IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Kenneth Jesse Smith stands charged with one count of sexual assault of J.C. contrary to section 271 of the Criminal Code.

[2]         J.C. testified for the Crown and Mr. Smith responded with his own evidence. They testified to very different versions of a sexual encounter between the two of them that took place at J.C.’s home on the afternoon of the 17^th of September 2014. J.C. is a friend of the accused’s partner, S.D.

[3]         On that afternoon, the complainant and Ms. D. had lunch together at the complainant’s Langley home. They shared a bottle of wine before Mr. Smith joined them later that afternoon. Mr. Smith had met the complainant in passing on a few prior occasions. All three of them shared wine from a box that Mr. Smith brought with him to the complainant’s home. J.C. testified that at some point that afternoon or later that evening she was sexually assaulted by Mr. Smith in the washroom located on the main floor of her home, and again in the hallway outside the washroom.

[4]         The Crown relies on J.C.’s testimony that she did not consent to engage in sexual activity with Mr. Smith and invites me to conclude that it has proved the absence of consent beyond a reasonable doubt. The Crown also argues in the alternative that J.C. was intoxicated at the time and was incapable of giving a valid consent to engage in sexual activity with Mr. Smith. For his part, Mr. Smith testified that J.C. not only consented, she initiated a sexual encounter in the washroom of her home that afternoon.

[5]         In addition to the evidence of J.C. and the accused, I have heard from a Sexual Assault Nurse Examiner [“SANE”] who examined J.C. on the morning of the 18^th of September and her records - with some edits - were tendered into evidence. Crown counsel also called Constable Lisanne Henderson, who investigated J.C.’s allegation that she was sexually assaulted by Mr. Smith. Constable Henderson recorded Mr. Smith’s warned statement on the 25^th of September. In reasons released on 26 July 2021, I ruled that this statement was voluntary and admissible. Crown counsel elected to hold the statement for cross-examination rather than tender it as part of its case in chief; the statement was subsequently employed by Crown during his cross-examination of Mr. Smith.

[6]         Finally, at the outset of the trial counsel signed and filed an Agreed Statement of Facts prepared pursuant to s. 655 of the Criminal Code. That section of the Code reads as follows:

[7]         J.C testified that she met her old friend, S.D., at a grocery store on the afternoon of the 17^th of September and invited her to come to her house in Langley for lunch. The two of them drove separately to J.C.’s house. On the way home, J.C. purchased a bottle of red wine – she recalled it was either 1 litre or 1.5 litres – which the two of them shared over lunch. J.C. testified that they split the bottle, but thinks she probably had a little bit more than Ms. D.

[8]         After finishing their bottle of wine, J.C. suggested that Ms. D. call her husband for a ride because she had been drinking. J.C. had met Ms. D.’s husband in passing on a few prior occasions and referred to him as Jesse. Ms. D. called Mr. Smith, and he arrived at the house at about 4:30 p.m. carrying a four litre box of red wine. While J.C. was cooking a turkey soup in the kitchen, Mr. Smith poured red wine from the box into the bottle that J.C. and Ms. D. had emptied earlier that afternoon. Mr. Smith poured three glasses of wine from that bottle and they sat down together on the back porch.

[9]         J.C. recalled that the three were on the porch drinking wine for about 45 minutes. J.C. got up to add some ingredients to her soup, then walked from the kitchen and across her sunken family room to use the washroom located off the hallway in the area of the laundry room.

[10]      J.C. testified that although she felt good and unaffected by the wine she had consumed that afternoon, she did not recall arriving at the washroom. Her next memory was hearing two knocks on the washroom door and Mr. Smith asking if she was okay. She was sitting on the toilet at the time with her pants and underwear down and thought she must have fallen asleep. When she heard Mr. Smith’s voice she panicked, pulled her clothes on and turned on the tap, but she could not recall washing her hands or leaving the washroom, and believes she may have blacked out.

[11]      J.C. testified that her next memory was waking up lying on her back in the hallway, which was in complete darkness. She could feel someone between her legs engaged in oral sex on her vagina; she was no longer wearing her underwear or pants. J.C. recalls thinking she was not sure if this was a dream or reality. She pushed her right leg against the wall to get herself up off the floor and get a better view of what was happening. The only light was coming from the porch. She could see a mouth on her vagina, but could not initially make out who it was, and was again unsure whether this was reality or a dream; she commented that she had had vivid dreams that seemed real in the past.

[12]      J.C.’s next recollection was seeing her cat walk by her head as her vagina was being penetrated by a penis. She was still wearing her bra and shirt. She could see the vague outlines of a face and that the person had wavy hair and was not wearing any clothing on top. J.C. testified that neither of them spoke during this encounter. She heard a noise and both of them looked to their left. The other person got up and ran to towards the front door, then came back, crouched down close to her and asked if she was okay; she recognized Mr. Smith’s voice and could now see that it was Mr. Smith.

[13]      J.C. testified that she did not consent to engage in these sexual acts with Mr. Smith, and added that she was not interested in Mr. Smith in that way, and would not have done something like this with her friend’s husband.

[14]      J.C. believed that she blacked out again after Mr. Smith asked her if she was alright, and she should could not account for his whereabouts after that. She woke up at about 9:00 or 9:30 the next morning in her own bed on the second floor of the house, still wearing her shirt and bra but without underwear or pants. She had no idea how she got there. J.C. said she was alert and did not feel any ill effects from the wine she had consumed the previous day. She later located her pants, underwear, and a stained wash cloth in a pile at the bottom of the stairs. She noticed that the front door was unlocked and testified that she always locked the door from the inside.

[15]      J.C. called her aunt, then Ms. D., and finally the police. She was examined by a SANE nurse at Surrey Memorial Hospital later that afternoon and provided a statement to Constable Henderson.

[16]      Mr. Smith agrees that he joined his wife and J.C. to share some wine at J.C.’s house some time on the afternoon of the 17^th of September 2014. He recalled having met J.C though his wife on a number of prior occasions and commented that she always seemed intoxicated.

[17]      Mr. Smith recalled that he brought along a three to four litre box of red wine, part of which he poured into an empty 1.5 litre wine bottle before pouring out glasses for the three of them. He agrees that they sat down together on the porch and engaged in small talk for about an hour to an hour and a half. He recalled that Ms. D. seemed fine, but J.C was clearly intoxicated. He said she was slurring her words, got up once in a while to dance, and was being silly and flirtatious. He said at one point she had trouble operating her phone and asked him to look at it.

[18]      J.C. went into the kitchen to stir her soup and asked if she could add some of the wine; Mr. Smith agreed, and J.C. added “a lot” of the wine to the soup. Mr. Smith mentioned that he had to go to the washroom. He said J.C. put her hand on his hand and caressed his arm, then said she was sorry. He asked where the washroom was located; she pointed him towards the washroom on the other side of the sunken family room.

[19]      Mr. Smith testified that he entered the washroom and closed - but did not lock - the door. He was inside for about 30 seconds when the door opened and J.C. entered. He tried to pull his pants up, but J.C was giggling and grabbed his penis. She said “I usually need more than this, but you’ll have to do”. He testified that J.C leaned in and kissed him for a few seconds. He could see that she had her pants around her knees. She leaned back against the counter where the sink was located, pulled him closer and tried to insert his penis into her vagina. He said that he was not able to achieve an erection – he explained to the court that two bouts of bladder cancer, surgery and chemotherapy had left him with very little sensation in his penis - and she became frustrated as she continued to try to force his penis into her vagina. She turned around and tried to insert his penis from behind, again without success.

[20]      Mr. Smith said that J.C. also grabbed his right hand and put it on her breast underneath her shirt and bra. This encounter ended when J.C. mumbled something that sounded like “so much for getting even”, then said “go back to your bitch”. As Mr. Smith began to reply, J.C. said “shut up and get the fuck out”. He testified that the entire encounter lasted some 2-3 minutes.

[21]      Mr. Smith testified that he walked out hurriedly to the patio where he re-joined Ms. D. She asked where J.C was and called for her. When there was no response, they concluded that she must have left the house and the two of them went home; he estimated the time of their departure was about 8:30 p.m. He did not tell Ms. D. about his encounter with J.C. in the washroom.

[22]      Rosalyn Chin is a SANE nurse. She examined J.C. at Surrey Memorial Hospital on the 18^th of September 2014. Her notes documenting the observations she made of J.C. during that exam were marked as an exhibit at trial. She made 21 separate findings of scratches, abrasions and bruising at a variety of locations on J.C.’s body. Some of these were described as “healed”, “healing”, or “scabbed”. Other than that, she was unable to comment on the age of these injuries. A few of these marks were located on the back side of J.C.’s legs and arms. There were no injuries observed during her internal and external examination of J.C.’s genitals.

[23]      Ms. Chin took a number of genital swabs and these were forwarded to the RCMP lab for DNA analysis. The Agreed Statement of Facts include admissions that a male genetic profile was identified from the vaginal swab, and that the male component from that swab came from Mr. Smith.

[24]      Sexual assault is a general intent offence. In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293 at paragraph 11, the court defined the offence as an act “committed in circumstances of a sexual nature, such that the bodily integrity of the victim is violated.” The test to be applied is an objective one:

[25]      While the intent or purpose of the accused may also be a factor, it is but one of many to be considered in determining whether the conduct was sexual in nature: Chase, supra, at para. 11.

[26]      In this case there is no issue about the nature of the physical contact between J.C and Mr. Smith. It is conceded by Mr. Smith that the conduct here was clearly sexual in nature. The question of J.C.’s consent or, in the alternative, her capacity to consent will decide whether J.C.’s bodily integrity was violated.

[27]      Consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” I remind myself that the Crown bears the onus of proving beyond a reasonable doubt the absence of a valid consent. Section (1.1) states that the “consent must be present at the time the sexual activity in question takes place”. Sub-section (2) describes various circumstances where, as a matter of law, there can be no consent to engage in sexual activity; that list includes sub-section (b), which states that no consent is obtained if “the complainant is incapable of consenting to the activity.”

[28]      The Supreme Court of Canada recently updated and clarified the law of “communicated” consent in sexual assault cases in R. v. Barton, 2019 SCC 33. I will summarize here the findings of the court at paragraphs 88-90 of that judgment:

[29]      Here the accused has testified that he believed J.C. was consenting to engage in sexual activity. Section 273.2 of the Criminal Code sets out circumstances where belief in consent is not a defence. I have included below that part of s. 273.2 which may arise for consideration on the facts of this case:

[30]      In assessing J.C.’s evidence, I recognize that I must not assess her credibility on the basis of debunked myths and stereotypes regarding expected behaviours exhibited by those who have been the victims of a sexual assault: R. v. A.R.D. 2017 ABCA 237, aff’d 2018 SCC 6. I must not assume that a sexual assault victim will respond to an offence of this type in any particular way.

[31]      As noted above, Mr. Smith has taken the stand in his own defence and testified about his encounter with J.C. on the 17^th of September. It follows that I have applied the instruction set out in R. v. W. (D)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, as well as the so-called “fourth step” from R. v. C.W.H., 1991 CanLII 3956 (BC CA), [1991] B.C.J. No. 2753(CA), which directs that if after careful consideration of the whole of the evidence I am unable to decide whom to believe, I must acquit.

[32]      The aim of these instructions are maintenance of the integrity of the presumption of innocence and to ensure that the trial judge avoids analysing the evidence in a way that, however inadvertently, might give rise to a shift in the burden of proof. This is a particularly acute concern where the evidence comes down primarily to the word of one person against another; it is not enough to accept the complainant’s evidence to reject the evidence of the accused:

[33]      There are areas of agreement in the evidence. There is no dispute that Mr. Smith joined his wife at J.C.’s house, that J.C. and Ms. D. had been drinking wine earlier that afternoon, and that after Mr. Smith’s arrival the three of them consumed some of the boxed wine Mr. Smith brought to the house. Both J.C. and Mr. Smith agree that there was a sexual encounter between them in or near the washroom later that afternoon or evening. The Agreed Statement of Facts take that one step further at paragraph 2 , which reads as follows:

[34]      What I take from this admission is that Mr. Smith has conceded that the sexual conduct here included a completed act of vaginal intercourse.

[35]      As noted earlier, the Agreed Statement of Facts also include an admission that Mr. Smith’s DNA was identified on a vaginal swab taken by the SANE nurse during her examination of J.C. on the 18^th of September 2014.

[36]      Counsel for Mr. Smith signed those written admissions, which were marked as Exhibit 1 at the trial. These asserted facts are therefore admissible for the truth of their contents. Curiously, Mr. Smith testified that he was physically unable to complete the act of vaginal intercourse with J.C and explained why that was not possible for him at the time. He specifically denied that his penis was ever inside J.C.’s vagina. This evidence stands in stark contradiction to the admission.

[37]      Another wrinkle emerged during the cross-examination of J.C., where she conceded that she could be mistaken about being penetrated by a penis, and surmised that this may instead have been an act of digital penetration. J.C. did not, however, recant her assertion that Mr. Smith penetrated her vagina.

[38]      Given that a completed act of vaginal intercourse has been admitted and that Mr. Smith in his evidence has at least gone so far as to admit that there was an unsuccessful attempt to complete that act, what remains to be decided is whether the Crown has proven beyond a reasonable doubt that J.C. did not consent. J.C. says she did not consent, and Mr. Smith says she instigated the whole thing and most certainly did consent. This of course requires that I assess the reliability and credibility of the two main witnesses together with the admissions and the evidence of the SANE nurse.

[39]      This analysis may also require that I apply the facts as I find them to the relevant portions of sections 273.1(2) and 273.2 of the Criminal Code and decide whether Mr. Smith’s stated belief that J.C. was consenting is a valid defence. In other words, after considering the evidence that J.C. was to some extent affected by the consumption of alcohol on that day, it may be open to me to find either that J.C. lacked the capacity to consent, or just simply that she did not consent. In cases where the complainant’s memory of the sexual activity is limited, the same circumstantial evidence may be relevant to both consent and capacity. The correct approach is to decide first whether the Crown has proven beyond a reasonable doubt that J.C. did not consent to the sexual contact before assessing whether any apparent consent is vitiated by a lack of capacity: R. v. Capewell, 2020 BCCA 82 at paras. 46, 49-50.

[40]      I will turn first to the evidence of Mr. Smith. If I accept his evidence on the issue of consent or if that evidence leaves me with a reasonable doubt that is not the end of the matter. The question of J.C.’s capacity to consent arises on the evidence in this case. If I have a reasonable doubt on the first issue, I must go on to decide whether the Crown has proven beyond a reasonable doubt that J.C.’s apparent consent is vitiated by a lack of capacity to give a valid consent.

[41]      Mr. Smith says he was surprised when J.C. entered the washroom and that the sexual encounter that followed was entirely her idea. In cross-examination, he testified that he found J.C unattractive but was flattered that J.C. was taking an interest in him in this way. He said that he had difficulty saying no to a person who was paying attention to him.

[42]      In his evidence in chief, Mr. Smith testified that J.C. came into the washroom, grabbed his penis, kissed him, and tried to insert his penis into her vagina. Mr. Smith disagreed with Crown counsel’s suggestion that this was forced intercourse and added that he “kissed her back”; that last detail was missing from his evidence in chief.

[43]      Cross-examination of Mr. Smith also revealed that he was not truthful when he gave his warned statement to Constable Henderson. He told Constable Henderson that J.C. was not flirting with him prior to their encounter in the washroom and that he did not really pay much attention to what she was doing over the course of the afternoon. When asked if he had ever slept with J.C., he told the officer that he had not spoken more than a couple of words to her and there had not been any physical contact.

[44]      When describing in general terms what happened over the course of his time at J.C.’s house, Mr. Smith told the officer that it was “basically a non-event evening.” I find that this answer was, in effect, another straight denial that there was sexual interaction of any kind with J.C. that night. In cross-examination, Mr. Smith at least conceded the obvious: contrary to what he told Constable Henderson, the evening was quite eventful.

[45]      I have already pointed out the inconsistency between paragraph 2 in the Agreed Statement of Facts, where Mr. Smith admitted having had vaginal intercourse with J.C., and his evidence at trial that he was physically incapable of completing that act.

[46]      In assessing Mr. Smith’s evidence I have also considered the evidence of injuries observed by the SANE nurse, Rosalyn Chin, during her examination of J.C the following day. Ms. Chin made note of a number of bruises, scratches and abrasions in a variety of areas on both the front and back of J.C.’s body. Many are described as “healing”, and Ms. Chin was not qualified to offer an opinion as to when the injuries were caused. I do accept her evidence that all of these marks must have been caused by blunt force trauma of some kind, but again, she cannot say and is not qualified to say with specificity what that was. J.C. testified that she could not provide an explanation for these injuries herself. What I can take from this evidence is that these injuries do not seem to be consistent with the sexual encounter described by Mr. Smith.

[47]      Having considered Mr. Smith’s evidence alone, and in the context of the whole of the evidence, I have decided that it does not raise a reasonable doubt. I do not accept his evidence that J.C. initiated a sexual encounter that included two failed attempts at sexual intercourse. This evidence was a construct designed to offer an innocent explanation for a fact Mr. Smith could not avoid or plausibly deny, that he had engaged in sexual activity with J.C. that day. His explanation at trial is obviously inconsistent with his statement to Constable Henderson made just days later, where he denied any sexual contact with J.C. at all and did whatever he could to distance himself from her.

[48]      In re-examination, Mr. Smith was asked why he lied to Constable Henderson; he replied that he did not want Ms. D. to find out about his sexual encounter with J.C. I find that this explanation is more consistent with Mr. Smith having initiated sex with J.C. than it is with an encounter started by a sexually aggressive J.C. I have also taken into account the unusual circumstance that in his evidence he contradicted a signed admission that he and J.C. had vaginal intercourse.

[49]      Having rejected Mr. Smith’s evidence, I must still go on to consider the whole of the evidence I do accept and decide whether the Crown has proven beyond a reasonable doubt that J.C. did not consent to engage in sexual relations with Mr. Smith.

[50]      J.C.’s evidence is not without its flaws; counsel for Mr. Smith referred to many of them in his submissions. The defence contends that while J.C. was trying to tell the truth, her evidence overall was not reliable. He points to her concession in cross-examination that the penetration may have been digital rather than penile as an example of a lack of clarity and precision in her evidence. Counsel carefully reviewed J.C.’s issues with memory, which was episodic rather than continuous, and featured gaps between critical events. Defence counsel concedes that some of this may have been due to J.C. having become intoxicated over the course of the afternoon, but he also submits that this did not interfere with her capacity to consent to engage in sexual relations with Mr. Smith.

[51]      I accept that J.C.’s account of her encounter with Mr. Smith is incomplete and rife with references to her being unclear about what happened, going in and out of consciousness, and self-questioning as to whether what she could recall was a dream or reality.

[52]      Although J.C. testified that she did not think she had been seriously affected by her consumption of alcohol that afternoon, it seems clear from the balance of her evidence that she was more intoxicated than she thought was. In his evidence, Mr. Smith said that J.C. was being silly when the three of them were drinking wine on the patio and again in the kitchen when she was adding strange ingredients to her soup. Mr. Smith testified in cross-examination that in his opinion, J.S. was clearly intoxicated and was slurring her words but would not agree that she was “plastered”, which was the way he described J.C. in his statement to Constable Henderson. I find that J.C. was intoxicated by alcohol to a significant degree at the time of her sexual encounter with Mr. Smith and that this condition contributed to her inability to provide a complete account of those events.

[53]      Despite these frailties, I accept J.C.’s evidence that it was Mr. Smith who initiated their sexual encounter first inside and then outside of the washroom, and that she did not consent to engage in sexual relations with Mr. Smith. J.C. had been complaining to Ms. D. and Mr. Smith that afternoon about her husband’s infidelity. It does not make sense that a short time later she would willingly engage in sexual acts with the husband of her old friend Ms. D.

[54]      I accept that J.C.’s memory of what happened is consistent with someone who was drifting in and out of consciousness, but this does not mean that she was unable to reliably describe in her evidence acts of oral sex and vaginal penetration. The act of vaginal intercourse is an admitted fact that I prefer to J.C.’s musing during cross-examination that the penetration may have been digital. That admission also puts to rest the Crown’s onus to prove that Mr. Smith was that person.

[55]      I accept that the sexual encounter with Mr. Smith happened as described by J.C. in her evidence, and that she did not consent to engage in any of those acts.

[56]      Having rejected Mr. Smith’s evidence describing his encounter with J.C. and having found that he engaged in the sexual acts described by J.C. without her consent, it is unnecessary for me to consider in addition whether J.C. had the capacity to consent. These findings are dispositive of the case.

[57]      I find Mr. Smith guilty of the offence of sexual assault.