R. v. Guapo, 2022 BCPC 263

Citation: R. v. Guapo 2022 BCPC 263 Date: 20221108 File No: 4208-1-K Registry: Pemberton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. FILIPE JOSE ANTUNES GUAPO BAN ON PUBLICATION -

SECTION 486.4(1) of the Criminal Code of Canada ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: A. Lee Appearing in person: F. Guapo Cross-examining Counsel Appointed Under

Section 486.3(2): R. Enright Place of Hearing: North Vancouver , B.C. Date of Hearing: June 14-15, October 3-4, 2022 Date of Judgment: November 8, 2022

INTRODUCTION [ 1 ] Filipe Jose Antunes Guapo is charged with two counts of sexual assault contrary to s. 271 of the Criminal Code of Canada . The first count alleges an offence which occurred between August 15 and September 15, 2018. The second count alleges ongoing offences occurring between January 1, 2019 and March 31, 2020. The complainant, J.D. was an intimate partner. [ 2 ] The Information was sworn September 11, 2020. The trial was held on June 14, 15 and October 3 and 4 of 2022. Mr.

Guapo was not represented although counsel was appointed under s. 486.3 to cross-examine the Complainant. [ 3 ] The Crown called the Complainant and a friend of the Complainant. Mr. Guapo elected not to call evidence. EVIDENCE OF THE COMPLAINANT [ 4 ] J.D. is now 34. She testified that she moved to Pemberton in early 2018 into a mobile home in a trailer park next to where the Accused and his parents lived.

Over the spring and summer she saw him from time to time coming and going to their respective mobile homes but did not engage with him socially other than to acknowledge him in passing. [ 5 ] J.D. was new to Pemberton. She was employed and her only acquaintances were those she had made at work. In September of 2018 she attended a local bar with a female friend. They had a couple of drinks before going to the bar and continued to drink and socialize at the bar. She estimated she had five to six drinks over the course of the evening.

She was not drunk but neither was she sober enough to drive her car home. [ 6 ] The Accused was also at the bar with his acquaintances. Towards the end of the evening J.D. and her friend were interacting with the Accused and the people he was with. J.D. described Mr. Guapo as drunk but coherent. [ 7 ] The Accused offered to drive her car home. He told her he was sober enough to safely do so. As they approached the trailer park, the Accused turned into a field across the road and drove up to a recreational vehicle (“RV”). He told J.D. it was his and he wanted to show it to her.

It was a short walk away from her own trailer. [ 8 ] J.D. said it was clear to her that he wanted to hang out with her and she saw this as a reason for him to be able to do so. She said she had no reason to think he “was a bad guy.” [ 9 ] After looking around the trailer he suggested they could sleep there in the double bed in the main bedroom. She was nervous about it but agreed to do so. J.D. conceded her decision to stay there was a failure in judgment. [ 10 ] There had not been any sexual touching prior to getting into the bed.

They got into the bed in their clothes with J.D. on the side of the bed next to the wall. She turned on her side to face the wall intending to go to sleep. [ 11 ] Mr. Guapo began to touch her over her clothes on her breasts, buttocks and legs. She repeatedly pushed his hands away and told him “No. That is not going to happen.” She concluded from his actions that he wished to engage in sexual activity. The Accused stopped and then resumed the same kind of touching. She again removed his hands and told him “No.” [ 12 ] J.D. was tired and wanted to sleep.

She assumed the Accused would eventually stop touching her in a sexual manner and fall asleep. However, he persisted and began to remove her clothing. She continued to attempt to push his hands away and tell him “No. Please stop.” and to resist his efforts to remove her clothing. As these events were unfolding he said “Come on. It will just take a minute.” [ 13 ] Once he had removed her pants and underwear he removed his own clothing and then lay down behind J.D. who was still facing the wall. He put his penis in her vagina. She was able to wiggle away and he persisted in again putting his penis in her vagina.

She continued to say “No. Please stop.” She believed his efforts went on for several hours. J.D. then gave up trying to resist him. He did not use a condom and she did not know if he ejaculated. [ 14 ] In the morning, some neighbours came by the RV to deal with a farm animal and after they left J.D. got dressed and went home. As she left, Mr. Guapo said “This changes everything.” She did not understand the meaning of that comment. [ 15 ] J.D. testified to a state of mind during this incident which was what I will describe as ambivalent. She did not want to engage in sexual activity with Mr. Guapo.

However, she also thought she might be “prudish” and that “girls do this all the time” referring to engaging in casual sexual activity. She did not have the confidence to get up and leave. She thought she would feel foolish and he would not like her if she left. She thought it was what was expected of her and so she “had to give in.” [ 16 ] J.D. and Mr. Guapo texted and saw each other over the next few weeks although there was no reference made to the events in the RV. They then began having contact when socializing with mutual friends. In December 2018 they began to meet one on one for dinner.

J.D. rationalized the events in the trailer as “just how guys are.” She also said she had not had a lot of experience with men. [ 17 ] J.D. said that Mr. Guapo did not behave in a sexualized manner during the time they spent together over the winter of 2018-2019. However, he was apparently interested in her romantically and frequently complimented her and gave her small gifts.

J.D. told him she was not interested in a relationship. [ 18 ] J.D.’s evidence was vague and lacking in detail about any unwanted sexual activity between late 2018 and July 1, 2019. [ 19 ] On July 1 st of 2019 they agreed to a committed dating relationship. J.D. testified that thereafter Mr. Guapo would touch her in a sexualized manner at times when she did not want to engage in sexual activity and told him so. He persisted in touching her sexually

despite her physically resisting him by pushing his hands or his body away while telling him “No” and to stop. He would eventually remove her clothes and engage in intercourse with her despite her clearly communicated lack of consent. She described that the intercourse often happened while she was facing away from him because she would have turned away in her attempts to resist him. She said he was always very apologetic the next day. [ 20 ] The Accused also attempted anal penetration and J.D. said that whenever he did so she would immediately say no and push him away. Mr.

Guapo would repeatedly attempt to penetrate her anus in between acts of penetration of her vagina. J.D. said that whenever he would attempt anal penetration she would withdraw her consent to vaginal intercourse but he would continue to engage in vaginal intercourse. [ 21 ] J.D. described the Accused as being “relentless” once he determined he wanted to engage in sexual activity. He became more aggressive as time passed and she began to be fearful of what he might do if she continued to resist him. She understood him to be physically strong.

As a result she would “give up” resisting his sexualized activity and he would engage in intercourse with her. She said she was often in tears by the point when he engaged in intercourse. [ 22 ] In direct examination she estimated that he engaged in sexual intercourse with her without her consent “a minimum of six times” during this period. In cross-examination she said it was four times with the other times occurring prior to July 1. [ 23 ] The Accused told her she owed it to him to have sex when he wanted to as she was his girlfriend. She felt she needed to be more open to what he wanted.

She had “bad confidence issues” and felt helpless and that she had no choice. [ 24 ] Mr. Guapo was an otherwise thoughtful and kind partner who appeared to accept her for who she was and treated her very well. She enjoyed his company and enjoyed spending time with his family and his friends. In cross-examination she said that “it was all so perfect” she overlooked the sexual assaults. [ 25 ] There was one incident of concern in the summer of 2020 when they took a trip to Long Beach. For reasons that were not clear to J.D., the Accused became angry with her and acted unreasonably for a couple of days.

He drank heavily during this time. His behaviour then returned to being kind and pleasant. [ 26 ] In October of 2019 they moved into a two bedroom trailer together in Pemberton. J.D. testified that immediately after they began to cohabit the behaviour of the Accused changed dramatically. His conduct overall was similar to what she had experienced over the two days on their trip in the summer. [ 27 ] The Accused began to drink on a daily basis and often to excess. J.D. believes he had hidden his drinking from her while they were dating. [ 28 ] Mr. Guapo became more and more controlling and jealous.

He would accuse her of lying and believed that when she used her phone it was to contact other men. He followed her when she was out in the community. [ 29 ] He engaged in emotional abuse by telling her she was fat, ugly and disgusting. He no longer complimented her or was considerate of her. [ 30 ] He was capricious with respect to his preferences regarding housekeeping and would act out by, for example, throwing clean folded laundry on the floor.

She experienced him becoming enraged over trivial matters and she felt he found fault with everything she did. [ 31 ] The Accused continued to engage in the same pattern of unwanted sexual activity as had occurred while they were dating and during the incident in the RV. She estimated that he engaged in sexual intercourse with her despite her clearly communicated lack of consent, both verbally and by conduct, on at least 12 occasions.

She testified that she experienced pain during the unwanted sexual activity due to the force of the intercourse, her lack of arousal fluid and from the Accused forcefully grasping her arms and wrists. [ 32 ] J.D. made clear that there were many instances of consensual sexual activity during the time they were dating and after they moved in together. The instances of consensual sexual activity diminished after the Accused became angry, unreasonable and emotionally abusive. [ 33 ] J.D. recalled one specific occasion in the spring of 2020 when he approached her while she was doing the dishes.

He began to touch her breasts, buttocks and crotch. She told him “No” and to stop. He took hold of her and walked her to the bedroom. He then removed her pants. By this point she was crying, was “hysterical” and “hyperventilating”. He engaged in intercourse despite her clearly expressed lack of consent and obvious emotional distress. He did not acknowledge her distress. She described this as one of the last times they engaged in sexual activity. [ 34 ] J.D. said that once they were living together she began to feel trapped, alone, helpless and defeated.

His anger caused her to be fearful of him and she behaved in a manner that would avoid any confrontation. [ 35 ] J.D. disclosed the abuse to her friend J.M. in early March of 2020. In mid-March she visited J.M. and made further disclosures. J.M. contacted the Howe Sound Women’s Centre on behalf of J.D. J.D. later contacted the Centre herself. [ 36 ] She told Mr. Guapo that she had disclosed his abuse to her friend and he responded by disparaging J.M.

When J.D. confronted him about what she considered to be sexual assaults committed by him, he laughed and told her it was not sexual assault. [ 37 ] In July of 2020 J.D. left and went to a safe house. [ 38 ] J.D. said that when she gave her statement to the police everything was a blur. She later reviewed texts and the time frame which allowed her to clarify the timing of the events.

[ 39 ] J.M. testified for the Crown. She is a long time and close friend of J.D. She corroborated J.D.’s testimony about the disclosure of the abuse in her relationship when she visited J.M. at her home in mid-March. In late May or early June, J.M. contacted the Howe Sound Women’s Centre on J.D.’s behalf. THE APPLICABLE LAW [ 40 ] In R. v. Bertacco, 2020 BCSC 1275 at paras. 54 to 61 , the Court provided a helpful

summary of the leading cases with respect to the law of sexual assault which I have considered. In R. v. Stewart, 2021 BCPC 111 at paras. 16 to 32 , the Court set out a very succinct

summary as follows: Offence of Sexual Assault: s. 265 , s. 273.1 and s. 273.2 of the Criminal Code [16] The Criminal Code of Canada sets out the applicable legal principles on the law of assault, and sexual assault, in s. 265, s. 273.1 and s. 273.2 of the Code . [17] Sexual assault is an assault, as defined under s. 265 of the Criminal Code , which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. [18] Consent for the purposes of the law of sexual assault is set out in s. 273.1 and s. 273.2 of the Criminal Code . Consent is the voluntary agreement of the complainant to engage in the sexual activity in question. Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271 , 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [19]

Section 273.2 provides as follows: 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused's belief arose from the accused's . . . (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting, or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. Actus Reus and Mens Rea [20] A person commits sexual assault if they touch another person in a sexual way without their consent. In R. v. Ewanchuk , 1999 SCR 330 and R. v. Barton , 2019 SCC 33 , the Supreme Court of Canada has given guidance to trial judges on the

interpretation and application of the sexual assault statutory provisions. [21] The actus reus of sexual assault comprises of proof of three elements: (1) physical contact or touching; (2) the sexual nature of the contact; and (3) the absence of consent.

[22] Consent, for the purpose of the actus reus, relates to the presence or absence of agreement to the touching in the mind of theperson touched. Whether or not the complainant subjectively consented in their mind to the sexual activity, at the time it occurred, is aquestion of fact to be determined from the complainant’s evidence and from other evidence of the “complainant’s words or actions,before and during the incident”.

Whether the complainant’s words or actions are consistent with their claim of non-consent is a questionof credibility, to be weighed in light of all the evidence: Ewanchuk, at paras. 29-30. [23] Affirmatively communicated consent must be given for each and every sexual act: Barton, at paras. 90-94.

As noted by theSupreme Court of Canada in R v Goldfinch, 2019 SCC 38, at para. 44: “Today, not only does no mean no, but only yes means yes.Nothing less than positive affirmation is required.” This statement confirms that there is no such thing as implied consent under the lawof sexual assault. [24] If the complainant testifies that she did not consent, and that evidence is accepted, then there was no consent. The Crown hasdischarged its burden to prove the absence of consent as an element of the actus reus.

The complainant need not have expressed that lackof consent, or revocation of consent, at the time when the sexual activity took place. [25] The mens rea of the offence comprises of proof that: (1) accused intended to touch the complainant; and (2) the accused knew the complainant was not consenting, or was reckless of or wilfully blind to the lack of consent on the part of thecomplainant. [26] For the purposes of the mens rea, and specifically for the defence of honest but mistaken belief in communicated consent, thefocus shifts to the state of mind of the accused.

In this context, “consent” means that the complainant has affirmatively communicated,by words or conduct, her agreement to engage in the sexual activity in question with the accused.

Honest but Mistaken Belief in Communicated Consent [27] Where an accused raises an honest but mistaken belief in communicated consent, they are asserting a claim of moral innocencebased on their belief that the complainant was consenting to the sexual touching: Ewanchuk, at para. 46. [28] A bare assertion of belief that the complainant was consenting is not sufficient without some evidence to support it. [29] There are important limitations to this defence: (

a) one cannot rely on a belief in implied consent; (

b) a belief that “silence, passivity or ambiguous conduct” constitutes consent is no defence; (

c) a belief that the complainant in their own mind wanted the accused to touch them but did not express that desire is not a defence:Ewanchuk, at para. 46; Barton at para. 98. [30] As noted in Barton, s. 273.2(

b) of the Criminal Code bars an accused from advancing an honest but mistaken belief incommunicated consent where the accused did not take reasonable steps in the circumstances known to him at the time to ascertain thatthe complainant was consenting: 104

Section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonablesteps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and thereasonableness of those steps must be assessed in light of the circumstances known to the accused at the time....Notably, however, s.273.2(

b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief inlegal age imposed under s. 150.1(4) of the Code…[citations omitted]. [31] In

summary, in considering this defence, as per R. v. Barton at paras. 121-123:

(1) The Crown bears the burden to show beyond a reasonable doubt that the accused failed to take any steps, or any reasonable stepsin the circumstances known to him at the time, to ascertain that the complainant was consenting.

(2) Where the Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, the trial judge mustgo on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest butmistaken belief in communicated consent.

(3) If the Crown fails to disprove the defence of honest but mistaken belief in communicated consent beyond a reasonable doubt, theaccused is entitled to an acquittal. [32] The Crown bears the ultimate burden on the issue of mens rea to show beyond a reasonable doubt that the accused knew thecomplainant was not consenting, or he was reckless of or wilfully blind to the complainant’s lack of consent. [41] The accused is presumed innocent and the onus of proof remains on the Crown to prove guilt beyond a reasonable doubt. Areasonable doubt can arise on both the evidence and the absence of evidence.

This onus falls much closer to absolute certainty than tothe balance of probabilities. Something less than absolute certainty is required and something more than probable guilt is required: R. v.Lifchus, (SCC), [1997] 3 SCR. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 SCR 144. [42] In Regina v. C.H.W. (BC CA), our Court of Appeal considered the seminal case of R. v. W.(D.), (SCC), [1991] 1 SCR 742 regarding instructions to triers of fact with respect to reasonable doubt and added a fourth consideration:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. ... [Fourthly,] [i]f, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [43] In R. v. Mann, 2021 ONCA 103 at para. 15, the Court set out a

summary of some of the sources of reasonable doubt: First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arisefrom the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, atpara. 36. Moreover, an inference need not arise from "proven facts", which is "a standard that is never applicable to an accused": R. v. Robert(2000), (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.).

This is because a reference to "proven facts" suggestsan obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to betrue to any standard of proof, has not been rejected. It is also incorrect to link a reasonable doubt to a "conclusion" drawn from the facts. An acquittal need not be based on a conclusionabout innocence but can rest on an inability to conclude guilt. It is also an error to suggest that an exculpatory inference must be "a much stronger conclusion" than a speculation or guess.

Thatlanguage imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence needmerely raise a reasonable doubt: Villaroman, at para. 20. [44] In R. v. Bachman, 2013 BCSC 1028, the Court addressed the assessment of reasonable doubt in case such as this: [78] Sympathy for the complainant cannot be a basis for establishing guilt. Reasonable doubt must connect logically to the evidence,based on reason and on common sense. A reasonable doubt cannot be frivolous or unduly speculative.

The burden of proof the Crowncarries applies to the evidence as a whole, not to individual items of evidence. [79] In the range of levels of doubt that lie between probable guilt and absolute certainty of guilt, reasonable doubt lies much closer toabsolute certainty of guilt than it does to probable guilt. Therefore, if I were to conclude after considering all the evidence in its totalityonly that Mr. Bachman is more likely than not guilty of these charges, I must find him not guilty. [80] I said at the start that Ms.

B.'s credibility as a witness, especially the reliability of her testimony, is a central issue in this case.Deciding upon a witness's credibility involves more than coming to a decision on whether a witness is trying to be honest and notdeliberately deceitful. Even if satisfied that a witness is doing their best to be honest, the factual content of their evidence has to be testedto see if it is reliable.

Once satisfied that the witness is trying to be truthful and that their account is reliable, a judge can safely conclude that their evidence is credible. [McWilliams' Canadian Criminal Evidence, vol. 2, 4th ed., loose-leaf (updated June 2012), (Aurora:Canada Law Book) at 27:10.] [81] As Justice Estey explained in R. v. White, (SCC), [1947] S.C.R. 268, credibility is a question of fact; it is notbased on a set of rules. Justice Estey said, slightly altered for neutral language: ...It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.

The generalintegrity and intelligence of the witness, [their] powers to observe, [their] capacity to remember and [their] accuracy in statement areimportant. It is also important to determine whether [they] are honestly endeavouring to tell the truth, whether [they] are sincere andfrank or whether [they] are biased, reticent and evasive. All these questions and others must be answered from the observation of thewitness's general conduct and demeanour in determining the question of credibility. [82] A witness's demeanour is relevant, but credibility does not rest on demeanour alone.

Nor does a witness's expressions ofconfidence in their belief about their testimony strengthen it, especially when its reliability is questionable. The totality of all theevidence must be examined in a cumulative way to determine if a witness's evidence is reliable and whether there is a reasonable doubt,notwithstanding the apparent credibility of the victim. An assessment of credibility turns on a broader assessment of the witness'stestimony, whether it is consistent, whether it makes sense or is inherently hard to credit and how it ties in to all the evidence in the case. [Emphasis added.] [45] In R. v.

M.G., (ON CA), the Ontario Court of Appeal discussed the need to consider the internal and externalinconsistencies in the evidence of a witness: [27] Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between whatthe witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons.

But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [28] The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the

British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260 : Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

CREDIBILITY AND RELIABILITY OF THE COMPLAINANT [ 46 ] I begin with the observation that there is no presumption a complainant’s evidence is true or credible. [ 47 ] J.D. presented as an intelligent, reasonable and responsible person who was sincere and forthright in her testimony. [ 48 ] J.D. does not have any mental health issues, health issues or substance misuse issues which could have impacted her reliability.

I find she was able to perceive the events, remember them accurately and communicate those events clearly to the court. [ 49 ] She remained composed throughout her testimony although at times she became somewhat emotional when recounting some of the abuse. [ 50 ] She did not demonstrate any hostility or bias toward the Accused but rather was balanced and fair in her account of her relationship with Mr.

Guapo and the incidents of non-consensual sexual activity. [ 51 ] J.D. was not contradicted on cross-examination and she was not impeached with prior inconsistent statements. [ 52 ] There was no apparent exaggeration or embellishment of her evidence which would have served to detract from her credibility. [ 53 ] At times J.D. had some difficulty expressing herself clearly, however, this does not detract from the overall credibility or reliability of her evidence. She testified to an ongoing pattern of similar conduct which made it difficult to distinguish specific incidents.

She freely conceded that she was unable to specifically account for all but a couple of the incidents of non-consensual sexual activity. [ 54 ] J.D. gave evidence about the timing of events which was in error. However, the error arose from the Crown leading her on incorrect dates. [ 55 ] J.D.’s evidence was plausible. It was internally consistent and in accord with the preponderance of probability. The course of the relationship she described is consistent, in my experience, with the unfolding of an abusive relationship.

In other words, her narrative was consistent with the probabilities which surrounded the existing conditions. [ 56 ] J.D. was emotionally vulnerable and disclosed her mental health issues to the Accused. She described a course of what I find to have been manipulation which resulted in her believing Mr. Guapo was, and would continue to be, a kind and loving partner.

However, once she was committed to him he abandoned this pretence first with regard to respecting her sexual boundaries and then, once they began to cohabit, entirely. [ 57 ] She was cross-examined about why she would choose to date someone who had engaged in non-consensual sexual activity with her and why she would continue a relationship and move in with someone who was engaging in ongoing non-consensual sexual activity.

It was suggested that this was because it was in fact consensual. [ 58 ] J.D. was able to articulate how her personality traits and beliefs in conjunction with her lack of experience in relationships contributed to her decisions. She was also able to express how meaningful Mr. Guapo’s attention and apparent support were to her. [ 59 ] It was also suggested that she made her complaint to the police after being coached by the staff at the Howe Sound Women’s Centre into believing she had been sexually assaulted.

J.D. was clear that the staff did not direct her in any way but rather provided her with information only. HONEST BUT MISTAKEN BELIEF IN CONSENT [ 60 ] There was a suggestion during cross-examination that the complainant had consented to all sexual activity with the Accused. The basis for this suggestion was based on the myth that she would not have continued to have contact or a relationship with the Accused if he had in fact been continuing to engage in sexual activity without her consent. J.D. did not agree with any of the propositions put to her in this regard.

There is only a bare assertion the Complainant was consenting and no evidence to support it. ANALYSIS AND CONCLUSION [ 61 ] The case for the Crown relies entirely on the evidence of J.D. This is not a matter in which there are conflicting testimonial accounts which need to be considered in the context of the approach to credibility assessments as set out in R. v. W.D .

I must consider whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [ 62 ] I find J.D. to have been a trustworthy and credible witness whose evidence was reliable. There is nothing in the evidence which serves to discredit her testimony.

[ 63 ] I accept that the Accused repeatedly ignored J.D.’s clearly communicated lack of consent to sexual touching and vaginal intercourse during the incident in the RV in late August or early September of 2018. [ 64 ] I further accept that Mr.

Guapo continued to disregard her clearly communicated lack of consent to sexual touching, vaginal intercourse and attempted anal penetration throughout the balance of their relationship after July 1, 2019. [ 65 ] I accept J.D.’s evidence of the specific incident of sexual assault which occurred in the early spring of 2020 when she was led from the kitchen where she had been doing the dishes, to the bedroom, and the Accused engaged in sexual intercourse despite her verbally communicated lack of consent, her conduct in attempting to push him away and her distraught emotional state. [ 66 ] The Accused failed to seek affirmatively communicated consent for each and every sexual act.

The Accused was not wilfully blind to whether J.D. was consenting as I find he knowingly disregarded J.D.’s affirmatively communicated lack of consent, expressed through both words and conduct. To reiterate what was said in Goldfinch at para.44 : Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required. [ 67 ] The law is clear that once a person communicates that they do not want to engage in sexual activity, all sexual activity must cease.

Positive affirmative of consent is not obtained through badgering or cajoling or repeated sexual touching which ultimately results in capitulation by the victim. [ 68 ] On the whole of the evidence I am not left with a reasonable doubt as to the guilt of Mr. Guapo on both Counts 1 and 2. I find him guilty on both counts. _______________________________ The Honourable Judge J.C. Challenger Provincial Court of British Columbia