R. v. Khaliq, 2022 BCPC 132

Citation: R. v. Khaliq 2022 BCPC 132 Date: 20220616 File No: 30643-2 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAHZAD KHALIQ BAN ON PUBLICATION -

SECTION 486.4(1) C.C.C. CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: T.E. Barnett Counsel for the Defendant: B. Crampton Place of Hearing: Prince Rupert , B.C. Dates of Hearing: November 23, 24, 29, 30, 2021; January 31, February 1, 7, April 11, 12, 13, 14 Date of Judgment: June 16, 2022

A Corrigendum was released by the Court on February 9, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: These are my Reasons for Judgment. I reserve the right to order a transcript and edit them to ensure proper structure, grammar, and readability. I also reserve the right to add the full citations and quotes from any caselaw that I refer to in my decision.

The result and substance of my decision will not change. [ 2 ] It is important that the court be explicit and blunt in order that everyone can understand how it is that the court has reached the verdict in the case. Some of the details within my Reasons for Judgment are therefore graphic and may be difficult to listen to, but by stating them in my Reasons for Judgment, no disrespect in any way, shape, or form to the complainant, V.W., or to the defendant, Shahzad Khaliq, is meant. OVERVIEW [ 3 ] The accused is 31 years of age.

He is charged with the sexual assault of the [omitted for publication] year-old complainant contrary to s. 271 of the Criminal Code . The BC Prosecution Service proceeded by way of indictment. The accused elected trial by a Provincial Court judge without a jury. [ 4 ] On the evening of October 24, 2020, K.M. invited the accused to attend a house party at her residence in Prince Rupert, British Columbia. The accused had been communicating with K.M. through Plenty of Fish messenger, but they had not personally met.

In addition to K.M., five other people were in the residence at the start of the party: K.B., B.C., S.H., K.M.’s 17-year-old son, and the complainant. The accused had never met or communicated with any of the other people at the party. He drove his company van, which had working GPS on board, to the party. [ 5 ] The party started around 7:00 p.m. The purpose of the party was to celebrate the complainant’s decision to change careers. The party had a 1980’s theme and was to be “a girls' night.” During the course of the party, the women played music, danced, and shared discussion about work, fishing, and guys.

They put on 1980's style makeup, smoked some marijuana, and played drinking games. [ 6 ] The accused arrived at the party around 9:26 p.m. With one exception, he was friendly and nice to the other partygoers. For the most part, during the approximate two hours and 10 minutes that he was at the party, the accused sat on the couch and occasionally engaged in casual conversation with the other partygoers, including the complainant. He told them where he worked, a bit about his background, and that in a few days’ time he would be going back to Pakistan.

As the evening progressed, at one point, the accused found himself sitting on the couch beside K.M. He leaned over and kissed her very forcefully on the lips, an action she did not appreciate or ask him to do. K.M. told the accused, “No, I'm not interested,” and then she moved away from him. [ 7 ] With the exception of the accused, who testified that for religious reasons he does not drink alcohol, everyone at the party continued drinking alcohol throughout the night. The complainant became intoxicated during the course of the party from consuming a mixture of beer, wine, vodka and marijuana.

Not feeling well, at approximately 11:30 p.m. the complainant decided to leave the party. She announced her intention to walk home as she lived only a few blocks away from K.M. and the walk would take her under five minutes. [ 8 ] At the same time, the accused decided to leave the party. Concerned about the complainant’s level of intoxication, K.M. and S.H. insisted that the accused, who was sober, should drive the complainant home. The accused agreed. Before the accused left the party with the complainant, he was given her address and her friends gave him instructions on where the complainant lived.

He was told, “You go to the bottom of the hill, you turn left. About a minute down the street, there is a set of townhouses and she lives right there.” The accused took out his mobile telephone. He saved the complainant’s address as a message on his telephone.

He did not use a map feature on his telephone before leaving the party to confirm his route to the complainant’s townhouse, despite knowing that his cellular data was not working in Prince Rupert and that he would be unable to access the Internet on his telephone unless he connected his telephone to Wi-Fi or a hotspot. [ 9 ] Upon departing from K.M.’s house with the complainant in the back seat of the van, instead of driving the complainant directly to her townhouse, the accused became lost and he drove a considerable distance around Prince Rupert.

He eventually stopped the van on Shawatlans Road, a lonely stretch of road in the industrial district of Prince Rupert, a significant distance and the wrong direction from the site of the party and the complainant’s residence. According to the van’s GPS, the van stopped on Shawatlans Road for approximately 12 minutes from 11:44:18 p.m. to approximately 11:58:11 p.m.

The events that occurred during the stop on Shawatlans Road form the basis for the charge before the court. [ 10 ] After the stop on Shawatlans Road, the accused continued driving in an attempt to find a Wi-Fi source that he could connect his telephone to in order to map the complainant’s townhouse location and finish driving her home. He eventually stopped at P.J.’s corner store where he spoke to a man who was outside the store. The man agreed to the use of his telephone as a hotspot so that the accused could get Internet on his telephone.

At the same time, the complainant got out of the van, went into P.J.’s, and subsequently refused to continue the journey with the accused who then departed alone in the van. [ 11 ] Within a couple minutes of the accused leaving P.J.’s, the intoxicated complainant vomited inside the store. The store clerk called the police. The police arrived at P.J.’s. At approximately 15 minutes after midnight on October 25, 2020, the distraught complainant went outside and called her roommate, who subsequently travelled with his girlfriend to P.J.’s where they met the complainant and afterwards brought her home.

Later the same day, the complainant told her roommate and his girlfriend that after leaving the party with the accused, she had been taken out onto the highway and been “raped up the bum.” [ 12 ] Due to her state of intoxication, the complainant has an imperfect memory of the events of October 24 and 25, 2020, including the 12 minutes the van stopped on Shawatlans Road. The accused has provided three different accounts for the events of October 24, 2020: two to Constable Radford during an in-custody interview on October 26, 2020, and the third during his testimony at trial.

[13] In considering the evidence, including the accused’s testimony at trial and the in-custody statements he made to ConstableRadford on October 26, 2020, I have considered and applied the law and principles set out in the leading decision of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. I have also reminded myself that the determination of guilt cannot become a credibility contestbetween the accused and the complainant. I have considered the accused’s evidence in the context of the other admissible evidencepresented to the court during the trial.

As such, I have not assessed the accused’s or the other witnesses’ evidence in isolation and I havebeen careful not to subject the accused’s evidence to a stricter standard of scrutiny than the complainant’s or other witnesses’ evidence. Moreover, I have reminded myself that an accused person is never required to prove their innocence or disprove any of the evidence ledby the prosecution.

Because of the nature of the evidence in the present case, I have identified and kept in the forefront of my mind thetwo legal rules concerning impermissible reasoning relating to the plausibility of human behaviour as discussed in R. v. JC, 2021 ONCA131: i. the rule against ungrounded common-sense assumptions; and ii. the rule against stereotypical inferences. Similarly, I have instructed myself that I cannot use the complainant’s lack of embellishment in her testimony to bolster her credibility:R. v. Gerrard, 2022 SCC 13. [14] The major issues to be decided in the present case are: 1.

How intoxicated was the complainant during the 12 minutes the van stopped on Shawatlans Road? 2. Has the BC Prosecution Service proven beyond a reasonable doubt that the complainant was unconscious at the time of the sexualactivity or that the complainant was incapable of consenting to the sexual activity? 3. Did the complainant consent to having sex with the accused? If yes, what exactly did she consent to? 4. Did the accused put his penis into the complainant’s rectum? 5. Did the accused sexually assault the complainant? INTRODUCTION [15] The accused is a dual citizen of Pakistan and Canada.

He was born and raised in Pakistan. Growing up, his family spokePunjabi in the family home. Urdu was the language used in the schools he attended. The accused learned rudimentary English as astudent in Pakistan, but it was not until he came to Canada for the first time in 2010 as a seasonal worker, working on the building andmaintenance of railway lines across Canada, that he began to learn and understand English such as to allow him to becomeconversational in the English language. He now speaks English quite well. [16] In 2010, the accused stayed in Canada for one month and then went back to Pakistan.

In 2011, he spent six months in Canada. In 2012, he spent three months in Canada. In each of 2013, 2014, and 2015, he spent six months in Canada. In 2016, with his father’shealth deteriorating, he spent only three months in Canada. He did not return to Canada until 2019. The accused worked in Canada forsix months during 2019 and then returned to Pakistan. In 2020, the accused had been in Canada for just under six months when he wentto the house party at K.M.’s residence. He has remained in Canada ever since. [17] The accused has never resided in Prince Rupert.

In October of 2020, the accused was not familiar with the City of PrinceRupert. He was working long hours on railway construction and maintenance, travelling from place to place as required by hisemployer. He had arrived in the Prince Rupert area from Mackenzie, British Columbia, a few days before the house party. He wasstaying at the Totem Park Lodge. [18] On the evening of October 25, 2020, Constables Radford, McCormick, and Munroe went to the Totem Park Lodge with theintention of arresting the accused for sexually assaulting the complainant the previous evening. Constable Radford knocked on thedoor.

The accused answered the door wearing shorts and a T-shirt. Constable Radford invited the accused into the hallway. ConstableRadford then arrested the accused at 20:54 hours for the sexual assault of the complainant on the previous evening. After the arrest, thepolice officers allowed the accused back into his hotel room to get some personal items, including his Canadian passport and a jacket. Constable Radford then transported the accused to the Prince Rupert RCMP detachment. [19] Upon arrival at the RCMP detachment, the accused was processed and placed into a cell.

Approximately four hours later,Constable Radford brought the accused to the detachment’s in-custody interview room. She conducted a 90-minute video and audio-recorded interview of the accused. During the course of a voir dire earlier in the trial, the accused challenged the voluntariness of thestatements he provided to Constable Radford during the in-custody interview. The accused, as is his right, did not testify during the voirdire. On April 12, 2022, I ruled that the BC Prosecution Service had proven the voluntariness of the statements made by the accusedbeyond a reasonable doubt: R. v. Khaliq, 2022 BCPC 112.

It was clear to me from the video and audio that the accused’s cooperationand participation in the interview were voluntary and that he wanted to tell Constable Radford his side of the story. The Accused’s In-Custody Interview [20] In his first two accounts, given to Constable Radford during the course of the in-custody interview on October 26, 2020, theaccused explained how English is not his primary language, how he came to be at the party, how all the women at the party were drunk,and that he had no sexual interest in K.M., but was interested in her friend K.B.

He explained how when he left the party with thecomplainant as his passenger, he became lost and without Internet on his mobile telephone, he was unable to get her home. [21] In describing the complainant’s drinking and state of intoxication, the accused told Constable Radford that the complainant wasnot only drunk, but “like she was going crazy.” He described the complainant as drinking vodka straight from the bottle. As for physical

symptomology, he stated that at the party and while they were leaving, “she was like falling on the garbage cans and she was like, she was falling in the, in the sink and like she was falling on this thing.” He went on to tell Constable Radford that, “And, umm, she was crying. I don't know why she was crying. And then, like, I don't know, she was doing all like weird stuffs alright.” [ 22 ] In telling Constable Radford about his difficulty in finding the complainant’s townhouse, he explained how they stopped at a convenience store to try to get help.

The accused painted a picture of himself as a person of compassion towards the complainant, helpfully trying his best, in frustrating circumstances, to get her safely home. In doing so, he omitted telling Constable Radford about stopping for 12 minutes on Shawatlans Road. [ 23 ] In the latter part of the interview with Constable Radford, when confronted by Constable Radford with the GPS evidence that showed the van had stopped on Shawatlans Road, he provided an explanation on why he omitted the part about stopping on Shawatlans Road. He stated: I stop and, uh, went to take a leak.

And yeah, I turn off, then I came back and then was out of the car and it took me, to like, quite a bit to get her back into the car. She was walking this way, that way, alright. And, uh, then I get her ba- get her get her in back in the car. And, uh, then like you know, another 4 min[ute], idle, was like just like she lost her phone. Alright so I tried to find her phone. Where she lost it. So I found her phone. Then I gave her her phone.

I said, okay, alright, then I turned around then drove, like that's like … [ 24 ] Constable Radford, after discussing at some length with the accused what happened at the side of the road and how the GPS proves a different version of events from that what the accused originally told her, continued the questioning of the accused: Q So do you not think that, put yourself in my shoes, does that not look suspicious to you? A You know. Q Right. A I, I can't like you know. Q I know you can't make things appear as they are but to me when you tell me and you give a whole entire story.

A Yeah Q And you gave a lot of detail A Yeah Q And then all of a sudden, I tell you that your car has GPS A Yeah Q And you stopped and then all of a sudden you give me more details about you stopping A Yeah Q Was at the exact moment that she said she was sexually assaulted by you, right.

That's that one piece of information that you left out A Yeah Q Was at the exact moment that she said she was sexually assaulted by you A Alright the … reason I left out, alright, because she's already claiming like whatever she's saying, like sexual insult. [ 25 ] After some more discussion, Constable Radford returned to the topic of DNA: Q K so you've never had sex with her prior either like this is the first time you've ever met her you've never had sex with her at all A Yup. I never her before, yeah Q K.

I just want to make sure, cuz in the end if the, like we have DNA tests, k, when those come back, I want you to understand that we're gonna be doing DNA testing on them A Ok Q K. So if it comes back as it's not yours or if it come back as yours right, we're trying to match things up A Ok Q K. So that year umm by you saying that and you saying you've never had sex, will you if I asked you for a DNA test which is, uh, like a swab like a cheek swab, would you provide a ch- uh a sample? A No not right now [ 26 ] The accused denied any sexual contact with the complainant.

He specifically denied that his DNA would be in or on the complainant.

The Accused’s Testimony at Trial [ 27 ] The accused testified at trial that he had no Internet service on his mobile device and had become lost trying to drive the complainant home. Having to urinate, he stopped the van on Shawatlans Road to relieve himself at the side of the road. When he returned to the van, he discovered that the complainant had gotten out of the van and wandered off. He went after the complainant and brought her back to the van. He opened the van’s rear-passenger-side sliding door so that the complainant could get into the rear seat of the van.

The complainant turned to him and asked him twice, "What are you doing?" The accused responded by telling the complainant, “I'm trying to help you get back into -- inside.” The complainant then asked him, "Do you want to have sex?" The accused was quiet for a few seconds. He then answered, "Yes." [ 28 ] At this point, according to the accused, the complainant took her pants off, and bent over with her buttocks facing him. He placed his hands lightly on her hips, she pushed her buttocks into his penis, and then he placed his penis inside her vagina and they had vaginal intercourse.

He strongly denied that they had anal intercourse. [ 29 ] After he ejaculated, the accused told the complainant, “Let's go now,” and they got back into the van, where he says the complainant asked him, “Where did you learn this?" The accused says the complainant went on to compliment him and told him, “That it was fantastic.” He also testified that the complainant offered to have intercourse with him again right away, but the accused said, "No, let's go now.

I want to drop you off at your home." He told her, “Let's find a store, then I will drop you off at your home.” [ 30 ] They drove around some more, stopping at P.J.’s corner store, where he was able to use another man’s telephone hotspot to connect to the Internet and map the location of the complainant’s townhouse. When he was ready to leave P.J.’s, he went inside the store to get the complainant, but she would not continue the trip with him. After some discussion, he left her and drove away with the intention of going back to his hotel. He became lost again.

As he drove around, he unintentionally found himself back at P.J.’s. He was able to use the man’s telephone hotspot to connect to the Internet, but this time he mapped the location to his hotel. He then drove to the McDonald’s restaurant, ate a burger, and ultimately returned to his hotel. [ 31 ] When questioned by his counsel during direct examination, the accused provided the following explanations as to why he lied to Constable Radford about the stop on Shawatlans Road: Q Now, Mr. Khaliq, at some point, you are arrested by the RCMP? A Exactly. Q Okay. And you give a statement to the RCMP? A Exactly.

Q That statement is incomplete. Would you agree with that? A Exactly. Q Can you tell the court why there [is] no mention of the sex? And I should be clear, by you? A "Why not I tell?" Q "Yeah." A When the police arrested me, I did not know how the police system works. Yeah. For a long time, they kept me in the cold room. When the police arrest -- arrest you in Pakistan, they beat you up. I thought the Canadian police tortures -- tortures you like this by keeping you in a cold room. To me, in my mind, it was that I want to get out from here and not to stay in the cold room.

When I was talking to the police, I did not know if I tell the police. She asked me if you sexually assaulted her from front or from the back, regularly or anally. I thought when I had sex, that means sexual assault. I thought if I say I had sex with her, then she will say – she will claim that I had sexually assaulted her. That's why I did not tell her at the time. I did not know at the time that how long they are going to keep me in that police station, how many days they will keep me. In Pakistan, when they arrest you, they -- they keep you for months without producing you before the judge.

In Pakistan, you have to pay your own lawyer. I was thinking, if they are keeping me like this here, then how can I communicate with somebody to get me out from there. That's why I thought that if I not tell this to them, then they will not claim sexual assault against me right away, then they can let me go. When they told me that we will let you talk to a lawyer, I thought they're just joking with me. There's no lawyer available. There's no -- no lawyer on the side. They are just themselves. They're just playing around with me. I was thinking that if I do not give them the statement, they will not let me go.

They will keep me over there. That was what was going on with me. Another thing, to me, it looked like they're playing with me. They were playing with -- they -- I thought they were playing with me that I will not give them a statement, then they will keep me over there. [ 32 ] A few moments later, also during direct examination, the following exchange between counsel and the accused occurred: Q Mr. Khaliq, in fairness though, you -- you denied having sex with her, correct? A Yes, exactly. Q So can you be specific why you denied the sex versus the other information you gave?

A As you know, in Pakistan, if you have sex, it does not matter if you both agreed or not; they will put you into the jail because over there, it is not legal. That was what was going on in my mind at the time. At that time, I was understanding the Pakistani system a little bit. Canadian police system or the Canadian law, I was not understanding about them. The only thing I knew was traffic rules. ISSUES

Issue One: How intoxicated was the complainant? [ 33 ] A number of witnesses testified about the complainant’s level of intoxication on the evening of October 24, 2020, and the morning of October 25, 2020. Some of the witnesses, such as K.M., Constable Munroe, J.M., and the accused at trial, at times described the complainant as intoxicated and disoriented, while at other times described the complainant as being in control of her faculties.

At the other end of the spectrum is the testimony given by the complainant’s roommate S.A., the in-custody statement given by the accused, and the trial evidence of the complainant, describing a complainant who was intoxicated to the point of having loss of physical and mental control, blackouts, and loss of consciousness. The Accused - During the In-Custody Interview [ 34 ] During the first half of his in-custody interview with Constable Radford, the accused gave her the following information: 1. He described all the women at the party as being drunk.

In regard specifically to the complainant, the accused said that she was drinking vodka shots out of bottles, lots of booze, upset, crying, and going crazy. Doing weird stuff. He stated that the complainant was so drunk that when she went to leave, she could not find her own shoes, had no clue where she was going, was staggering and falling down while trying to walk, but was still able to type her address into his mobile telephone for him. 2.

In describing the complainant during the drive away from the party, the accused told Constable Radford that the complainant was so drunk and confused that she could not give him directions to her townhouse. She gave what he called “drunk directions” and the complainant had no clue where she was. He therefore got frustrated and lost: … I was like fuck, fuck, like I was getting a little frustrated, trying to, and she's like “that's my home, that's my home,” like she's calling everything home … 3.

At approximately the same time as the complainant was calling everything “my home,” the accused came upon P.J.’s and he noticed a man sitting in a truck parked right in front of P.J.’s. The accused stopped the van, got out, and walked up to the man. The accused asked the man if he knew where the complainant’s address was and the man told him it was a few blocks away. The accused then asked the man if he could access the man’s Wi-Fi connection to connect to the Internet on his mobile telephone, to which the man agreed.

The accused then entered the Wi-Fi password into his mobile telephone and punched the complainant’s address into his telephone to look up her address, while the complainant went into P.J.'s and asked the clerk inside to call her a taxi. 4. Having the complainant’s address mapped on his telephone, he then tried to explain to the complainant that he could now drive her home and that he would not get lost again. He took her hand and tried to lead her to the van, but she said, “No, no, no, no, I know where I'm going.” She told him that she knew where her home was and that he could leave.

Not wanting to force the complainant to go with him, he followed the complainant into P.J.’s and told her that he could now drop her off at home because the Internet was telling him her home was only three minutes away. The complainant continued to refuse to go with him, so he became concerned that the complainant may be going to do something to him. He told the clerk that the complainant was drunk and he gave the clerk the complainant’s address so that the clerk could make sure the taxi driver drove the complainant home to the proper address.

The clerk confirmed with him that she would ensure the taxi driver got the proper address for the complainant, and so he returned to his van and drove away. Based upon his observations of the complainant’s actions and words, he knew it was time to leave: The way that things look like, alright, so I don't like problem anyways, alright, so that's why I left the s- left the spot and the lady. I tried to her and like the way she was like talking to me, she's like thinking that I'm trying to take her somewhere, and this and that, alright, that's where her attention and I can judge that intention very easily.

I said, like, Shahzad, it's time to go, ha, before the lady gets you into trouble. 5. Because he was unfamiliar with Prince Rupert, he became lost again. As he drove around trying to find his way back to his hotel, he accidently found himself back at P.J.’s. He saw the man with the truck who had given him the Wi-Fi password still out front. He also saw the complainant come out of P.J.’s and sit outside the store. Worried that the man would think that he was going to try to take the complainant, and that somehow it was going to be trouble for him, the accused became panicky.

He then saw the complainant pick up a mobile telephone and start dialling. The accused immediately thought that the complainant was dialling the police: …and the lady pick up the phone and kind of start dialing something, probably she's dialing up the cop or something, whatever, that’s what I was thinking that time. 6. Picking up Wi-Fi from the other man’s telephone, the accused then entered his hotel’s address and left P.J.’s without talking to anyone. He drove around some more, ending up at the McDonald’s restaurant where he had a hamburger.

Eventually he made his way back to his hotel. [ 35 ] After initially describing the events of October 24, 2020, to Constable Radford, the accused stated: So yeah, that's, that's exactly what happened, alright, then I went to work all day. Went to work and then I came back and you guys arrest me. I just took a shower and like I was like ready to go to bed and you guys arrest me. That’s all. [ 36 ] After some more conversation confirming the information the accused had already provided, Constable Radford confronted him with the GPS evidence of the 12-minute stop on Shawatlans Road.

In his explaining to Constable Radford why he neglected to tell her initially of the stop on Shawatlans Road and what occurred during the stop on Shawatlans Road, the accused offered a few additional observations of the complainant’s state of sobriety: 1. The complainant was lost and was unable to assist him in locating her residence. 2. While he was urinating on the side of the road, the complainant got out of the van and started wandering away, stumbling as she walked, saying, “This way’s my home, this way’s my home.” At one point, she fell to the ground.

3. He went after her and brought her back to the van, but it took several minutes because the complainant was walking this way and that way, and he had to struggle to get her back into the van because she did not want to get back into the van. Somehow, he barely managed to get her back into the van. 4. Once he got her back into the van, he tried to get her into the front passenger seat, but she fell to the ground. Due to how drunk she was, he had to pick her up from the ground and he eventually managed to get her into the front seat of the van. She then stated that she had lost her telephone.

Consequently, he had to spend another four minutes locating her telephone for her, which he eventually located at the side of the van. He then gave the telephone back to the complainant and they drove to P.J.’s. [ 37 ] The accused’s description to Constable Radford of the complainant is more than simply calling her drunk. The accused makes the complainant out to be unable to use her own mobile telephone to get directions to her house or call a friend for help, unsteady on her feet, forgetful, clumsy, paranoid, delusional, and irrational.

From the description provided by the accused to Constable Radford, it is difficult to view the complainant’s state of intoxication as anything other than extremely impaired, including an inability to control her own body or think straight at times. The Accused - During the Trial [ 38 ] In his evidence at trial, the accused testified about his interactions with the complainant and the observations he made of the complainant’s behaviour when it came to sobriety: 1. During his direct examination, the accused's counsel asked him about his interactions with the complainant at the party.

The accused stated that he had a “little conversation” with her at a time when she was crying, but the reason she was crying was unknown to him. In the conversation, the complainant spoke about her faith and spoke of topics he did not understand. In addition to the conversation he had with her, he overheard the complainant talking to K.M. about him, during which conversation, the complainant commented on his good looks. 2. When asked to comment on the complainant’s drinking at the party, the accused had the following exchange with his lawyer: A She was drinking, like, shots, drinking shots together.

I saw two or three times. After that, there was some bottles there too. I mean, I think in one of those [there] was some liquor that she drank. After that, she had something like water in those bottles she was drinking, same bottle where she had drank the liquor from. Q Why do you believe there was water in that bottle? A Because I saw her pouring water from the sink in that bottle. Q Okay. What observations did you make about V.W.’s behavior when it -- when it came to sobriety? A After she -- she was drinking? Q Yes. A You mean her behavior? Q Actions, behavior?

A She was -- like, she was saying, "I want to go home." Her mood was a little off, and was saying, "I want to go home." Like, she was picking up her shoes, saying that I want to go home. She was -- she was also stumbling around while she was picking up her shoes. That's all I observed. 3. In describing his leaving the party with the complainant, the accused stated that he wanted the complainant to sit in the front passenger seat of the van, but she refused. He then opened the rear-passenger-side sliding door and she sat in the back.

As they drove away from the party, the complainant started to give him directions on how to get to her townhouse and, while he initially followed her directions, she became quiet and he determined they were lost. After a few turns, and as he was heading out of the city, he began to look for a store to get directions or Wi-Fi. He stopped at one point on a road and asked the complainant if he could use her mobile telephone to try and to map the location of her house. He took her telephone, but service was not available on her telephone as there were no reception signal bars showing on the telephone.

The complainant remained quiet the entire time. 4. Having to urinate, he got out of the van. While he was urinating on the side of the road, the complainant got out of the van and started walking away: When I was peeing, she got out of the vehicle and started walking, was going. I did not realize that when I was peeing. When I finished peeing, I saw she had gone a little distance already. She might have gone 20, 30 or 40 feet, something like that. I saw her, and I asked, "Where are you going?" I asked her, “you don't know where your house is? Come over, and I'll take you home. I will look for a store.

We'll enter your address, and we will drop you off at your home.” Then I walked with her. I said, “okay, let us go.” I grabbed her. From then, I told her “let's go. I will drop you off at your home.” When I brought her back to the vehicle, I was helping her to get back into the vehicle.

When I was helping her to -- to sit back into the vehicle, she asked me, "What are you doing?" Then she said that again, "What are you doing?" I told her, “I'm trying to help you get back into -- inside.” She asked me, "Do you want to have sex?" I was quiet for a few seconds, then I said, "Yes." Then she took her pants off herself. She was bending on the door that was open, and then -- then we had sex. After we had done the sex, I told her, “let's go now,” then we got back into the vehicle and she asked me, "Where did you learn this?" She -- she complimented me that it was fantastic.

She offered me to do it again. I said, "No, let's go now. I want to drop you off at your home." I told her, “let's find a store, then I will drop you off at … home.” Then I started driving from there. 5. Later, also in direct examination, counsel asked the accused to clarify the sex he had with the complainant and the circumstances

surrounding the sex. The accused amplified his response and stated that while he was penetrating the complainant from behind, the complainant was looking at him. He had no concerns that the complainant did not want the sex. The accused also clarified that there was no conversation during the sex. The sex ended abruptly when he ejaculated. He then pulled up his pants and she pulled up her pants. He then told her to sit in the front seat, to which she agreed by getting into the front seat with his help. Once seated in the van, the complainant asked the accused, “Where did you learn this?

It was really fantastic, really strong.” She also told him “it was great.” The accused noted that the complainant then paused for a while, before asking, “Can we do it again?" The accused replied, "No, not now. I will drop you off at your home. Maybe some other time." 6. After the sex, the accused started the engine of the van. As he was preparing to drive away, the complainant told him that she did not have her telephone. The accused got out of the van and looked for the telephone, but he did not see it. He then looked in the van, saw the telephone, recovered it, and gave it to the complainant.

Then he drove away without knowing where they were going as the complainant was still not able to tell him where her townhouse was. They then came upon P.J.’s where the accused stopped the van and was able to get Wi-Fi with the assistance of a man who allowed him to hotspot his telephone’s cellular signal. 7. While the accused was arranging the hotspot for his telephone, the complainant went towards P.J.’s. She went inside. The accused entered the complainant’s address into a map feature in his mobile telephone and then went into P.J.’s to get the complainant, so he could drive her home. He told her, “Let's go.

I will drop you off. I've got your address on my phone” and, “I know where I'm going.” The complainant replied, "No, I know where I am. I will go to my home on my own.” He then confirmed that the clerk had called a taxi for the complainant.

He then told the clerk, “Fine, if you have called a cab for her, I will write down the address.” The accused wrote the address on a piece of paper, gave it to the clerk, and admonished the clerk, “This is her address, make sure she reaches this address.” He then departed without giving the complainant his telephone number or getting her telephone number, despite the suggestion the accused had made on Shawatlans Road that they might have sex again in the future. [ 39 ] The description that the accused gave of the complainant’s state of intoxication and behaviour during his evidence at trial differs greatly from his observations of and interactions with the complainant as told to Constable Radford.

The differences cannot be reconciled. The accused has clearly, and by design, changed his evidence. The accused now paints a picture of a complainant who is intoxicated, but not to the point where she does not have the ability or desire to consent to sexual relations with him. He says that the complainant snapped out of her silence and alcohol-induced strange behaviour while they were stopped on Shawatlans Road, where she calmly and intently asked him if he wanted to have sex with her and then complimented him after the sex had ended.

There was no clarification by either party as to what she meant when she asked if he wanted to have “sex” nor was there any conversation during the act. K.M. [ 40 ] K.M. was the host of the party and she was the person that invited the accused to attend. K.M. testified about the box of wine the complainant brought to the party. She noted that it still sits in her cupboard. She confirmed that the complainant was drinking the same alcoholic drinks the other attendees were consuming, including Pink Whitney - New Amsterdam Vodka, wine, and beer.

She denied drug usage and stated that the complainant had not used marijuana. She did not recall seeing any interactions during the party between the accused and the complainant. [ 41 ] When asked by the prosecutor if she could tell the court about the complainant’s state of intoxication at the time the complainant was leaving the party, she stated: Towards the end of the party she was highly intoxicated and we had encouraged her to drink some water.

And then at some point she wasn't even wearing her jacket or anything and -- and we said, you know, "We need to get you a ride home.” K.M. also confirmed that the complainant was able to communicate effectively and stand without assistance, but that she did not see the complainant or the accused get into the van and drive away. [ 42 ] Importantly, K.M. was concerned that the combination of the terrible Prince Rupert weather that evening and the complainant being “a little bit tipsy at that point,” could mean that the complainant would not make it home despite the short distance to the complainant’s townhouse.

She feared that the complainant could fall into a ditch or get hit by a car. Along with S.H., once the accused announced that he was leaving the party at the same time the complainant was leaving, she insisted that the complainant get a ride home with the accused.

She was not concerned for the complainant’s safety, despite the accused’s earlier forceful kiss on her lips, as she felt that was unrelated to the sober accused driving the intoxicated complainant home. [ 43 ] When asked on cross-examination if she was able to say how much alcohol people were drinking that night, she replied, “No, because they’re adults and they are in charge of themselves.” When subsequently asked if she would be able to say how much alcohol the complainant consumed, she replied, “No.

I know that she was drinking [B.C.’s] beer, that she didn't drink her wine, and she had some -- and she had some of my wine. That's all I know that she -- that I -- that I recall her drinking.” K.M. also emphatically stated that the complainant did not have any shots of vodka. [ 44 ] It was clear from K.M.’s evidence, especially in light of the questions defence counsel asked her and the answers she gave, that she feels a sense of responsibility and shame for introducing the accused to the complainant.

For most of the evening, and certainly at the time the complainant and the accused left the party, K.M. was drunk. In cross-examination, in reply to questions from defence counsel, she admitted that her memory was affected by alcohol consumption, but insisted that she remembered “bits and pieces” correctly. [ 45 ] Accordingly, it is difficult to give much weight to her observations of the complainant’s level of intoxication. Constable Munroe [ 46 ] Constable Munroe was part of the police investigation team. He collected the GPS information about the van the accused had been driving and related exhibits.

He also determined from the van’s GPS that the van had been parked on Shawatlans Road from

approximately 11:44:18 p.m. to approximately 11:58:11 p.m. on October 24, 2020, and then driven to P.J.’s, where it was parked for about 10 minutes until approximately 00:11:15 a.m. on October 25, 2020. [ 47 ] Being familiar with P.J.’s, Constable Munroe attended to P.J.’s where he viewed their surveillance video from the early morning of October 25. There were two screenshots: one of the exterior of the store and one from the interior of the store. Unfortunately, the police did not seize or make a copy of the surveillance video.

Consequently, there has been no disclosure of the video footage viewed by Constable Munroe.

Furthermore, according to Constable Munroe, the video footage was not continuous and would jump, so it did not show the entire time period. [ 48 ] In relation to his observations of the man and woman in the video, which he believed to be the accused and the complainant, Constable Munroe did not make any notations in his police notebook at the time about the complainant being intoxicated, but he did write into his Report to Crown Counsel narrative, which was prepared later that same day, that, “The female appeared to have difficulty walking and maintaining her balance.” [ 49 ] In his testimony, Constable Munroe provided the following observations and opinions to the court: 1.

The van arrived, then the video footage jumped by three minutes, at which point, the accused and the complainant are talking out front of P.J.'s. The complainant had red pants and a ball cap and the accused was wearing all black with a jacket. They appeared to be holding hands at one point. He did not see anything to suggest that the complainant was opposed to the holding of hands, nor any signs of force used by the accused. He is unable to elaborate on the context of the handholding or the discussion between the complainant and the accused. 2.

The complainant entered P.J.’s and the accused remained outside, wandering around. As the complainant made to go inside the store, he noticed that her movements seemed to be impaired. After entering the store, the complainant went to the front counter and exhibited the same impairment of movement, of motor function. 3. Fifty-one seconds after the complainant entered the store, the accused entered the store. The accused remained in the store for just under three minutes, then went back to the van and departed. Five minutes later, after vomiting on the front counter of the store, the complainant exited P.J.’s. 4.

In his experience as a general duty police officer, having dealt with hundreds of intoxicated people, he believed the complainant’s manners to be consistent with somebody that was intoxicated. Constable Munroe based his belief on her delayed motor function, as well as what he observed to be difficulty standing upright without assistance. [ 50 ] The failure of the police to seize or otherwise get a copy of the video is disappointing.

Without the video, and the opportunity for the accused and the complainant to explain what is recorded, we are left with the impressions of a third party who did not know at the time he was making the observations, of their potential relevance to the trial proceedings. It is difficult to know what weight, if any, to give to Constable Munroe’s evidence. At best, I would characterize it as neutral, as his observations are of incomplete images on a video screen without sound.

S.A. [ 51 ] S.A. spoke to the complainant by telephone at approximately 00:15 a.m. on October 25, 2020, when she called him after she had vomited inside P.J.’s. Concerned for the complainant, S.A. drove with J.M. to P.J.’s to get the complainant and bring her home. When he arrived at P.J.’s at approximately 00:30 a.m., he found the complainant sitting in a chair out front of the store with two police officers present. He spoke with her briefly and her response was unintelligible. [ 52 ] The picture S.A. paints is of the complainant being extremely intoxicated by alcohol and perhaps drugs.

He stated that the complainant was incoherent, crying quite a bit, confused, muttering unintelligibly, unable to walk, and covered in puke and dirt. To S.A., it looked as though the complainant had crawled through a ditch on her hands and knees. He had to carry her most of the way to his car, with her slumped against his side and her legs dragging on the ground. He noted that while he was taking the complainant to his car, she was unsure of where she was or even whom S.A. was.

She would go from apologizing to asking where she was. [ 53 ] After S.A. and J.M. managed to get the complainant home, they took her upstairs and got her into the bathroom. S.A. brought some water and towels and, along with J.M. they set her up near the toilet and bathtub. J.M. kept watch over the complainant throughout the night. S.A. noted that the complainant was: … rolling her eyes a lot, very, very extremely, sometimes they would go into the back of her head. She kept asking me where she was and why she felt the way she did.

And from that it would just go between that and crying. [ 54 ] During questioning by the prosecutor, S.A. had the following question and answer exchange: Q And did you hear the puking just for a little bit, was it all night, was it the next morning? A No, this went on for about two and a half hours, maybe a little bit less. She had ended up falling asleep against the toil -- bathtub. Q And then can you tell us about what happens next, maybe take us to when you wake up the next morning or sorry, what did you do next? A We stayed up for maybe an extra hour or so, [J.M.] helped her get to her bed.

And then she went to sleep. I was just mostly concerned about alcohol poisoning or something like that. Q Have you consumed alcohol with [V.W.] before?

A A number of times, yes. Q Have you gotten drunk with [V.W.] before? A Yes. Q More than one occasion? A Yes. Q Had you ever seen [V.W.] in that state of intoxication before? A No. She can actually drink more than me and still be coherent. Q Now I take it you went to bed that night? A Yes. Q Okay, what time did you make it to bed, approximately? A Probably sometime around four in the morning. Q And then can you tell us about the next morning? A We woke up, basically we wanted to get [V.W.’s] side of things.

She was very quiet about it and didn't want to talk, but once she explained her situation to us, I insisted she go to the police and do a rape kit. And I had actually asked for a drug test as well. Q And what were your observations of [V.W.] the next morning? A She was very quiet and didn't want to talk. She kept crying. She -- how would I put it – she said that she was ashamed to go to the police and that it wasn't worth going. So [J.M.] talked with her and then we took her down after speaking with the local detachment. Q Did you happen to get a look at the bathroom the next morning?

A I did, but I also did the night before as well, when she had gone to sleep. Q When you looked at it the night before, could you tell us about the state of the bathroom? A She had puked in the bathtub, on the wall and around the toilet. And there was also blood on the toilet seat and little spatters around the toilet. Q So without getting into the specifics about what [V.W.] told you and [J.M.], is there anything else that you wish to tell the court? I don't have any further questions, I think we've covered everything. A No.

I think the only thing I would add is that my concern was that it had been drugs or something so I had asked for drug tests and I'm under the impression that wasn't done so that would be the only thing I'd add. [ 55 ] S.A.’s evidence is corroborative of the complainant being grossly impaired physically and mentally. Having first-hand knowledge of the complainant and her prior consumption of alcohol, including having seen her drunk on several occasions, his description of her state of intoxication on October 25, 2020, is both compelling and worthy of weight.

It is the best independent evidence we have of the complainant’s state of intoxication. S.A.’s evidence makes it clear that the complainant was incoherent, confused, and unable to function physically or mentally anywhere near her normal levels. It confirms and is in harmony with the complainant’s evidence of her own state of intoxication. Finally, S.A.’s evidence buttresses the conclusion that the description given by the accused of the complainant’s state of intoxication during his in-custody interview with Constable Radford is to be preferred over the description the accused testified to in his trial evidence.

J.M. [ 56 ] J.M. described for the court how in the early morning hours of October 25, 2020, S.A. received a telephone call from an upset complainant. J.M. was able to overhear some of the telephone conversation and then she spoke on the telephone with the complainant while they drove to P.J.’s. J.M. observed that the complainant was in distress, slurring her words, and sounded to be needing help. [ 57 ] Upon arriving at P.J.’s, J.M. noticed police officers. She also observed the complainant covered in vomit, with mud on her pants, feet, and clothing.

Having seen the complainant a few hours earlier before the complainant went to the house party, J.M. immediately noted that the complainant was “pretty intoxicated” and she worried that the complainant “had been drugged.” As S.A. assisted the complainant to the car for the trip home, J.M. took note that the complainant could not stand or walk very well. [ 58 ] On the drive back to the house with the complainant, J.M. noted that the complainant kept slipping in and out of consciousness, often saying a word or two and then losing consciousness again.

When asked a question, the complainant would pop her head up and answer. Her head would go back down. J.M. described the complainant as being “very incoherent” and “not very awake and aware of her surroundings.” [ 59 ] Once they arrived at the house, S.A. assisted the complainant into the house and then S.A. got the complainant up to the bathroom by propping her up with his hands, wrapping his arms around her, and walking slowly. Once the complainant was in the bathroom, J.M. started the process of cleaning the very intoxicated complainant up. The complainant continued vomiting, much of

which did not find its way into the toilet. Once S.A. and J.M. assisted the complainant into her bedroom, they gave her a bucket for vomit. J.M. also cleaned blood off the toilet seat. [ 60 ] It is clear from J.M.’s evidence that the complainant was extremely intoxicated and not in full control of her mind or bodily functions. J.M.’s evidence does not mirror S.A.’s, but is supportive of it. The Complainant [ 61 ] The complainant was candid with the court about her physical condition on the evening of October 24 and the morning of October 25, 2020.

She described her state of intoxication, her moods, and her memory difficulties, including periods of what she sometimes referred to as “unconsciousness” and sometimes as “blackout”. 1. She confirmed that she left home for K.M.’s home and the party around 6:30 p.m. on October 24, 2020. She admitted that at the party she consumed alcohol and vaped a little marijuana. She recalled drinking wine, multiple Alexander Keith beer and Stella Artois beer, and three or four tall double shots of candy cane vodka.

She told of how the night got off to a great start, with her being relaxed, talking about work, laughing, and having a good time. 2. She stated that she was confused as to why K.M. had invited the accused to the party, but not wanting to be rude, she did have some small talk with him. However, for the most part, she ignored him. Contrary to what the accused had testified to, she specifically denied asking K.M. about the accused. 3. Sometime after the accused arrived at the party, the complainant realized that she was intoxicated.

In her words, “I was buzzed, buzzed and looking for laughs.” However, soon after, her mood changed. She became distant and a little bored. She consumed more vodka and wine and then started to feel “very intoxicated.” 4. At this point, the complainant found it hard to walk or even stand. She recalled getting onto the floor in a prone position, and then crawling to the bathroom where she played with K.M.’s kitten while lying on the floor: It was -- it was hard to walk. I think I actually crawled away. I think I actually crawled to the bathroom at one [point] -- one point.

The other ladies were in the washroom talking together. And I think I was playing with the kitten while I was on the ground. And that was just a comfortable place for me to be, so I decided to lie prone in the bathroom, I guess. 5. Shortly thereafter, the complainant started to lose consciousness, to nod off, but not sleeping. She was losing her bodily function, losing muscular function, and could not keep her head up. She decided that she needed to go home: After I realized I needed to go home, I – I believe I spoke out about that and said, “Hey, guys, I’m going to go home”, something like that.

I can't remember exactly what I said word for word. And then they did not want me to go probably due to my level of intoxication, but, of course, I insisted I just lived around the corner and it would be a short walk home, maybe a little bit longer considering, you know, I didn’t walk very well anymore. And eventually they were just insistent that I have this man that was invited to the party drive me home. 6. The complainant then lost consciousness or blacked out. She does not know if her eyes were open or closed when she lost consciousness or blacked out.

She described it in her evidence as follows: When I say “lose consciousness”, I mean it is a period of time where I cannot remember anything. I cannot remember feeling, seeing, smelling. Anything. 7. Her next memory is of approaching the van and getting inside the van on the passenger side. She then had another blackout. 8. Her next memory is of seeing what she believed at the time to be her home while they were driving. She believes that she pointed at her home and said something along the lines of, “This is me” or “This is my stop,” but she is also unsure if she could even speak at that point.

She does recall the van turning away from her home. Then she blacked out again. 9. The complainant’s next memory is of the van stopping. Believing that she was home, she opened up the van door and got out of the van. She remembers that, after her feet made contact with the ground, she was standing on a gravel shoulder. She could see a stretch of road and the woods. She walked a few steps away from the van. At that point, she realized that she was not at home and she assumed that she was on the highway. 10. The accused got out of the van at approximately the same time and walked around the front of the van.

He may have said something. She cannot be sure. The complainant cannot remember if she said anything to him. The complainant was confused and what she described as “wobby” on her feet. She was feeling very weak and was in a mental state where she was unable to speak. She could see clearly, but it was not easy for her to keep her eyes open. She was “woozy.” 11. When they were both on the passenger side of the van, she recalls the accused opening the van’s passenger-side sliding door. Very quickly, the accused pushed the unsteady complainant towards the open doorway.

He bent her into the van’s open doorway, belly down, with her back towards him. He then proceeded to pull down her pants, including her underwear, and forced his penis into her anus and rectum. She cannot recall the accused saying anything. It all just happened very quickly. She knew that what was happening “was wrong,” but her thought process was impaired, what she called “very slow.” She was feeling very weak, unable to defend herself, and tried to figure out what she could do. 12.

At some point while the accused was thrusting himself inside her rectum, the complainant remembered that she had her mobile telephone in her sweater pocket. She reached into her sweater pocket and was able to locate and remove her telephone. She was able to position the phone in front of her face inside the van. She struggled to unlock her telephone and succeeded, with her messages app opening and displaying a list of her recent contacts. She tried to think of whom she could ask for help, but it was difficult with the

accused continuing to thrust himself inside her. She typed what was described to the court as a misspelled “help” into her telephone andhit the send key, resulting in a text being sent to K.M. at 11:44 p.m., while the accused continued penetrating her from behind. 13. The complainant has no memory of the accused putting his penis into her vagina, but she thinks that it would have been difficultfor him to do so, as she had her DivaCup inside her vagina due to having her period. She then blacked out again, with her last memorybeing the accused still penetrating her in the rectum.

She has no memory of putting her telephone away or turning it off. 14. The complainant’s next memory is of seeing the blue and green colours of the P.J.’s corner store. The complainant does notremember how she exited the van at P.J.’s, but she does remember entering the store and going to the front counter. She also recallstelling the clerk something to the effect that she was in trouble and needed help. 15. The accused followed the complainant into P.J.'s and the clerk asked the complainant if he was following her.

The complainantdoes not remember her reply, but she does recall the accused leaving the store before the police arrived. The complainant knows that theclerk was trying to talk to her some more after, but she cannot remember what the clerk was saying. She does remember starting to saysomething to the clerk and then vomiting quite suddenly, mid-sentence, onto the lotto counter.

The complainant also remembers theclerk looking concerned, wanting to call the police, and at some point, phoning the police, although she is uncertain if the telephone callto the police took place before or after she vomited on the lotto counter. After vomiting, the complainant felt panicked. She reached forher mobile telephone and called S.A. 16. Throughout her time at P.J.’s, the complainant felt distant and struggled to stay conscious. She was very tired and very weak,having trouble staying on her feet, but she knew she wanted to go home.

The complainant has a vague memory of two police officersshowing up at P.J.’s, but she cannot recall when S.A. and J.M. arrived. She was not aware of what was happening around her, but sheknew that help was on its way. She has no other memories from P.J.’s. She does not know how she got home. 17. Her next memories are waking up at home. When the complainant woke up, she felt weak and tired, but her body was otherwisefunctioning okay. She also felt dirty, so she took a shower. In the shower, the water stung her anus area and it was very sore.

After theshower, she made her way downstairs and located S.A. and J.M. in the living room. They spoke. Her friends were concerned about herand asked her how she was doing. She vaguely told them the events of the previous evening. S.A. and J.M. asked her if she had beenassaulted and encouraged her to go to the police, which she did.

Conclusion About the Complainant’s State of Intoxication [62] Although there is conflicting evidence as to the complainant’s state of intoxication on October 24 and 25, 2020, there is anoverarching theme: she displayed a combination of signs of extreme intoxication, had difficulty with her motor skills, and appeared tolack the ability to think clearly at times. She also experienced several significant blackouts during which she was unable to know whatwas happening to her and around her. The state of intoxication she was in affected her appearance, speech, and both her mental andphysical faculties.

Some of the symptomology noted by the various witnesses included: a dazed look, not able to control her bodymovements, dishevelled clothing, slurred speech, sometimes loud speech, a rambling train of thought, unusually fast or slow talking,slow responses to questions or comments, repetitive statements, making irrational statements, being distraught, confusion, swaying,staggering, stumbling, unable to sit straight, depressed, sullen, crying, loss of consciousness, lack of focus, difficulty standing up,inability at times to walk, clumsy, difficulty remembering, disoriented, agitated, anxious, and vomiting. [63] Based on the whole of the evidence, I reject the accused’s testimony at trial about the symptomology of intoxication exhibited bythe complainant.

It does not raise a doubt in my mind as to the complainant’s extreme intoxication. I prefer instead the observations ofintoxication told by the accused to Constable Radford during the course of the in-custody interview that corresponds with andcomplements the observations made by S.A., J.M., and Constable Munroe. Their evidence independently verifies the complainant’ssymptomology of extreme intoxication. [64] The symptomology of intoxication described by the complainant is extreme. Regardless of the amount of alcohol and marijuanathat she consumed at the party, she was, to use a colloquial term, wasted.

It is clear from the complainant’s evidence that she wasexperiencing difficulty controlling her motor functions and experiencing significant and prolonged blackouts. She was not able to thinkcoherently. She displayed the type of symptomology of extreme intoxication observed and described for the court by S.A. Thecomplainant’s level of intoxication as described by her is consistent, also, with what J.M., Constable Munroe, and the accused in his in-custody interview with Constable Radford observed.

There is nothing in the evidence to dissuade me from accepting at face value thecomplainant’s commentary as to her state of intoxication. She experienced the symptomology she described, including numerous periodsof blackouts, one of which occurred while the accused had his penis inside her.

Issue Two: Has the BC Prosecution Service proven beyond a reasonable doubt that the complainant was unconscious at the timeof the sexual activity or that the complainant was incapable of consenting to the sexual activity? [65] Incapacity is not a state of “automatism or even one of being unconscious or insensate, although all of those states would result inincapacity:” R. v. Siddiqui, 2004 BCSC 1717, at paragraph 55. There are also varying degrees of cognition that can result in a lack ofcapacity to consent, including the complainant being intoxicated to the point of legal incapability: R. v.

Esau, (SCC),[1997] 2 SCR 777, at paragraph 25. [66] The BC Prosecution Service has argued that the accused tailored his testimony at trial to downplay the complainant’s level ofdrunkenness because he now realizes her level of intoxication was so severe that she was not able to consent. However, the BCProsecution Service elected not to call expert evidence with respect to the effect of the complainant’s extreme intoxication on her abilityto consent. Likewise, the BC Prosecution Service did not call expert evidence to support the legal argument that: (

a) the complainant’s blackouts are the same as being unconscious per s. 273.1(2)(a.1) of the Criminal Code; or (

b) the complainant was incapable of consenting to sexual intercourse with the accused for any reason other than being unconscious.

[67] In my view, without expert evidence, the complainant’s memory loss during her blackouts is only evidence that she cannot testifyas to the details of what happened while she was experiencing the blackout. It is apparent to me that the complainant was extremelyintoxicated by 11:30 p.m. on October 24, 2020.

She remained extremely intoxicated for the remainder of the evening and into the earlymorning hours of October 25, 2020. [68] I have considered whether the complainant’s extreme intoxication and memory loss is circumstantial evidence which, whenconsidered with the other evidence I have set out, would permit me to draw inferences about whether or not the complainant did or didnot consent or whether she was not capable of consenting to the accused putting his penis inside her rectum and vagina. She has anindependent memory, which I find to be reliable and true, of the accused’s penis in her rectum.

The evidence of the DNA tests, herdiscomfort in sitting, and the pain and irritation she felt the next morning when she showered, all support the complainant’s memory ofthe event. It is also more likely than not, given the complainant’s use of a DivaCup and the manner in which she was penetrated anallyby the accused, that the blood located by J.M. and S.A. on the toilet seat was from a wound to the complainant’s anus or rectum.

Nevertheless, since the doctor did not make mention of it during the sexual assault kit examination, I am unable to find beyond areasonable doubt that the blood was from her anus or rectum. [69] At the time the van stopped on Shawatlans Road and the accused made the decision to insert his penis inside her body, thecomplainant’s mind was operating such as to allow her to know what was happening to her, but she was incapable of understanding thatshe had the choice to engage or refuse to engage in the sexual activity. She felt trapped in her own body. The accused was penetratingher anally.

She did not want his penis inside her. She knew that what was happening was wrong, but her thought process was impaired,what she called “very slow.” She was feeling very weak and felt unable to defend herself. [70] I accept the complainant’s evidence that she has a distinct and real memory that she did not (

i) ask the accused if he would like to have sex; or (ii) agree to have sex with the accused. [71] I do so because there is no evidence whatsoever, other than the accused’s trial testimony which I reject as a fabrication, that: (

i) the complainant asked the accused if he would like to have sex; (ii) the complainant made a poor decision in agreeing to have sex with the accused; (iii) the complainant had a loss of inhibition that made her want to have sex with the accused; or (iv) the complainant lost her self-control due to the alcohol and marijuana she had consumed, such that she thereafter decided to have sexwith the accused. [72] When I consider the entire body of evidence, I can reach only one conclusion: on the evening of October 24, 2020, while theaccused and the complainant were stopped on the side of Shawatlans Road, the complainant was incapable of consenting to sexualactivity: R. v.

J.A., 2011 SCC 28 and R. v. G.F., 2021 SCC 20. The complainant was incapable of consenting due to her extremeintoxication and because she experienced a blackout while the accused was penetrating her. As set out at paragraph 56 of G.F.: …Because subjective consent requires a “voluntary agreement”, the complainant must be capable of understanding that they have achoice of whether or not to engage in the sexual activity in question: Criminal Code, s. 273.1(1). At the very least, a voluntary agreementwould require that the complainant exercise a choice to engage in the sexual activity in question.

In this narrow sense, in order tovoluntarily agree to the sexual activity in question, the complainant must understand that saying “No” is an option. In J.A., this Courtheld that consent requires that the complainant have “an operating mind” at the time of the touching, capable of evaluating each sexualact and choosing whether or not to consent to it: paras. 36 and 43-44. Thus, an unconscious complainant could not providecontemporaneous consent. It follows that where the complainant is incapable of understanding that they have this choice to engage orrefuse to engage, they are incapable of consenting.

Accordingly, a complainant who is unable to say no, or who believes they have nochoice in the matter, is not capable of formulating subjective consent: see R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, atpara. 60, citing R. v. Daigle (1997), (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.), aff’d (SCC),[1998] 1 S.C.R. 1220. [73] The BC Prosecution Service has proven beyond a reasonable doubt that the complainant was incapable of consenting to anysexual activity involving the accused on the late evening of October 24, 2020. Issue Three: Did the complainant consent to having sex with the accused?

If yes, what exactly did she consent to? [74] Consent is determined subjectively by reference to the complainant’s internal state of mind toward the sexual activity at the timeit occurs: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at paragraph 25; J.A. at paragraph 34; R. v. Barton, 2019 SCC33, at paragraph 88. Consent must be ongoing. It can be withdrawn at any time. It needs to be informed and contextual. Consentrequires the knowing and voluntary agreement of the complainant to engage in each act of a sexual nature with a particular partner: R. vShrivastava, 2018 ABQB 998, at paras 56 to 60.

Force vitiates consent and acquiescence is not consent. Accordingly, silence, passivity,or ambiguous conduct do not equate to consent. [75] If an accused is relying upon the defence of mistaken belief in communicated consent, they need to take reasonable steps toconfirm the consent. More so in a situation like the present case where the accused and the complainant were unfamiliar with oneanother, thereby raising the risk of miscommunication. No reasonable steps to confirm consent means no defence.

As set out atparagraphs 108 and 109 of Barton: [108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will beelevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those

involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes.

At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. [109] Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity.

Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do. [ 76 ] The accused took no steps, never mind reasonable ones, to confirm what sexual activity was agreeable to the complainant. [ 77 ] On the morning of October 25, 2020, after S.A. and J.M. had gotten the complainant into her bedroom and J.M. had gotten some sleep, J.M. and S.A. had a conversation with the complainant who was feeling “pretty rough.” The complainant still could not walk very well and could barely sit. The complainant seemed upset.

The complainant disclosed that she had been taken out onto the highway and been raped. J.M. spoke to the complainant and, with S.A., made sure that the complainant was okay and urged her to go to Emergency at the hospital and to get the RCMP involved. [ 78 ] During cross-examination, S.A. had the following exchange with defence counsel concerning his interaction with the complainant on the morning of October 25, 2020: Q Now as I understand it, [V.W.] disclosed to you that -- that the individual who had given her the ride home or ride had sexually assaulted her, is that correct? A As I understand it, yes.

Q Can you be specific on what she said regarding that? A She said she wanted to go home and gave the address. She ended up on the highway by the mountain where they had sex and then she ended up at PJ's. Q So she suggested they'd had sex? That's her words? A I do not recall her exact words. Q Well I'm going to ask you to try -- try to. A I believe she said that she had been raped or assaulted. Q But you would agree "having sex" is not the general way one would – A No. Q -- describe being raped, you would agree with that? A Absolutely. Q Did she say what kinds of intercourse and/or sexual activity occurred?

A She said that it had been in her butt and that she could not recall if they had ejaculated in her or not. Q Okay. And do you remember any other details about the sexual aspect of the encounter? A She just described it as being beaten up. Q Sorry? A She just described it as being -- I don't like the words -- she described it as being slightly violent. Q Okay, did she describe the positioning of the parties? Do you know what I -- do you understand what – A Not – Q -- I mean by that? A Yes. Q Okay A Not that I recall. Q How did she describe it as slightly violent?

A She said that it was forced on her and she didn't want it. Q Okay

A And that her ass was bleeding and wouldn't be able to sit for a while. [ 79 ] In giving her evidence, the complainant made it clear that at no time did she ask the accused for sex or want to have any type of sex with him. Not vaginal intercourse. Not anal intercourse. She completely refuted the suggestion that she did or said anything that would make the accused think that she wanted to have sex with him.

She also called it “extremely unlikely” that while she was nodding off, unconscious, or experiencing a blackout, that she would have done or said anything to the accused to indicate that she wanted to have vaginal or anal intercourse with him. [ 80 ] The complainant denied that she spoke to K.M. about the accused during the party.

There is no evidence, other than the accused's self-serving statement that at the party he overheard the complainant and K.M. discussing his good looks, that the complainant told K.M. that the accused was good looking. [ 81 ] Given the totality of the admissible evidence, I find the accused’s description of how he was asked if he wanted to have sex by the complainant to be simply ludicrous. I further find the accused’s denial that he put his penis inside the complainant’s rectum to be unbelievable.

Not only does the complainant have a vivid memory of the event, but also the accused’s DNA was in the complainant’s rectum. [ 82 ] As per G.F. at paragraphs 63 and 64 : [63] Second, the continuous nature of consent provides a further reason why the respondents’ argument must fail at a practical level. Consent must be specifically directed to each sexual act: J.A. , at para. 34 ; Criminal Code , s. 273.1(2) (e). There is no reason why the entire course of sexual activity must be blanketed with a single finding of consent, non-consent, or incapacity. This case provides an example.

On the trial judge’s findings, the sexual activity began when the complainant was passed out — evidence of incapacity. As it continued, the complainant struggled and told the respondents to stop — evidence that she expressly refused to engage in the sexual activity.

When those struggles and demands were ignored by the respondents, the complainant, in her confused and intoxicated state, acquiesced, believing she had no choice in the matter — again, evidence of incapacity. [64] Accordingly, it was open to the trial judge to find both that the complainant was incapable of consenting and did not agree to the sexual activity in question. In the context of this case, the trial judge did not err in addressing these issues together in his reasons. Both findings went to a lack of subjective consent, thus establishing the final element of the actus reus .

They did not need to be reconciled with each other, nor approached in any particular order. [ 83 ] Even if the complainant had asked the accused, "Do you want to have sex?" the fact the accused and the complainant were strangers to each other and she was extremely intoxicated at the time, would require a reasonable person in the accused’s position to clearly ascertain exactly what was meant by "Do you want to have sex?" before they put their penis into the other person’s vagina or rectum. [ 84 ] For the reasons set out above, the BC Prosecution Service has proven beyond a reasonable doubt that the complainant did not consent to any sexual activity with the accused.

Issue Four: Did the accused put his penis into the complainant’s rectum? [ 85 ] The complainant attended to the Prince Rupert Hospital on the evening of October 25, 2020. She attended because she knew that the accused had put his penis into her rectum. She did not know if he also penetrated her in the vagina. A sexual assault kit was prepared for the examination of the complainant. Dr. Van Der Poll was the attending physician and he performed the examination. Nurse Nequinto assisted him. [ 86 ] On the Sexual Assault History form, Dr.

Van Der Poll noted that the complainant told him “yes” to anal penetration, “unsure” for vaginal penetration, “unknown” if ejaculation occurred, and “yes” for menstruating at the time of assault. He also noted that the complainant had bruising on her left elbow and the outside of her right upper leg, as well as a superficial abrasion on her left forearm. Finally, he also noted that the complainant had showered, urinated, and defecated between the time of the assault and the time of the examination. [ 87 ] On the Forensic Evidence Record form, Dr.

Van Der Poll recorded how he took a variety of bodily samples from the complainant’s body. Included in the samples he took were “External Genitalia Samples”, “Vaginal Samples”, “Anal Samples”, “Rec

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