R. v. Contreras Ramirez Date:, 2016 BCPC 475

Citation: R. v. Contreras Ramirez Date: 20161028 2016 BCPC 475 File No: 167271-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARTIN CONTRERAS RAMIREZ ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI BAN ON PUBLICATION s. 486.4 C.C.C. Counsel for the Crown: C. Fisher Counsel for the Defendant: J. Watt Place of Hearing: Victoria , B.C. Dates of Hearing: October 27 & 28, 2016

Date of Judgment: October 28, 2016 [1] THE COURT: Mr. Contreras Ramirez, you have pled not guilty to the charge of having committed sexual assault contrary to s.271 of the Criminal Code.

I should note at the outset that there is a publication ban in place pursuant to s. 486.4 of the Criminal Codeprohibiting the publication, broadcast or transmission in any way of information that could identify the complainant. [2] In the trial of this matter the Crown led evidence that on November 14, 2015, the complainant, N.M., was in your spa/homeoffice receiving a therapeutic massage when she fell asleep and awoke to find you sexually assaulting her. N.M. quickly left your officeand phoned police from her car, which was parked out front.

You were arrested shortly after this alleged assault occurred. [3] There is no issue in this case that on November 14, 2015, N.M. was in your home. There is also no issue of identity. This wasyour home/spa business and, as a certified massage therapist, you were providing massage services to N.M. that day. The issue in thiscase is whether the Crown has proven beyond a reasonable doubt that you sexually assaulted N.M. as she testified. [4] You, Mr. Contreras Ramirez, testified in your defence and gave evidence which, if believed, would result in your acquittal. Assuch, I must apply the formula set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, which instructs that an accused isentitled to an acquittal if his or her evidence is either believed or if it raises a reasonable doubt. If the court neither believes the evidenceof the accused, nor finds that the accused's evidence raises a reasonable doubt, it cannot convict unless it is satisfied that the Crown hasproven its case beyond a reasonable doubt. [5] Our Court of Appeal added a further nuance in R. v. C.W.H., [1991] B.C.J. No. 2735, which holds that if the court cannotdecide who to believe, it must resolve that doubt in favour of the accused person.

Still, the court has to do the hard work of determiningwhich evidence it believes or does not believe and why. [6] In applying W.(D.), I do bear in mind that while W.(D.) sets out a standard test, I am not called upon to apply a formulaicapproach or to analyze each aspect of the W.(D.) test as if it existed separate and apart from the others. [7] In R. v.

Dinardo, 2008 SCC 24, the court wrote at paragraph 23 that in cases that turn on credibility: ... the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of theevidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as awhole establishes the accused’s guilt beyond a reasonable doubt ... [8] So while W.(D.) requires a court to ask itself whether it believes the accused or whether the accused's evidence raises areasonable doubt, the court is not required to ask that question in an evidentiary vacuum. [9] In determining whether or not it believes the testimony of any witness, including an accused, the court can consider thesubstance of the testimony, its consistency, its logic or the manner in which it was presented.

The court may accept or reject testimonybased on these sorts of factors. It may also, in the case of an accused's testimony, reject that evidence "based on a considered andreasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence.” (R. v. D.(J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.)) [10] The conflicting testimony in this case is stark; however, as in many cases, what is in dispute makes up only a fraction of thetime in which the parties were in the presence of one another.

Again, as in many cases, many of the memories of events leading up to thealleged offence in this case are consistent. [11] To put matters in context, N.M., a person I accept to be a long term and consistent user of massage therapy services, found yourbusiness through Groupon, a web-based company offering discounts on travel and other services, including, as in this case, massageservices.

I accept that N.M. exercised due diligence in that when she discovered yours to be a home-based business, she made inquiriesas to your legitimacy. [12] N.M. attended at your home business in Victoria approximately 10 minutes before her scheduled appointment, as one wouldnormally expect. Her recollection of the interior of your business area, and of your initial meeting, is not controversial. You both agreethat N.M. would have walked into what looked like a business enterprise, which, among other things, included displays of your variouscertificates on the wall and business cards on the table.

N.M. was given a standard form to fill out, which she did. [13] There is no dispute in this case that N.M. did not ask for, and could not have expected from you or your company, any sort ofsexually-related massage. It is agreed that the contract was for a massage having therapeutic benefits, but not solely, and involved onlynon-sexual touching.

N.M. recalled many small details, the accuracy of which you confirmed in your testimony, including that you lefther in what I will call your anteroom, that being the reception area leading into the spa room, while you finished your dishes in theresidential part of this residence. N.M. recalled the spa room itself was unusually large and you two agree on that. She recalled Thai-themed furniture in the spa room, which you confirm was present. [14] It is agreed that you both discussed N.M.'s problems and the areas she specifically wanted to be addressed during the massage.

N.M. testified she reported a problem with her [deleted for publication]. It was an injury she testified that she had been dealing with forsome time. It was also an injury that had been diagnosed, according to N.M., through an MRI [deleted for publication]. Oddly, yourrecollection was that N.M. suffered a problem in her [deleted for publication]. Of the two versions, I accept that N.M. well knew thenature and location of her injury. [15] N.M. removed all of her clothing save for her underwear and got on the table on her back, as you had suggested, and coveredherself with a sheet.

No body parts above her shoulder were visible. Again, this is not controversial. The two of you discussed yourusing Tiger Balm on some of her problem areas and the evidence is that N.M. agreed. You also discussed using coconut oil and both of

you agree that soon after that discussion you applied the coconut oil as part of the massage treatment. It is, as counsel noted, at this point that the evidence conflicts. [ 16 ] In

summary, the Crown alleges that as you massaged N.M., she fell asleep. When she awoke she was momentarily disoriented, but quickly realized you were rubbing her right breast and digitally penetrating her vagina. Upon realizing what she alleges was actually happening to her, N.M. told you, in no uncertain terms, and this is the language she used, to "get the fuck away” from her. She was equally adamant that you leave the room and she used similar profanities to get across that point. [ 17 ] Once you left, N.M. testified that she quickly got dressed.

She recalled seeing you in the anteroom, first on the couch and then on your knees, doing what she believed was praying. Again she used forceful and profane language to indicate that she did not want you near her. She left the house very quickly, got into her car and locked the door. She recalled you came out of the house apologizing and she honked her horn to deter you. N.M. called the police. Later, she accompanied police to the hospital, where she was examined for evidence of sexual assault by a forensic nurse. [ 18 ] Mr.

Contreras Ramirez, you testified that as you were massaging N.M.'s arm at the end of nearly an hour-long massage session, N.M. suddenly opened her eyes and said to you, apropos of absolutely nothing, "Don't fucking touch me." This and other expletives were repeated several times. You left the room and sat on the couch in the anteroom. N.M. came out of the spa room dressed and as she was putting on her shoes, told you again with the use of further profanities not to touch her or to follow her. She left. It then occurred to you that she owed you $20, so you went after her to remind her of that bill.

After she gave you the finger from inside her car, you went back inside and began preparing your spa room for another customer. [ 19 ] In determining what evidence I find to be credible in this case, I have, as I referred to earlier, considered the testimony from the perspective of logic, consistency, the manner in which it was presented, any corroboration for either party, and the extent to which evidence not present serves to undermine a witness's testimony. In doing so, I find, with respect to N.M.'s testimony, that it was entirely believable. As a witness, N.M. was calm and forthright.

N.M. described an experience, that of a sexual assault that continued to pain her emotionally to this day, yet she was able to describe it calmly, objectively and consistently throughout her testimony. I have already noted that many of N.M.'s recollections about the events of that early evening at your spa in November 2015 are corroborated by you, Mr. Contreras Ramirez. [ 20 ] I have said that N.M. was forthright, and by that I mean that N.M. answered each question asked of her, though she did give extra detail in response to a number of questions particularly, but not exclusively, during her cross-examination.

As your counsel noted, Mr. Contreras Ramirez, N.M. gave answers which anticipated, in some instances, the point of the cross-examination. When asked to admit that she did not tell the 911 operator that you had rubbed her breast or digitally penetrated her, N.M. offered that she was talking to a 911 operator, not a police officer or investigator.

The evidence is helpful to N.M., but I have to ask myself whether it and the other instances in which the answers were not entirely responsive cause me to doubt N.M.'s evidence such that I do not believe her allegation of assault. [ 21 ] In considering the nature and substance of the answers, I find these do not. N.M. did offer evidence that was helpful to her, as I have said. Still, there was no evasion or obfuscation. N.M. made no attempt to exaggerate her testimony either in direct or cross- examination. Where she could not remember, she was quick to admit that.

She was also quick to accept that statements made to police closer to the event were likely more accurate than her recollection at trial. [ 22 ] Most importantly, N.M.'s testimony was logical and consistent throughout. N.M. was angry and shouted expletives when she awoke on the massage table because, as she says, she realized she was being sexually assaulted. It was suggested to N.M. that she dreamt of the assault, and I accept her testimony that as she awoke, she took a few seconds to process what was happening and realized that she was awake and that she was being sexually assaulted.

N.M. testified that she told you to “get the fuck away” from her and not to “fucking touch” her because you had been touching her inappropriately. Her reaction was to get out of your home/business and into her car. N.M. knew she would report you to police and eventually did call 911. She remained in her car on the phone with the 911 dispatcher until police arrived. [ 23 ] There are other small details, such as N.M.'s original statement to police that, as she awoke, she did not know where you were looking, but, upon reflection, recalled that you were looking at her feet.

There was also her confusion at trial as to whether she recalls feeling a burning sensation in her vagina after the assault on the way to the hospital. Again, these are not details that, in my view, undermine N.M.'s credibility. [ 24 ] N.M. also recalled that her breasts and stomach were covered in oil, as was her foot. It was argued in closing that the absence of a notation of this product by the forensic nurse, Ms. Mitchell, should cause the court to doubt this testimony.

This was yet another instance where N.M. offered, though not asked, the explanation that there was a considerable time lapse between having leapt off the massage table and the examination which occurred more than an hour later, at a minimum. The fact no oil was noted does not raise in my mind a doubt as to the veracity of N.M.'s central allegation of sexual assault in the circumstances. [ 25 ] N.M.'s testimony does have some corroboration in the evidence of Wendy Mitchell, the forensic nurse on staff who examined N.M. on November 14, 2015. There is no dispute in the evidence that Ms.

Mitchell detected some redness and tenderness on a part of N.M.'s vaginal area that is generally fairly protected. The evidence is also uncontroversial upon reviewing her statement that N.M. felt a burning sensation in her vaginal area on the way to the hospital. The subsequent burning sensation cannot be fully explained by the gel applied by Ms. Mitchell. [ 26 ] Constables Taylor and Cope also testified that, among other things, N.M. was visibly upset when they responded to the 911 dispatch. Constable Cope did describe N.M. as being hysterical in her car at approximately 5:18 p.m.

I agree it does not follow from this that N.M.'s story is the more believable because of this evidence any more than it would be less believable if she were not hysterical. This is, I accept, simply additional evidence corroborating N.M.'s testimony. [ 27 ] Mr. Contreras Ramirez, you testified that while she was on your massage table, N.M. went from lying on the table with her eyes closed as you massaged her left arm to suddenly, and for no reason that you could discern, telling you not to fucking touch her. You

testified that this continued as she screamed expletives at you to leave the spa room, and even outside of the spa room as N.M. put on her shoes. You described N.M. as being hysterical. You described yourself as being surprised, yet calm, because, as you say, your conscience was clean. This evidence makes little sense. [ 28 ] It makes even less sense when your evidence on cross-examination is taken into account. By this, I refer to your testimony that N.M. was in the anteroom area of your spa/home office putting on her shoes. You, in your calm state, had yet to ask her why she was so upset.

You testified that when a woman is hysterical, as you say N.M. was, you felt it better to separate yourself from her until she calms down. Still, it beggars the imagination that you would not at least try to ask N.M. what had upset her. [ 29 ] On the other hand, if, as you say, it was best to leave N.M. alone until her hysteria subsided, it makes no sense that you would follow her outside to her car to try to collect $20, only to give up, turn around and go back inside when she gave you the finger. [ 30 ] I do not accept that N.M. suddenly and for no rational reason told you to get away from her.

I have already found that I accept N.M. was not dreaming when she realized you were digitally penetrating her vagina and rubbing her right breast. I find it was this knowledge that caused N.M. to act as she did. In doing so, N.M. may well have appeared hysterical, as she did, for example, to Constable Cope. [ 31 ] Mr. Contreras Ramirez, your testimony that N.M. simply irrationally and for no reason lashed out at you holds no water. Your narrative of the important events or moments lacks a logical coherency. Your testimony was made all the more incredible by your presentation.

I lost count of the times that you refused to answer simple questions put to you by Crown counsel or the times you answered a question with your own question, or the times you conveniently could not remember details, such as what part of N.M.'s arms you were massaging when she suddenly lashed out at you. [ 32 ] I find also that there is something to the submission by the Crown that your refusal to answer the simple question respecting your time in the United States would indicate a reluctance to give testimony in court that might get you in trouble; in other words, a reluctance to tell the truth, though you took an oath to do the same. [ 33 ] Mr.

Contreras Ramirez, your testimony lacked any of the hallmarks of credibility. It raises no doubt in my mind. On the other hand, I am convinced by the testimony of N.M. that the Crown has proven its case beyond a reasonable doubt.

I accept her evidence that she awoke to find you sexually assaulting her and it was for that reason, not some dream or irrational response to your having "pressured her hand," as you surmised at one point, that she acted as she did and told you in no uncertain terms, as you described it, not to touch her and to get out of the spa room. [ 34 ] It is the case that there is no DNA evidence linking you to the assault. I do not find reasonable doubt based on the absence of that evidence given the totality of the evidence that I do accept in this trial.

Moreover, the fact police did not interview persons in the area or take photographs of the inside of your office is, I find, of no moment in this case. The absence of this evidence raises no doubt in my mind. [ 35 ] For the reasons I have given, Mr. Contreras Ramirez, I am convinced that the Crown has proven its case beyond a reasonable doubt. As such, I find you guilty of the offence of sexual assault, contrary to s. 271 of the Criminal Code . [REASONS FOR JUDGMENT CONCLUDED]