and the arrival of the cab, he repeatedly asked the Complainant if she was alright.

[16]        The Accused also called his friend with whom he attended the bar that evening as a witness. His friend essentially corroborated the Accused’s story with respect to the events at the bar and the interactions between the Accused and the Complainant. The Accused’s friend confirmed that, from his observations, it appeared that the Complainant was showing great interest in the Accused. He also described that he observed the Complainant giving the Accused a small kiss or peck on the cheek during their interactions at the bar. He also confirmed that he observed the Complainant and the Accused holding hands or touching in some fashion at the Burger King.

[17]        The central issue here is whether the Crown has proven beyond a reasonable doubt whether the Accused sexually assaulted the Complainant.

[18]        The Crown submits that the touching of the Complainant from the moment he touched her buttocks was without the Complainant’s consent and was a violation of her sexual integrity. They say the testimony of the Accused is unreliable and ought not to be believed and as such, there is no air of reality to the defence of an honest, but mistaken belief in consent. Finally, they say that if there was some evidence on which the Court could consider a defence of honest but mistaken belief in consent, that the defence has not been established.

[19]        The defence submits that the Court ought to accept the evidence of the Accused and as such all of the touching in question was with the consent of the Complainant. Alternately, even if there is no doubt that the Complainant did not consent, that the Accused held an honest belief that she was consenting to the touching throughout the contact between the Accused and the Complainant.

[20]        The Accused is entitled to the presumption of innocence throughout these proceedings and a conviction cannot flow unless the Crown has rebutted that presumption by establishing beyond a reasonable doubt that the Accused touched the Complainant, that the touch was without her consent and that the touching violated the Complainant’s sexual integrity. R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 (S.C.C.)

[21]        There is no question that the touching of the Complainant’s buttock and vaginal area outside her clothing offended the Complainant’s sexual integrity. There is also no question that the touching that occurred after the Accused returned from the bathroom of inserting his fingers into the Complainant’s vagina while he masturbated offended the Complainant’s sexual integrity. I am satisfied that the touching in question has been proven beyond a reasonable doubt to constitute a sexual assault. The real question in this case is whether the Crown has proven beyond a reasonable doubt that the Complainant did not consent to that touching.

[22]        It is always difficult for the Courts to create hard and fast rules as to the expectations of persons wishing to engage in sexual relations. The criminal law is defined by fundamental principles that require application to individual facts on a case by case basis. This task is often made more complex in the fact finding process by the frailty of memory and the evidence available when these relationships occur following a night of alcohol or drug consumption. The Court is first called upon to assess the evidence of all of the witnesses and determine what evidence is reliable and credible, and which is not. I must ask myself if I accept the evidence of the Accused and if so, does it raise a reasonable doubt? If I reject the evidence of the Accused and do not know who to believe that too may raise a reasonable doubt. Finally, if I reject the evidence of the Accused, I must still ask myself whether, considering all of the evidence I do accept, has the Crown proven the Accused’s guilt beyond a reasonable doubt. R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] S.C.J. 26 (S.C.C.)

[23]        I appreciate that this statement of the principals of W.(D) vary slightly from the traditional version because, in my view, even if I do believe the evidence of the Accused, I may still be satisfied beyond a reasonable doubt on his own evidence that his behaviour constituted an offence.

[24]        The assessment of credibility is always a difficult task and, as indicated above, made significantly more difficult when significant levels of alcohol consumption are involved. By their own evidence, both the Complainant and the Accused had consumed a significant amount of alcohol before the events in question. Curiously, both the Complainant and the Accused minimized their respective levels of intoxication. Both the Complainant and the Accused had significantly different versions of parts of the evening.

[25]        The Accused was a credible witness. He gave his evidence in a direct and forthright manner and, on the whole, I accept his evidence. His evidence is weakened by the deliberate deceit he told the Court when he changed his evidence dramatically around the question of when he decided to take the taxicab back to his apartment. While such a deceit may, on occasion, be a reason to reject of all of a witness’ evidence, I am not satisfied that this dishonest statement is so serious. The Complainant was also a credible witness. Her evidence was weakened by her adamant denial that she never kissed the Accused at the bar. On this point, I accept the evidence of the Accused’s friend who observed the kiss but described it as a familial peck. Consequently I reject the evidence of the Accused when he describes that kiss as a passionate kiss. I find that the Complainant gave the Accused familial a peck sometime during the course of their interactions in the bar. The Accused has come to perceive that as a passionate kiss while the Complainant has forgotten the kiss entirely. Both versions are perfectly reasonable on these facts.

[26]        The Complainant’s credibility was heightened by her candid admission that, prior to “falling asleep” on the Accused’s couch, there is a period of time that she simply cannot retrieve her memory. I accept the Accused’s version of events between the time in which they were sitting on the couch and the time she lay down. I find as a fact that the Complainant lost consciousness very shortly after the moment that she lay down on the sofa.

[27]        I find as a fact that the Complainant never willingly agreed to the touching of her buttock or vagina over her clothing as part of the massage. On the other hand, I am satisfied on the balance of probabilities that the Accused was mistaken with respect to that fact and that the mistake was reasonable in the circumstances. As such I’m not prepared to find that the Accused is guilty of a sexual assault for his behaviour involving touching the Complainant on her buttock or rubbing her crotch over her clothes during the course of the massage.

[28]        With respect to the events that occurred after he returned from his shower, my conclusion is very different. As Mr. Justice Major observed in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.):

[29]        I must go on to consider the mental state or mens rea of the Accused at the time of both touching events. Section 273.1(b) of the Criminal Code provides that no consent may be had with respect to the offence of sexual assault if, “the Complainant is incapable of consenting to the activity”. Section 273.2(b) of the Criminal Code further provides that a belief in consent is not a defence where, “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

[30]        The defence of an honest but mistaken belief in the consent of the Complainant is a defence which the Crown must negative beyond a reasonable doubt and is defined by the Supreme Court of Canada as follows:

[31]        So the issue for me is whether the Crown has proven beyond a reasonable doubt that the Accused took all reasonable steps to determine whether her consent to the sexual activity was operating at the time of the actual physical contact.

[32]        Sexual activity is obviously a continuum. A smile may lead to a kiss, a kiss to an embrace, an embrace to foreplay and forepay to greater sexual contact and ultimately sexual intercourse. The Complainant is entitled to withdraw her consent at any time in the process and he or she is entitled to have his or her wishes respected by their partner. Similarly, in a situation where consent is withdrawn, not actively but by the onset of incapacity of the Complainant, at that moment his or her consent is effectively withdrawn. He or she is entitled to be free of any contact thereafter. It cannot be sustained that the consent continues until it is actively withdrawn. Of course this is consistent with the authorities. Again from Ewanchuk:

[33]        Similarly in R. v. Barton, 2017 ABCA 216, the Alberta Court of Appeal proposed a jury instruction on this issue which reads:

[34]        The analysis is equally applicable when the facts are that the Complainant has lost the capacity to consent at any time in the course of the sexual activity. Has the Crown proven beyond a reasonable doubt that the Accused knew or ought to have known that the previous consent was withdrawn as a result of her incapacity and has the Crown proven beyond a reasonable doubt that the Accused failed to take all reasonable steps to ensure that, in the circumstances, the Complainant’s consent was a continuing one?

[35]        As indicated above, I find as a fact that shortly after the Accused asked the Complainant if she wished for massage, she lost consciousness and the ability to consent. I accept the Accused’s evidence that at the time that he massaged her neck, back, buttocks and crotch, he believed, for that relatively short period of time, that her consent was active and I’m not satisfied beyond a reasonable doubt that he had failed to take reasonable steps to ensure that her consent continued to be valid.

[36]        On the other hand, I am satisfied beyond a reasonable doubt that the Accused failed to take reasonable steps to ensure that the Complainant was consenting to all of the activity that occurred after he returned from freshening up in the bathroom. By the Accused’s own evidence, which I accept, the Complainant had made no it response to his massage. At no time did she reciprocate either physically or verbally to convey any ongoing consent. Even if the Accused asked the Complainant whether or not she was alright and the Complainant responded “good”, that does not constitute reasonable steps to ensure that she was consenting after he returned from the bathroom five or six minutes later. By his own evidence, the Complainant had still not moved a muscle since she went face down on the couch. To continue touching the Complainant thereafter when the Accused must have known that the Complainant was likely blacked out is tantamount to “testing the waters”. At the time that the Accused returned and found the Complainant facedown, not having moved a muscle, a reasonable person would be expected to make positive inquiries to ensure that they had a positive response by words or actions of the Complainant’s consent to engage in further sexual activity.

[37]        It is for this reason that, although I accept the evidence of the Accused, and it certainly raises a reasonable doubt with respect to the activity prior to retiring to the bathroom to freshen up, it does not raise a reasonable doubt with respect to taking all reasonable steps to ensure the consent of the Complainant after he returned from the bathroom when, I find as a fact, she was unconscious. As Mr. Justice Hill wrote in R. v. T.S. [1999] O.J. 268:

[38]        At a time when the Accused ought to have known that the Complainant was no longer conscious and therefore incapable of consenting, to accept her passivity as consent is entirely unacceptable.

[39]        For the above reason I find the Accused guilty as charged.