R. v. Heppner, 2017 BCSC 1396

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Heppner, 2017 BCSC 1396 Date: 20170619 Docket: 26963-2 Registry: Vancouver Regina v. Darren Darcy Edward Heppner Restriction on publication: Permanent Order in Respect of the Complainant pursuant to Criminal Code , s. 486.4(1)(a)(

i) and

(2) Section 276.3(1) Evidence of sexual conduct of complainant Restriction on Publication: A publication ban has been automatically imposed under s. 276.3 of the Criminal Code restricting the publication, broadcasting or transmission in any way of information concerning the sexual conduct of the complainant, identified in this judgment by the initials J.W., other than that which is the subject matter of the charge. This publication ban applies indefinitely, unless otherwise ordered. Before: The Honourable Madam Justice Fitzpatrick Oral Reasons for Judgment Counsel for the Crown: C.

Smith Counsel for the Accused Darren Heppner: P. Pakenham (to October 21, 2016) D. Fai (from November 18, 2016 for remainder of trial) Place and Date of Trial: Vancouver, B.C. September 26-30, 2016 October 3-7, 11-14, 17-21, 24, 2016 November 1, 14, 18, 2016 March 6-10, 13-14, 2017 April 11-13, 2017 Place and Date of Judgment: Vancouver, B.C. June 19, 2017 INTRODUCTION .. 3 BACKGROUND FACTS .. 4 INVESTIGATION OF MR. MORGAN .. 11 THE CROWN’S CASE .. 12 (

a) Evidence of J.W. and Mr. Morgan . 14 (

b) Physical Evidence . 15 (

c) Video Recordings . 18 (

d) Electronic Data . 22 (

e) DNA Testing . 26 (

f) Medical Evidence (Including J.W.’s Injuries) 27 (

g) Statements of Mr. Heppner 32 (

i) August 14, 2014 Statement 33 (ii) September 10, 2014 Statement 33

CREDIBILITY OF J.W. 34 CREDIBILITY OF MR. MORGAN .. 34 DEFENCE EVIDENCE .. 35 CREDIBILITY OF MR. HEPPNER .. 41 THE RELEVANT LAW ... 47 DISCUSSION .. 50 CONCLUSION .. 64 INTRODUCTION [ 1 ] Late in the evening on July 14, 2014, the complainant, J.W., awoke in a Vancouver motel room. She was in pain and wrapped in bedding on the floor. When J.W. looked in the mirror, she did not recognize herself. She realized that she had been severely beaten. J.W. has no memory of the events immediately before the assault; nor does she know the identity of the person who assaulted her.

She had no idea how this had happened or even what had happened to her. [ 2 ] Despite the lack of direct evidence, the Crown has amassed a substantial amount of circumstantial evidence which it contends supports the conclusion that the accused, Darren Heppner, was the person who assaulted and sexually assaulted J.W. The Crown also alleges that J.W. was choked by Mr. Heppner in the course of his assault of J.W. [ 3 ] In June 2016, Mr.

Heppner was charged with three counts, all said to have taken place in Vancouver on or about July 14, 2014: Count 1: that he committed aggravated sexual assault of J.W., contrary to s. 273(2) (

b) of the Criminal Code ; Count 2: that he committed aggravated assault of J.W., contrary to s. 268(2) of the Criminal Code ; and, Count 3: that, with intent to enable the indictable offence of sexual assault, he attempted to choke J.W., contrary to s. 246 (

a) of the Criminal Code . [ 4 ] Mr. Heppner elected to call evidence at the trial and he took the stand. He admits to having sexual intercourse with J.W.; however, he says that it was consensual. He denies having attacked, beaten and choked J.W. BACKGROUND FACTS [ 5 ] Unless otherwise indicated, the following background facts are my findings of fact, arising from the testimony of J.W., Keith Morgan and Mr. Heppner. [ 6 ] By way of a preliminary point, J.W.’s recollection of events was much better than that of Mr. Morgan.

Where their evidence differs, I prefer the evidence of J.W. [ 7 ] J.W. is a young Aboriginal woman with a petite build. At the time of the trial, she was 30 years old. In July 2014, she was approximately 28 years old. [ 8 ] J.W. met Mr. Morgan at a bus stop. At that time, Mr. Morgan, also Aboriginal, was approximately 25 years old. He was living with his mother in the 600 block of 6th Avenue in Vancouver, just east of Main Street. Between their first meeting and July 2014, Mr. Morgan and J.W. had seen each other a couple of times and communicated by text and Facebook. [ 9 ] They both had cellular phones. Mr.

Morgan didn’t have data services so he relied on Wi-Fi to access the Internet from his phone. J.W. didn’t have voice mail, but her phone had a data plan. [ 10 ] On July 12, 2014, J.W. communicated with Mr. Morgan about possibly spending some time together the next day. On Sunday, July 13, 2014, they agreed to meet at Jimmy’s Taphouse, a pub near Library Square in Vancouver. Mr. Morgan arrived at the pub around 9:00 p.m. and he began consuming alcohol. Around 9:30 p.m., J.W. arrived at the pub. [ 11 ] At approximately 9:30 p.m., Mr. Morgan began communicating with a “Darren Dominic” on his phone. Mr.

Morgan was suggesting that they meet. Mr. Heppner now acknowledges that he was the “Darren Dominic” that Mr. Morgan contacted that night. [ 12 ] While at the pub, J.W. consumed two beers, one with a shot of coffee liqueur. Mr. Morgan and J.W. eventually left the pub and went to the nearby wine and beer store where Mr. Morgan bought a case of 12 Cariboo beer (which come in green cans) and a bottle of vodka. J.W. understood that Mr. Morgan was purchasing the vodka for a friend who was to meet up with them. [ 13 ] At approximately 11:15 p.m., Mr.

Morgan and J.W. went to the SkyTrain station at Commercial Drive and Broadway Avenue. Around 11:30 p.m., they went to a nearby park, where J.W. consumed food and pop and both of them drank some beer. [ 14 ] Mr. Heppner texted Mr. Morgan at approximately 12:50 a.m. on July 14, to say that he was on his way to the park. He joined Mr. Morgan and J.W. in the park sometime after 1:00 a.m. Cell phone data from Mr. Heppner’s phone places him in the vicinity of the Broadway and Commercial SkyTrain station by 1:15 a.m., similar to what was indicated on Mr. Morgan’s phone.

[ 15 ] Although Mr. Morgan and Mr. Heppner knew each, J.W. did not know “Darren”. J.W. described him as being around her age, tall, Aboriginal and dark skinned with tattoos. J.W. positively identified Mr. Heppner in court as the “Darren” she met at the park. [ 16 ] The evidence is not entirely clear as to what alcohol was consumed by these three people after Mr. Heppner’s arrival at the park.

I find that the consumption of the Cariboo beer and vodka continued, although it was not fully consumed at the park. [ 17 ] The central issues relate to events at the City Centre Motor Hotel located at 2111 Main Street, Vancouver (the “Motel”), between 5th and 6th Avenues. Video surveillance footage at the Motel confirms many of the activities of all three persons at the Motel on July 14, 2014. [ 18 ] Around 2:30 a.m., J.W., Mr. Morgan and Mr. Heppner travelled by taxi to the Motel. The remaining beer was brought with them. Both Mr. Morgan and J.W. describe that the plan was to “hang out” at the Motel since Mr.

Morgan couldn’t take the party to his mother’s house. Cell phone data from Mr. Heppner’s and Mr. Morgan’s phones place both of them in the vicinity of the Motel by approximately 2:36 a.m. [ 19 ] Mr. Morgan rented and paid for a room - room 118 - for one night. Both J.W. and Mr. Heppner were outside the Motel office when Mr. Morgan made these arrangements. J.W. describes herself as “tipsy” or “intoxicated” when she arrived, which is evident from her appearance on the video at the Motel. [ 20 ] At the time of their arrival, Mr. Morgan was wearing a red t-shirt and shorts. Mr.

Heppner was wearing a black t-shirt, dark pants and what appear to be red running shoes with a reflective back. J.W. was wearing a blue summer dress, underwear, a bright pink bra, scarf and sandals. She also had a navy blue purse containing her phone, wallet, money and a phone charger. [ 21 ] There are two entrances at the southwest corner of the Motel property at Main Street and 6th Avenue, both of which take you directly to the office. The Motel office is located in the two-story main building which also contains various alcoves, numbered #1-4 on the east side of the building.

Alcove #3 is the only entrance to four rooms: 116 and 118 on the main floor and stairs leading to the upper floor where rooms 217 and 219 are located. Room 118 is just to the right after one enters alcove #3. A parking area is located between the building and Main Street which allows Motel patrons to park their cars directly in front of the alcoves. [ 22 ] J.W., Mr. Morgan and Mr. Heppner walked to room 118 through alcove #3. Room 118 is one large room furnished with two beds, a desk, a TV and dresser and a bathroom.

One bed is near the curtained window and the other is near the wall closest to the bathroom. [ 23 ] The drinking continued once all three of them entered room 118. J.W. and Mr. Morgan were on the bed closest to the window. Mr. Heppner was on the bed closest to the bathroom. All three of them continued to drink alcohol, although their recollections of what they drank, and in what amounts, differed between them. At some point, they ran out of alcohol and they ordered more to be delivered to the Motel. Mr.

Morgan’s evidence, which I accept, was that they ordered a case of either Molson Canadian or Budweiser beer (both come in red/white cans) or some hard liquor, likely a 26 ounce of vodka. [ 24 ] In addition, throughout the early hours that day, all of them consumed cocaine, although J.W. states that she had very little. [ 25 ] J.W. and Mr. Morgan had a romantic interest in each other. J.W. and Mr. Morgan were affectionate with each other throughout the night. They are seen on the video recordings hugging, kissing or walking with their arms around each other at various times over the evening.

They were also touching intimately while in the Motel room. At one point, J.W. took her bra off and put it in her purse. They had consensual sexual intercourse in the bathroom on two occasions. Mr. Morgan stated that they only attempted to have intercourse since the cocaine affected his sexual ability. He says that he didn’t ejaculate when they had sexual intercourse. He confirms that he wasn’t wearing a condom. [ 26 ] At some point in the morning of July 14, J.W., Mr. Morgan and Mr. Heppner all participated in a discussion about whether Mr. Morgan was fit enough to go to work that morning. Mr.

Morgan eventually concluded that he would go to work. It was around this time that the second sexual encounter between J.W. and Mr. Morgan took place in the bathroom. [ 27 ] Around 9:00 a.m., Mr. Morgan went to the Motel office to extend the room for another night. He obtained a receipt that he took back to room 118. He and J.W. discussed that he would return to the Motel after work and that J.W. would wait for him there. [ 28 ] At 9:25 a.m., Mr. Morgan took a photo of himself and J.W. on his phone. In that picture, her face is unmarked and normal. All three persons confirm that this is how J.W. looked when Mr.

Morgan left the Motel to go to work. [ 29 ] Around 10:00 a.m., Mr. Morgan left the Motel. He went home first and then proceeded to his place of employment in the Downtown Eastside of Vancouver. [ 30 ] Mr. Morgan left J.W and Mr. Heppner alone in room 118. Just before he left, J.W. and Mr. Heppner were on the two separate beds talking. J.W. was wearing her dress and underwear. [ 31 ] What happened after this point in time is the central issue. [ 32 ] At approximately 1:16 p.m., Mr. Heppner left alcove #3 and the Motel property. Around this time, he texted Mr.

Morgan and alleged that there had been a fight at the Motel. I will set out the specifics of these events in more detail below. It will suffice to say at this time that based on this report, Mr. Morgan was concerned that his friend Darren had been set upon by some “punks” and that J.W. was somehow to blame. [ 33 ] Mr. Morgan returned to the Motel around 3:15 p.m. after he had finished work. He arrived on his bicycle with a knapsack. After a brief visit to the Motel office to get a room key, he entered the closed door to room 118. He saw a person on the floor at the foot of one bed wrapped in a blanket or sheet.

He thought this was one of the “punks” who had been invited over by J.W. He was concerned that

there might be other people in the room so he left quickly. [ 34 ] Before leaving room 118, Mr. Morgan noticed a purse. He took the purse because he thought it might give him clues about who caused the fight. He went home and, after looking in the purse, realized that it belonged to J.W. Inside was her phone, which Mr. Morgan tried to unlock without success. He tried to text or call her cell phone in an attempt to unlock the phone. He also made various searches of the Internet in these efforts. [ 35 ] In the evening of July 14, Mr.

Morgan was still at home and making some attempts to find out who the “punks” were. [ 36 ] The next time in which J.W. has any memory is when she woke up on the floor between the two beds in room 118. She was covered by a blanket. She was wearing her dress and underwear. She felt pain; she was confused; she was not sure where she was or what had happened to her. [ 37 ] J.W. went to the washroom. When she looked in the mirror, she barely recognized herself. Her face was puffy and bruised, clearly indicating that she had been badly beaten.

She cried and went back into the room to locate her cell phone which was in her purse. She found neither. [ 38 ] Shortly thereafter, at 11:21 p.m., J.W. figured out to use the phone in the room to call 9-1-1. She was so confused about her whereabouts that she was only able to advise the dispatcher of her location by reading the room receipt that Mr. Morgan had left. [ 39 ] After the 9-1-1 call, Csts. Claire McNeight and Ryan Stafford of the Vancouver Police Department (VPD) were dispatched to the Motel.

They arrived around 11:30 p.m. [ 40 ] The police officers knocked on the closed door to room 118 and J.W. answered. They quickly observed her injuries. Her face was swollen and her left eye was completely shut. They noted that she was in pain, disoriented and had little memory of what had occurred. J.W. had difficulty speaking. She showed the officers the rental receipt in Mr. Morgan’s name. [ 41 ] Cst. Stafford indicated that J.W. appeared to be intoxicated and she smelled of alcohol. Cst.

McNeight described her as scared. [ 42 ] The officers called for an ambulance to attend on code 3 (lights and sirens). [ 43 ] The ambulance arrived at the Motel at 11:47 p.m. After the initial examination, the attending paramedic Teri Lai noted J.W.’s left eye was swollen shut, she had bruises on her face, neck, left shoulder, right elbow and knuckles, her lip was swollen and she had a loose tooth. J.W. indicated that she didn’t know if she had been sexually assaulted. Ms.

Lai did not note that J.W. was significantly impaired by alcohol, although J.W. did acknowledge to her that she had consumed alcohol that day. [ 44 ] J.W. was transported by ambulance to Vancouver General Hospital (VGH) and she arrived around midnight. While in the Emergency Department, she was seen by Dr. Brent Passi around 12:30 a.m. on July 15. At that time, she was wearing her dress and underwear and she had her sandals and scarf. [ 45 ] After clearing the scene at the Motel, Cst. McNeight attended briefly at VGH.

She observed that J.W. was still in a state of shock and disbelief and still not able to understand what had happened to her. [ 46 ] On initial examination, J.W. was found to have been severely beaten. The more apparent injuries that were identified included: severe bruising to the left side of her face; her left eye was swollen shut; neck and chest tenderness and extremity tenderness. J.W.’s facial ridge where her upper teeth were located was fractured. [ 47 ] J.W. was also examined by Dr. Bali Athwal regarding a possible sexual assault. Dr.

Athwal is a family physician and is an examiner of the Sexual Assault service at VGH. Dr. Athwal gave evidence at trial, in part, as an expert witness in the area of family medicine and forensic sexual assault examinations and the mechanism of injury and aging of bruises. [ 48 ] On the morning of July 15, J.W. consented to a full examination by Dr. Athwal, including the taking of various genetic samples. [ 49 ] In late July 2014, Cst. Stephanie Willoughby and Cst. Hans Dykman of the VPD’s Major Crime Unit assumed conduct of the investigation. INVESTIGATION OF MR.

MORGAN [ 50 ] Based on the condition of J.W. and her inability to recall how she was assaulted, Cst. McNeight considered that there were reasonable grounds to arrest Mr. Morgan. Fairly immediately, Mr. Morgan was arrested at his residence for assault causing bodily harm. His phone was seized. [ 51 ] Mr. Morgan insisted that he had done nothing wrong and he was willing to speak to the police. In the course of the arrest, the VPD officers did not notice any injuries on Mr. Morgan’s face, chest, arms or hands. Mr. Morgan advised the VPD that he had been at the Motel with Darren Dominic and J.W.

He showed the VPD the contact information that he had for Darren. They obtained a statement from Mr. Morgan. Later on July 15, Mr. Morgan was released without charge by the VPD. [ 52 ] On July 20, J.W. met with Csts. McNeight and Stafford at her home. Cst. McNeight described J.W. as still in a state of shock at that time and noted that she was having difficulty speaking. J.W. reported that she was having concussion-like symptoms and that she had not left her home since being released from VGH. [ 53 ] J.W. then provided a written statement to Cst.

McNeight that was later supplemented by certain questions and answers which J.W. confirmed as correct.

[54] By this time, J.W. had not yet located her phone or purse so she was unable to give the VPD any contact information for Mr.Morgan. With J.W.’s assistance, the VPD accessed her Facebook account. This was the first time that J.W. became aware that Mr.Morgan had been trying to communicate with her in the afternoon of July 14. J.W. indicated that Mr. Morgan was a friend. [55] In late July 2014, J.W. contacted Mr. Morgan using another device and made arrangements to get her purse back from him. Atthat time, she noticed a further Facebook message from Mr. Morgan dated July 19: I want you to know I had no

part in what happened, Darren said he fought his way out thinking those guys were with you. I left for workaround 9 am and you were both going to bed and planned to wake up when I got off work. I feel horrible and would have never went towork if I knew this was going to happen. [56] In August 2014, Cst. McNeight obtained a photograph of Mr. Heppner that the VPD had on file. J.W. later positively identifieda picture of Mr. Heppner in a photo array as the “Darren” who had been partying with her and Mr. Morgan at the Motel.

THE CROWN’S CASE [57] Given that the Crown’s case is circumstantial, the court must engage in a fact-finding exercise arising from an evaluation of theevidence. The accused cannot be found guilty unless there is no other reasonable explanation for the circumstantial evidence, other thanthat the accused committed the crime: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679 at 690. [58] In this type of case, the trier of fact is not to look at the evidence on a piecemeal basis, but to consider the evidence as a whole:see R. v. Ahmadzai, 2012 BCCA 215 at para. 34.

This well-known concept is also found in the comments of Pigeon J. in R. v. Stewart, (SCC), [1977] 2 S.C.R. 748 at 759-761: In my view, the trial judge fell into a double error, not only did he apply repeatedly a much stricter standard than that which is required,but he applied it to particular elements of the evidence taken in isolation.

In other words, instead of taking together all the evidence andproperly relating every fact to all the others, he dealt separately with each, discarding them successively as insufficient to meet hisexaggerated standard of proof. … In my view, this was made all the more serious by the trial judge considering the weight of various elements of proof taken separately. InCôté v.

The King (1941), (SCC), 77 C.C.C. 75, Taschereau J. as he then was, said, speaking for all but one member ofthe Court (at p. 76): It may be, and such is often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; butall the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together that mayconstitute a proper basis for a conviction. [59] The Court of Appeal in Ahmadzai quoted the trial judge as stating that “the onus on the Crown is proof beyond a reasonabledoubt, not proof beyond all speculation and conjecture.” On this point, the Crown cites R. v.

To, (BC CA), [1992]B.C.J. No. 1700 (C.A.), where the court discussed the distinction between legitimate inference and speculation or conjecture. McEachernC.J. held: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty.

I do not think it could properly be said that an inference of knowledge in this casewould be unreasonable or unsupported by the evidence. [60] There are various elements to the Crown’s case which, as a whole, the Crown says point to there being no other reasonableexplanation, but that Mr. Heppner is guilty of the assault and sexual assault of J.W. [61] The Crown’s case is centered on the following key elements:

a) J.W. and Mr. Morgan’s evidence of the events leading up to and during the stay at the Motel and after Mr. Morgan’s return and laterdeparture, including what I have related above;

b) physical evidence found (or not found) at the Motel;

c) video recordings at the Motel;

d) electronic data, including Facebook postings and messaging between Mr. Morgan and Mr. Heppner, and also Mr. Morgan and J.W.,as found in cellular phone records;

e) DNA analysis of some of the physical evidence, including swabs from J.W. and Mr. Heppner;

f) medical evidence, including relating to the nature, timing and mechanism of J.W.’s injuries; and

g) two statements of Mr. Heppner. [62] I will deal with each in turn.

(

a) Evidence of J.W. and Mr. Morgan [ 63 ] In addition to the evidence I have set out in Background Facts, the Crown points to further evidence from J.W. [ 64 ] She says that she had no sexual interest in Mr. Heppner and that she was not affectionate with him at all during the time at the Motel. She denies or does not recall ever having sex with Mr. Heppner, let alone consenting to have sex with him. She has no idea how Mr.

Heppner’s DNA got inside her vagina, as the forensic testing would later establish. [ 65 ] There is no doubt that J.W.’s recollection of the events that evening was hampered by her alcohol consumption. She was unable to recall various details, a fact that she readily admitted. The defence also made much of J.W.’s 9-1-1 call where she stated that she had been assaulted and robbed.

She said: Well, I woke up with, il- … When I was first hanging out here, I was hanging out with like, with four guys, I know it sounds horrible but we’re just hanging out, and I, my, my friend, he had to go to work. [ 66 ] J.W. acknowledged that she had no idea why she would refer to “four guys” when it was always just her, Mr. Morgan and Mr. Heppner in the room. In my view, this mistake can be readily attributed to the shock and confusion in J.W.’s mind when she awoke in the room. This confusion is evident from further statements she made to the ambulance dispatch.

In later parts of the phone call, J.W. correctly referred to her friend, Mr. Morgan, going to work and leaving her alone with another guy, not four guys. [ 67 ] J.W.’s key evidence relates to the events at the Motel room after Mr. Morgan left. She says that she went to the washroom. After she came out, Mr. Heppner offered her a shot of vodka which had been poured into one of the Motel’s glasses. She took the glass and drank it quickly. Mr. Heppner similarly had a shot of vodka. Her next recollection was over 13 hours later, when she awoke on the floor of the Motel room as I described above.

J.W.’s testimony on this point was not challenged. I have no hesitation accepting this evidence. (

b) Physical Evidence [ 68 ] After J.W. was taken from the Motel by ambulance, Csts. McNeight and Stafford arranged for other VPD officers to secure room 118 until a forensic investigation could begin. There is no suggestion that the evidence in that room was altered in any way by the VPD so as to contaminate the results of later testing. [ 69 ] The room was generally neat and tidy and unusually so. Photographs taken of the room indicate:

a) the only door - the front door - to the room has a self-closing mechanism, by which it automatically closes and locks;

b) hanging from the outside door knob of room 118 was a “Do Not Disturb” sign;

c) the bedding on both beds had been disrupted;

d) the bed nearest to the window, where J.W. and Mr. Morgan had sat most of the night, had the usual fitted and top sheets, a mattress pad, a bedspread and blanket. The bedspread was somewhat rolled up on top of the bed. A pillow case near the headboard was found with some red staining;

e) the bedding on the bed near the bathroom, where Mr. Heppner had been sitting or lying most of the night, was seriously disturbed. The bed had no fitted or top sheet, but the mattress pad was there. Two pillows were there - one at the headboard and another in the centre of the bed. Also found on this bed was a bedspread although it was mostly upside down and crumpled at the bottom of the bed. Some red staining was present on the underside. The blanket was found mostly rumpled on the floor, with only a corner tucked into the bottom of the mattress. Red staining was found on the blanket;

f) the room is remarkably clean and free of garbage or debris, such as beer cans, vodka bottles, pop containers, cigarette packages or cigarette butts. Other than a Molson Canadian beer can found in the bathroom, no garbage was found in the room or in either of the two garbage cans in the bathroom. In particular, there were no other beer cans, including Cariboo beer cans and no vodka bottles;

g) the bathroom only contained two towels (which appear to be hand and bath towels) on a high towel rack, rather than two face, two hand and two bath towels that are usually placed in guest rooms. There were no dirty or used towels. Clearly, some towels were missing;

h) there were no apparent signs of struggle;

i) there was no garbage or garbage bags in the two wastebaskets, although plastic bags were usually placed in the wastebaskets;

j) the ashtray was clean but for a single ash; and

k) there was no damage or signs of forced entry to the door to the room. [ 70 ] Both J.W. and Mr. Morgan could not recall removing any garbage, sheets or towels from room 118. [ 71 ] The VPD seized exhibits from the room including: a drinking glass and Molson Canadian beer can found in the bathroom, another drinking glass found on the desk and various bedding items (the pillow case on the bed nearest to the window and the bedspread and blanket from the other bed) which appeared to show blood stains. [ 72 ] The stains on the bedspread on the bed nearest the bathroom tested positive for blood as a result of a presumptive Heme-Stix test.

[73] At VGH, Cst. Stafford seized J.W.’s clothing, namely her dress, sandals and scarf. The dress and scarf had visible red staining,which J.W. confirms was not present during her time at the Motel prior to Mr. Morgan leaving for work. The Heme-Stix test done on thetwo stained areas of the dress and the staining on the scarf all tested presumptively positive for blood. [74] Surprisingly, no fingerprints were found on the two glasses or the Molson Canadian beer can. Cst.

Sean Martel testified thatglass is a very good surface for retrieving fingerprints; however, he found no “print activity” on the drinking glasses seized. Cst. Martelsubsequently took swabs from the two glasses and the beer can. [75] I agree with the Crown that the obvious and logical inference here is that the glasses were cleaned or wiped after use to eraseany fingerprints. [76] On July 17, 2015, at the time of Mr. Heppner’s arrest, the VPD seized red-coloured Nike Air Jordan running shoes which hehad coincidentally selected to wear in order to leave with the VPD officers.

They have silver at the back which is reflective. These shoesare the same ones, or very similar to the ones, which Mr. Heppner is seen wearing on July 14 in the video clips. [77] There was also considerable evidence about the physical layout of the Motel property and points of ingress and egress. The property is bounded by a hedge along Main Street on the east and 6th Avenue on the south. There are only two entrances for motorvehicle traffic, one from Main Street and one from 6th Avenue. To the north is another separate building which completely encloses thatboundary.

At the northeast corner is a wooden gate that theoretically one could scale. At the west boundary is a high hedge and high chain link fence and the fence also extends along most of the south side until the entranceway on 6th Avenue. [78] Accordingly, the only entrances onto the Motel property, for either motor vehicle or pedestrian traffic, are the two entrances justoutside of the Motel office that are monitored by video. (

c) Video Recordings [79] The video recordings are a critical piece of evidence, not only by what they show, but when they show certain eventshappening. There remain issues about what they do not show, as I will discuss below. [80] The Motel’s video surveillance system had nine motion-activated cameras situated around the exterior of the Motel and insidethe Motel office.

The most important of these cameras was camera #4 which was situated outside the office in the main building and waspointed to the north and northwest, encompassing the parking area just outside the alcoves north of the office, including alcove #3 whereroom 118 was located. Cameras #7 and 8 were located on the west (or opposite) side of the main building and covered the parking areasand alcoves there. [81] Technicians employed by the VPD Tech Crime Unit collected various video recordings after the incident. Video from camera#4 from 9:13 a.m. to 4:15 p.m. on July 14 was recovered.

Video from cameras #7 and #8 from 12:01 p.m. to 4:15 p.m. on July 14 wasrecovered. There was some difficulty in recovering video from cameras #4, #7 and #8 from 7:10 p.m. to 11:56 p.m. on July 14 so thatwas not obtained. [82] The Motel’s camera system is started and stopped by a motion activation system. When the camera recognizes a certain amountof change in its observed area, it begins to record. The threshold level of change is set by the video system. After the level of changedecreases to a sufficient point, also set by the video system, the camera continues to run for seven seconds.

It is quite apparent that themotion activation system resulted in many images either suddenly appearing on screen or disappearing off screen. [83] The evidence of Chris Stoddard, a VPD forensic video analyst, was that the most significant factor affecting this triggering wasthe amount of light. It is easier to discern differences in light and dark contrasts in the daytime or in brightly lit rooms. [84] In addition, the evidence of various VPD technicians, including Mr. Stoddard, was that the actual time on the videos wasapproximately 12 minutes slower than real time.

This conclusion is not contested by the defence. I find as a fact that the time stamp onthe video recordings is approximately 12 minutes slower than the actual time, and is properly adjusted by that amount of time. [85] It is now well-accepted that, depending on the quality and clarity of a video tape, it may be admitted into evidence and used bythe trier of fact in determining the identity of a perpetrator: R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197 at 1210-1211, 1217-1218. See also R. v.

Panghali, 2012 BCCA 407 at paras. 39-41, 70-80. [86] Issues of identity in this trial were conceded by the defence during the testimony of the Crown’s witnesses. It is commonground that one of the males in the video recordings is, indeed, Mr. Heppner. Particularly, Mr.

Heppner was wearing what can bedescribed as very distinctive clothing, particularly the red Nike shoes with the reflective back, which were the same or similar one tothose he was wearing when he was later arrested in 2015. [87] As the Court also stated in Nikolovski at 1215, video tape evidence may be used in determining not only identity, but alsowhether a crime has been committed: Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissibleand relevant evidence.

Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but itis to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has beencommitted and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiasedand accurate witness who has complete and instant recall of events.

It may provide such strong and convincing evidence that of itself itwill demonstrate clearly either the innocence or guilt of the accused. [88] The video recordings, in particular from camera #4, show in approximate real time:

Approximate Real Times Activities 2:25 a.m. A Yellow Cab pulls up to the Motel. J.W. and Mr. Morgan exit the cab. Subsequently, Mr. Heppner gets out of the cab. 2:35-2:37 a.m. Mr. Morgan rents a room at the office. The three persons head to room 118 in alcove #3. 2:57 a.m. 3:43 a.m. Mr. Morgan and J.W. make two trips to the Motel’s office with what appears to be a white wastebasket, apparently for ice. A white wastebasket is later found in the room by the VPD. 5:30 a.m. Mr. Heppner is outside alcove #3 and enters the main parking lot in front of alcove #3. He is on his cell phone.

The video does not record him re-entering alcove #3. 8:45-8:57 a.m. Mr. Morgan is seen leaving alcove #3 and going to the office. He pays for the second night and carries a receipt back to alcove #3. 10:04 a.m. Mr. Morgan leaves from alcove #3 and is seen leaving the Motel property. 1:01 p.m. Mr. Heppner leaves alcove #3. He does not walk to the two main entrances of the Motel; rather, he walks to the north end of the main building and around to the west side and heads to the south. Neither path affords him any exit to the street as a chain link fence and hedge block all west boundaries.

He continues walking southbound off camera. He is wearing the same clothing as the previous night, including his red Nike running shoes. As Mr. Heppner exits alcove #3, he is carrying a large white bundle under his left arm. As he rounds the building and walks casually to the south, he is smoking a cigarette. 3:15 p.m. Mr. Morgan is seen returning to the Motel on his bicycle. After going to the office, he heads to alcove #3 with this bicycle.

A little over a minute later he comes out of alcove #3 and bikes away at a rapid pace. [ 89 ] Given the bright summer day on July 14, it can be expected that there was a fair amount of traffic at the Motel on the day on question. The question that then arose was whether someone else had access to room 118 while J.W. was there, giving that person, or persons, the opportunity to assault her during the relevant timeframe. [ 90 ] This question was largely answered by Cst.

Elizabeth Samuel’s extensive analysis of the video footage of alcove #3 and the movements of various persons who may have accessed alcove #3 via the main access points of the Motel or from other areas of the Motel. She analyzed the footage not only of camera #4 which directly pointed to alcove #3 from the main entrances, but also cameras #7 and #8 on the west side of the main building.

It was quite apparent that people who were booked into the west side of the building came around the north corners of the building and toward the main parking lot in front of alcove #3 and then to the office (although they disappeared briefly from view as they passed the north end of the building). Similarly, various people went from the main parking lot in front of alcove #3 or the office past alcove #3 and around the north corners of the building and turned southbound, just as Mr. Heppner did. [ 91 ] Cst.

Samuel testified that, based on her review, she concluded that no one approached alcove #3 from the other side of the building (as evidenced from cameras #7 and #8) from approximately 12:00 noon to 4:15 p.m. on July 14, save and except for one person who was only out of view a maximum of 26 seconds. [ 92 ] Victor Hakanson and his spouse were guests of the Motel on July 14, 2014.

They stayed in room 217, which is also accessed through alcove #3, although it was upstairs and to the left. [ 93 ] Their vehicle, a black Dodge Dakota truck, is seen parked in front of alcove #3 in the early morning of July 14, when they were checking out of the Motel. The video clip of the Motel that morning shows Mr. Hakanson going to his truck just before 8:00 a.m., at which time he is loading the vehicle. Around 8:10 a.m., his spouse is seen walking across the parking lot on her way to the Motel’s office. Mr.

Hakanson pulled his vehicle out at that time and then proceeded to drive around the Motel building on his way to the office where he picked up his spouse. [ 94 ] Similarly, Yoav Niv and his girlfriend were guests of the Motel on July 14, 2014, having arrived on July 13. They stayed in room 116, which is accessed through alcove #3, just across from Room 118 on the ground level. Their vehicle is seen parked in front of alcove #3 in the early morning of July 14. They are seen coming in and out of alcove #3 between approximately 9:35 a.m. and 10:55 a.m., after which they left the Motel parking lot. [ 95 ] Neither Mr.

Hakanson nor Mr. Niv noticed anything untoward at the Motel on July 14, particularly as it related to room 118. Mr. Niv and his girlfriend also stayed the night of July 14 and only became aware of the matter when they returned to the Motel that night and saw the emergency vehicles, presumably the ones which responded to J.W.’s 9-1-1 call. [ 96 ] The defence argues that the recordings do not capture everyone entering or leaving alcove #3. For example, Mr. Heppner is seen leaving alcove #3 at 5:28 a.m. but he is not seen returning.

The Crown concedes that there are imperfections in the video evidence as a result of the motion-activated recording system parameters. In particular, the Crown accepts that camera #4 does not necessarily

record every person who enters or exits alcove #3. [ 97 ] I accept that there are limitations in the video recordings, as suggested by the defence. However, the extensive footage provided by the Crown generally supports the proposition that the video system was properly functioning on the day in question. In addition, known events of the main characters were recorded and generally speaking, the movements of other people at the Motel on July 14 could be tracked as they moved from camera to camera. (

d) Electronic Data [ 98 ] J.W., Mr. Morgan and Mr. Heppner’s words and actions over the relevant timeframe were recorded to a large extent in electronic data, through their various phone and Facebook records. These records indicated communications in a variety of formats, being phone calls, text messages, iMessages (messages between iPhones) and Facebook messages. I will not usually distinguish as between these various communication formats in these reasons as it is not relevant. [ 99 ] J.W., Mr. Morgan and Mr.

Heppner all acknowledged their phone records from July 13 and July 14 and the accuracy of the messages found on their devices. [ 100 ] There were messages consistent with J.W. and Mr. Morgan’s communications in the evening of July 13 before they met at the pub. In addition, messages show communications between Mr. Morgan and Mr. Heppner leading to Mr. Heppner texting Mr. Morgan at 12:49 a.m. on July 14 that he was coming to the park to meet him. [ 101 ] Mr. Morgan and Mr. Heppner continued to communicate with each other and with others while at the Motel.

J.W. did not use her phone at all while she was at the Motel. [ 102 ] I will now summarize the communications by or between Mr. Morgan and Mr. Heppner commencing around 10:00 a.m. on July 14, when Mr. Morgan left the Motel, which is the start of the critical period:

a) commencing shortly after Mr. Morgan left room 118, Mr. Heppner did not answer phone calls or respond to text messages he received from 10:39 a.m. to 12:41 p.m.;

b) there was no use of Mr. Heppner’s cell phone until 1:16 pm, while he was in the vicinity of the Motel. At that time, Mr. Heppner sent the first communication to Mr. Morgan that something had happened at the Motel. He told Mr. Morgan: Dude your girl invited guys over some young punks and they tried starting shit I fkd up two of them then everyone took off cops came and I ditched jus got to a charger now everyone left dwn main she went with them fkd up

c) at 1:21 p.m., Mr. Morgan texted J.W. “Wtf?”. He also tried calling her and he called Mr. Heppner a number of times. There was no answer to any of his calls;

d) at 1:33 p.m., Mr. Heppner replied to Mr. Morgan “Seriously fkd up they all left together”;

e) at 1:33 p.m., Mr. Morgan sent a message to J.W. He said “Darren said some shit went down? What’s going on?”;

f) at 1:38 p.m., Mr. Morgan called both Mr. Heppner and J.W. again, with no response;

g) at 1:48/1:49 p.m., Mr. Morgan texted Mr. Heppner, saying “That’s fucked. You ok bro?” and “Fuck. I shouldn’t have went to work”; and

h) still having heard nothing from either Mr. Heppner or J.W., Mr. Morgan called or texted both of them from 2:57 p.m. to 3:14 p.m. Mr. Heppner again did not answer these calls despite his phone clearly functioning within that same timeframe. [ 103 ] The electronic evidence establishes that, consistent with his evidence and the video recording, Mr. Morgan returned to the Motel around 3:15 p.m. when he reconnected to the Motel’s Wi-Fi network. Mr. Morgan’s attendance at the Motel and what he saw there is also consistent with a message he sent to Mr. Heppner at 3:24 p.m. stating: Bro. Where you at?

I stopped by the room. One kid was still fucked p on the floor. I looked around quick and grabbed her purse [ 104 ] In addition, Facebook communications also began between Mr. Morgan and Mr. Heppner at 3:28 p.m. on July 14 and continued until almost midnight. These communications confirm that Mr. Morgan had seen someone on the floor of room 118 when he returned there. In addition, Mr. Heppner continued to suggest that there had been a fight at the Motel: Morgan: Bro, I got her shit. You alright man? I stopped by the room and one guy was still fucked up on the floor. I got her phone. We could go fck these kids up.

We got this man. Heppner: I left two in the parking lot fkd up and ran when cops came if your asked dnt say my name ok that fkd I came to fighting Morgan: You alright bro? Fuck I have called in sick and stayed Heppner: Ya I’m alright black eye n a few scratches ya we shouldn’t even been there Morgan: Fucking hood rats. I got her phone but there’s a password I’m just online seeing if I can crack it. Morgan: No luck man.

Heppner: Fk em I’ll find out Morgan: Her facebook is [J.V.]. Would you recognize those punks if you see em again? Heppner: Ya I was lookin around for them earlier they looked like dirty surry boys lol So sick today :] Morgan: Hmm. Fuck maybe ldk surrey boys. I was thinking east van punks. I was going to check the room again See if that kid woke up yet lol Heppner: Some kids in there ? Lol dought it. Morgan: He was layed out at 3:20ish when I dropped by after work [ 105 ] J.W. did not use her phone at all while she was at the Motel.

J.W.’s phone records indicate that J.W. had voice and text capabilities on her phone, but no voice mail. Again, she did not respond at all to the various texts and phone calls from Mr. Morgan throughout the afternoon of July 14. [ 106 ] The last entry on J.W.’s phone was a record of a voice call at 4:02 p.m. from Mr. Morgan’s phone. This call lasted six seconds. [ 107 ] Before his return to the Motel, all of Mr.

Morgan’s text messages and phone calls to J.W.’s phone were routed and traced to a tower address at 369 Terminal Avenue in Vancouver, which supports that J.W.’s phone was southwest of this tower and within a kilometer-and-a-half of its location; in other words, in the area where the Motel is located. [ 108 ] The evidence of Ken Bessant from Wind Mobile, J.W.’s service provider, was that this would generally mean that this tower would have been the closest to J.W. at the time or was the tower “best able” to serve the communications (being the strongest signal that, for example, didn’t have any obstructions that could negatively affect the call signal). [ 109 ] The cell phone records of Mr.

Morgan and Mr. Heppner confirm that their phones were in the areas where they were said to be located: Mr. Morgan on the eastside of Vancouver early on July 14; at the same time, Mr. Heppner initially in Burnaby and then at the same eastside tower as with Mr. Morgan where he remained throughout the morning of July 14; Mr. Morgan in downtown Vancouver around the time he was at work; at 1:16 p.m., Mr. Heppner still in the Main Street area and Mr. Morgan downtown; and at 3:14 p.m., Mr. Morgan back in the Main Street area. [ 110 ] One important element of this evidence is that Mr.

Heppner’s phone was determined to be pinging off a tower in Burnaby at 1:48 p.m. on July 14, which was in the same location as the tower that was pinging when he initially contacted Mr. Morgan earlier that day to arrange to meet. At the time, Mr. Heppner was staying at his father’s residence, which is located in Burnaby. [ 111 ] Finally, Mr. Morgan’s phone use is consistent with him being in the Main Street area for the remainder of the evening of July 14. His home is close to the Motel.

This supports his evidence that he was home trying to unlock J.W.’s phone and trying to find out who was behind the “fight” at the Motel. (

e) DNA Testing [ 112 ] Swabs of items from room 118, being the two glasses and the Molson Canadian beer can, were sent for DNA analysis at the RCMP Forensic Science laboratory. [ 113 ] In accordance with procedures for a sexual assault examination, and as consented to by J.W., Dr. Athwal collected various genetic materials. She obtained one swab of her external genitalia, two of her vagina and one of her cervix. Dr. Athwal also obtained blood and urine samples and a buccal swab (from the cheek) from J.W. [ 114 ] J.W.’s DNA sample was analyzed by the laboratory.

In addition, the RCMP laboratory analyzed the four genital/vaginal/cervical swabs obtained from J.W., which I will call, as the RCMP laboratory does, the “intimate swabs”. [ 115 ] Mr. Heppner’s DNA was obtained in 2016 and subsequently analyzed. [ 116 ] The Crown called Nathalia Biernat, a reporting scientist employed by RCMP National Forensic Services. Ms. Biernat was accepted as an expert in the field of DNA analysis. Ms. Biernat prepared two reports dated December 10, 2014 and August 8, 2016. [ 117 ] Ms.

Biernat’s reports include an analysis of the swabs of the two glasses, the beer can and the intimate swabs, along with the known samples from J.W. and Mr. Heppner. The results of her reports can be summarized as follows:

a) the DNA on the drinking glasses found on the desk and on the bathroom vanity was matched to Mr. Heppner with a probability of 1 in 26 sextillion;

b) the DNA on the beer can was matched to J.W. Mr. Heppner was not a contributor to this profile; and

c) the DNA on all of the intimate samples from J.W. were matched to Mr. Heppner with a probability of 1 in 26 sextillion. In Ms. Biernat’s opinion, the male samples were most likely from semen. [ 118 ] For those not familiar with the magnitude of the number associated with the word “sextillion”, it has 21 zeros in it, compared to a billion with nine zeros and a trillion with 12 zeros. In other words, an extremely high level of probability. [ 119 ] Mr. Morgan was asked to provide a DNA sample for analysis. After receiving advice, including legal advice, he refused to do

so, stating that he did not want to have his DNA in the sexual assault database. Ms. Biernat was cross-examined on the lack of testing of Mr. Morgan’s DNA. She stated that this had no significance in relation to her conclusions regarding Mr. Heppner’s DNA, as above. (

f) Medical Evidence (Including J.W.’s Injuries) [ 120 ] The Crown introduced the expert evidence of Heather Copley, a forensic alcohol and drug specialist employed at the RCMP Forensic Laboratory in Ottawa. J.W.’s blood was analysed as of 12:37 a.m. on July 15 and blood and urine samples were obtained later at 9:00 a.m. that day. [ 121 ] Ms. Copley opined that given the consumption of alcohol by J.W. from the evening of July 13, J.W.’s blood alcohol concentration (BAC) would have been in the range of 182-357 mg% between 10:30 a.m. and 1:30 p.m. on July 14, 2014.

This equates to either intoxication or severe intoxication levels. [ 122 ] The blood and urine samples from J.W. obtained early on July 15 were also tested. The urine tested positive for cocaine. No alcohol was found in J.W.’s blood or urine as a result of this later testing. [ 123 ] Ms. Copley also stated that J.W.’s urine tested negative for gamma-hydroxybutyrate, which is also known as GHB or the “date- rape drug”. She stated that this type of drug is rapidly eliminated from the body and that, depending on the dose taken, blood and urine may fall back to normal levels within 8-12 hours.

This would mean that any such drug ingested by J.W. before she lost consciousness just after 10:00 a.m. on July 14 would have dissipated by the time of the testing some 23 hours later. [ 124 ] I have already outlined above the injuries noted during the initial VGH examinations of J.W. [ 125 ] In addition, Dr. Athwal’s examination involved a head to toe external examination of J.W. As an overall observation, Dr. Athwal indicated that J.W.’s injuries were “dramatic” in terms of the colour of her injuries and the level of swelling.

In most instances, the injuries were tender or very tender, meaning that palpating them caused J.W. to grimace or withdraw. [ 126 ] Dr. Athwal identified 19 separate injuries on J.W.’s body. These injuries were listed by Dr. Athwal in her sexual assault service record, in addition to being drawn on her traumagram. Those details included:

a) left eye swollen shut and bruised;

b) left cheek was grossly swollen;

c) swollen left upper and lower lip with suture placed in upper lip;

d) discoloration under left side of chin;

e) swelling and discolouration to the front and back of her neck;

f) tenderness over her entire facial area, anterior and posterior neck and posterior head;

g) discolouration or bruising to her left shoulder, left arm, both legs (knee, thigh and shin) and her back; and

h) multiple injuries to the left buttocks, including many 1x1 cm circular purple discolourations with multiple red linear marks or scratches over her left buttock. [ 127 ] An ano-genital examination was also completed, which did not reveal any tenderness, tears or abrasions. Dr. Athwal indicated that this is not uncommon, particularly if the victim is unconscious when the assault occurred or did not resist. She also acknowledged that the lack of injuries in this area was equally consistent with consensual sex. [ 128 ] As noted above, Dr.

Athwal was asked to opine on the mechanism of injury and the aging of bruises. She said that the bruises found on J.W. were very recent, having occurred within the last 24-36 hours from the time of her observations at 9:00 a.m. on July 15. She stated the following about J.W.’s various injuries:

a) five injuries to her eyes, face, lip and chin: blunt force injury to eyes, face and lip; struck by blunt force object, such as a fist, which can fit within the socket. Injury to the chin consistent with rough material having rubbed the skin off; significant force to take off the skin;

b) three injuries to the front of her neck: blunt force trauma or sustained forceful pressure. Burst blood vessels below chin indicative of blocking of blood vessels by sustained forceful pressure, such as arising from strangulation;

c) one injury to the front of her left shoulder: blunt force trauma or sustained forceful pressure;

d) two injuries to the left arm: fingertip pressure indicated by small (1x1 cm) circle bruise. Blunt force trauma;

e) one injury to the front of the right leg: consistent with rough material having rubbed the skin off; significant force to take off the skin;

f) two injuries to the front of the left leg: fingertip pressure indicated by two small (1x1 cm) circle bruises;

g) one injury to the back of her neck: recent bruising;

h) two injuries to the back: fingertip pressure indicated by two small (1x1 cm) circle bruises consistent with being grabbed in that area;

i) multiple injuries to the left buttocks: fingertip pressure indicated by multiple small (1x1 cm) circle bruises consistent with being grabbed in that area and numerous (too many to count) linear marks; and

j) two injuries to the outside of the right leg: blunt force trauma or sustained forceful pressure. Fingertip pressure indicated by small (1x1 cm) circle bruises. [ 129 ] Dr.

Athwal on cross-examination stated: people exhibit different susceptibility to bruising; she could not say with certainty whether the injuries were caused while J.W. was standing or supine; the injuries just below the neck could be consistent with being hoisted up so as to have sex in a vertical position; and, there is no way to tell if the various injuries occurred at the same time within the previous 36 hour period or if they were inflicted by the same person. [ 130 ] It is undisputed that J.W. sustained these injuries sometime after Mr.

Morgan left the Motel around 10:00 a.m. on July 14 and before J.W. awoke around 11:30 p.m. that night. [ 131 ] During her July 20 visit with J.W., Cst. McNeight also noted injuries which had not been apparent on July 15 because of the severe swelling of J.W.’s face and neck at that time. Cst. McNeight now noticed what she described as a ligature mark around J.W.’s neck which was, for the most part, the diameter of a shoestring, and which reached from ear to ear. By this time, the marks or bruises were yellow/purple. [ 132 ] J.W. met with Cst. Chow on July 21, 2014.

Some of the severe swelling had subsided; however, there continued to be yellow/brown bruising on J.W.’s face, including her left eye, her front clavicle area and neck. Injuries to her upper lip and chin were still visible. A wire had been affixed to her front teeth to hold a loose tooth in place. Similar to what Cst. McNeight observed the day before, Cst. Chow saw two deep horizontal bruises on J.W.’s neck which had previously been hidden by the swelling. [ 133 ] Dr. Tracey Pickett is a physician and she is also an examiner of the Sexual Assault Service. Dr.

Pickett was tendered as an expert witness in the area of sexual assault examination, emergency medicine and forensic medicine, including the mechanism of injury, the aging of bruises, the lethality of injury and the physiology and pharmacology of alcohol and drugs. [ 134 ] Dr. Pickett provided her opinion on two issues: the cause of the marks on J.W.’s neck; and whether J.W.’s life was endangered in the course of that injury being inflicted. In arriving at her conclusion, she reviewed various medical records, photographs of J.W. and Dr. Athwal’s report. [ 135 ] As to the cause of the marks on J.W.’s neck, Dr.

Pickett stated that the visible bruising, abrasions and marked swelling on J.W.’s neck are the result of at least one application of circumferential, or near-circumferential, compressive force. She was unable to discern whether the force is secondary to manual strangulation (with a hand or hands), ligature strangulation, or possibly both. The thin band of bruising was suggestive of a ligature mechanism. In addition, the swelling of the face and bleeding into the eye is often associated with a strangulation injury. Dr.

Pickett also stated that small abrasions found in the facial area, like those found on J.W., could be fingernail marks. These can come about from either the person doing the strangling or from a victim clawing at their face or neck in an attempt to get free of the strangulation. [ 136 ] Similar to Dr. Athwal, Dr. Pickett was not able to tell whether all of J.W.’s injuries had occurred at the same time. [ 137 ] On the question of whether J.W.’s life was endangered while this injury to J.W.’s neck was being inflicted, Dr.

Pickett answered “yes” and stated: This combination of injuries (significant facial trauma including bruising and a fracture, bleeding, potential inability to maintain airway, neck swelling), with or without intoxication, would have been potentially life threatening . The physical findings of facial swelling, bruising, fracture, abrasions and laceration are consistent with significant blunt force trauma, as could be sustained as the result of a physical assault, fall, seizure, or combination thereof; and With respect to Ms.

J.W.’s neck injuries specifically, extensive physical injuries including bruising, swelling and patterned injury are findings associated with loss of consciousness, seizures and dense memory lapse seen on the severe end of the spectrum of potential lethality in strangulation injury . [Emphasis added] [ 138 ] J.W. describes some of the long-term effects of her injuries; the bruising lasted about a month; because of her fractured jaw, she was unable to eat, talk or brush her teeth for some time; her teeth were loose for a period; she requires dental work; the placement of her teeth has been affected; she has anxiety and depression; the concussion caused her confusion; she still has a scar on her lips which has changed the shape of her mouth; and, she has scar tissue on her chin. (

g) Statements of Mr. Heppner [ 139 ] The Crown introduced two statements of Mr. Heppner dated August 14 and September 10, 2014. Both were admitted after separate voir dires addressing both voluntariness and/or Charter issues. (

i) August 14, 2014 Statement [ 140 ] On August 14, 2014, Cst. Willoughby spoke to Mr. Heppner over the telephone. She had earlier called him at the phone number that was identified in Mr. Morgan’s phone for “Darren Dominic”. It went to voice mail but she didn’t leave a message. After unblocking her number, another call to this number went unanswered. [ 141 ] Cst. Willoughby then received a phone call back from Mr. Heppner. Cst. Willoughby identified herself as with the VPD and

indicated that she was investigating an “incident” at the Motel on July 14. [ 142 ] Mr. Heppner told Cst. Willoughby that he didn’t know anything about the incident. He acknowledged that he had met Mr. Morgan and “some girls” at the station at Broadway and Commercial. He said that Mr. Morgan asked him to come and party with him and the girls at a motel. Mr. Heppner said that he didn’t go with them. He told Cst. Willoughby that he heard later from Mr. Morgan that he was looking for some guys that had beat up a girl. (ii) September 10, 2014 Statement [ 143 ] Mr. Heppner’s second statement was given to Csts.

Willoughby and Dykman at the West Vancouver Police Department station where he was being held on another matter. At the start of the interview on September 10, 2014, Cst. Willoughby again explained to Mr. Heppner that they were investigating an incident that took place at the Motel. Cst. Willoughby told Mr. Heppner that he was a suspect in the investigation. [ 144 ] During the interview, Mr. Heppner confirmed that he had taken a taxi to meet Mr. Morgan at Broadway and Commercial around 11:00 p.m. He indicated that Mr. Morgan was with a girl and another guy. He described both this girl and the other guy.

He said that Mr. Morgan and these other people were drinking alcohol. He told Cst. Willoughby that these people were going to get a room or something or go to some party and they invited him to come along. He decided to go to a different party where he was meeting friends in Burnaby around Brentwood Station. [ 145 ] Mr. Heppner then said that the next evening, he heard from Mr. Morgan that something had happened at the Motel, where some guys were involved and there was a big fight. Mr.

Morgan also told him that some girl got beat up over there and he ended up with her purse. [ 146 ] As he had said on August 14, Mr. Heppner again told the VPD officers that he was not at the Motel on July 14. Later during his statement, Mr. Heppner said that he had never been to the Motel. All, of course, were lies. CREDIBILITY OF J.W. [ 147 ] I have no hesitation accepting the evidence of J.W. She gave her evidence in a sincere, straightforward and honest manner.

While her recollection of certain events was certainly impaired to some degree by the amount of alcohol and drugs she had consumed that day, I found J.W. to have honestly tested the limits of her memory in relating what she did remember of that evening and the next day. In short, she recognized the limits of her memory and did not attempt to overreach or embellish in her true recollection of matters. [ 148 ] Importantly, her evidence on the most critical point - what happened just after she and Mr. Heppner were left alone in the Motel room by Mr.

Morgan - was not challenged in any way. [ 149 ] That said, J.W.’s direct evidence has limits here. She has absolutely no recollection as to what happened in the Motel room after she drank the vodka given to her by Mr. Heppner. CREDIBILITY OF MR. MORGAN [ 150 ] Similarly, I also found that Mr. Morgan was a very credible witness and I have no hesitation accepting his evidence. He gave his evidence in a straightforward and direct manner. As with J.W., he did not attempt to reach for evidence beyond his true recollection. [ 151 ] As the Crown points out, both Mr. Heppner and Mr. Morgan considered themselves friends.

This relationship with Mr. Heppner was still ongoing at the trial, at least from Mr. Morgan’s point of view. He was clearly reticent to even identify his “friend”, Mr. Heppner, at the trial. [ 152 ] Mr. Morgan’s evidence was also consistent with the video recordings and the electronic data. DEFENCE EVIDENCE [ 153 ] Both Mr. Heppner and his father, Edward Heppner, testified. Mr. Heppner’s evidence is as follows. [ 154 ] Mr. Heppner is 31 years old and has a Grade 9 education. His occupation is as an ironworker. In July 2014 he was not working and was using drugs and alcohol regularly. He had met Mr.

Morgan in Kitimat in mid-2013. [ 155 ] Mr. Heppner testified about his activities on July 13, 2014. After viewing a vehicle for sale in the morning, he returned to his father’s residence in Burnaby. He had spoken to Mr. Morgan earlier in the day and they discussed getting together perhaps for drinks. Later, Mr. Heppner told Mr. Morgan he would probably not be able to meet. [ 156 ] That evening, as part of a deal to sell his truck, Mr. Heppner obtained an ounce of “good” cocaine. He then contacted Mr. Morgan to say that he would meet him. Mr. Heppner did not have much money so he asked Mr.

Morgan to pick up liquor for him. Later still, Mr. Morgan told Mr. Heppner that he was in a park drinking and he asked Mr. Heppner to join him. [ 157 ] When Mr. Heppner arrived by taxi at the park, Mr. Morgan was with J.W., a person he had never met before. Shortly after, Mr. Morgan stepped away and told Mr. Heppner that J.W. was “just a piece of ass” and a “DTF” ("down to fuck") girl. Mr. Heppner told Mr. Morgan about the drugs he had in his possession.

[ 158 ] Mr. Morgan had a case of Cariboo beer and vodka at the park. The vodka was a cheap brand, Pure Ice, which Mr. Heppner did not like. Mr. Heppner vomited when he drank the vodka. Mr. Heppner testified he drank approximately a half case of beer, maybe six. He says Mr. Morgan and J.W. drank the vodka. [ 159 ] Mr. Heppner describes both Mr. Morgan and J.W. as “staggering” drunk. Additionally, they all consumed some cocaine in the park. They were running low on alcohol, having only two cans of Cariboo beer left. Mr. Morgan suggested they go to a motel where people “did not complain much”. Mr.

Morgan said he had to work the next day but that he would just stay up. They all agreed to go to the Motel. Mr. Heppner put the two remaining cans of beer in a plastic bag. Mr. Heppner had never previously been to the Motel. [ 160 ] Mr. Heppner’s evidence concerning their actions at the Motel upon arrival is consistent with the video evidence. In addition, he says that when they arrived he put the bag with two cans of beer beside a bush by the Main Street driveway while Mr. Morgan was checking in. [ 161 ] They all went to room 118 and drank the remaining beers. Mr. Morgan then ordered off-sales liquor delivery.

They did more lines of cocaine while they waited for the liquor. Approximately half an hour later, the liquor arrived. This included a case of Budweiser or Molson Canadian beer (in red/white cans and either a 12 or 15 can pack) and a bottle of Smirnoff vodka, either 26 or 40 ounces. The liquor was picked up by Mr. Morgan on Main Street just outside the northeast corner of the Motel property. [ 162 ] After the liquor arrived, the threesome continued drinking and consuming cocaine. [ 163 ] Mr. Heppner and J.W., and maybe Mr. Morgan, smoked in the room. One particularly significant aspect of Mr.

Heppner’s testimony was that since the room got smoky, he ripped some cardboard off the beer carton to prop the door open about a foot. He confirmed that otherwise, the door would automatically close. [ 164 ] Mr. Heppner figured out what Mr. Morgan and J.W. were doing when they went into the bathroom a few times. He says that he went out several times to get fresh air. [ 165 ] On another important point, Mr.

Heppner says that while he was walking around the parking lot, he noticed a fence at the northeast corner of the Motel property but that there was a path to Main Street either through or next to the hedge. [ 166 ] Eventually, Mr. Morgan said he was going home but would be back later. Mr. Morgan paid for the room for another night. Mr. Morgan left Mr. Heppner and J.W. in the room alone. [ 167 ] Mr. Heppner’s testimony about his later interactions with J.W. is as follows:

a) he was laying on one bed while J.W. was on the other. They began to talk;

b) J.W. asked Mr. Heppner how and where he met Mr. Morgan, which he answered;

c) J.W. asked Mr. Heppner if Morgan was just “playing” her, which he took to mean “hooking up” with somebody with no intention of a relationship;

d) Mr. Heppner did not want to answer the question. He sat up, grabbed the vodka bottle and had a drink;

e) J.W. came over and sat beside him on the bed. He asked J.W. if she wanted a drink. J.W. said yes so Heppner poured her a glass, about a quarter or half a glass and then pop (he thinks it was 7-Up). They both had a couple of shots and both did a line of cocaine;

f) J.W. asked him again if Mr. Morgan was “playing” her and asked him not to lie. J.W. said that that since Mr. Morgan couldn't “get it up” in the bathroom, she didn’t think he liked her that way. Mr. Heppner replied along the lines “aren’t you guys just hooking up?” to which J.W. laughed;

g) they continued drinking and talking;

h) J.W. said that his eyes were beautiful and that he was handsome. They ended up kissing on the bed by the bathroom. One thing led to another and they ended up having sex. Initially, J.W. was on top of him, however, they changed positions a few times. Mr. Heppner does not know if he ejaculated. After finishing intercourse, they passed out together. Mr. Heppner testified that J.W. absolutely consented to have sex;

i) they slept on the bed together. He woke up and moved over to the other bed while J.W. remained sleeping on the bed by the bathroom. He thought J.W. must have wanted "it" because it did not work out in the bathroom with Mr. Morgan. Mr. Heppner felt a little bit guilty because he had a girlfriend up north, however, he knew his girlfriend was cheating on him;

j) as he lay on the bed by the window, the cocaine began wearing off and he passed out. Mr. Heppner was dizzy and drunk when he woke up. He did a line of cocaine to wake up. His phone was dead. Sometimes when he slapped his phone on the back a few times it would turn on. When he woke up and looked outside, it was bright out. He wondered where Mr. Morgan was and when he would return. He was worried that if Mr. Morgan found out he had slept with J.W., Mr. Morgan would get mad since he was possessive of his girls;

k) he left room 118. Mr. Heppner says that when he left the room, J.W. was asleep and uninjured. [ 168 ] Mr. Heppner’s stated motivation for leaving the Motel was to look for Mr. Morgan at his home, which he knew was close by the Motel and east of Main Street. He also wanted to keep drinking. Mr. Heppner denies that he knew that Mr. Morgan was at work. He says that he was not part of the conversation that morning about Mr. Morgan going to work. [ 169 ] He also says that he planned to come back to the Motel if Mr. Morgan was not home.

For that reason, he says that he took the cardboard from the beer carton, that they were using earlier to keep the door open for the cigarette smoke, and slid it into the door so the

door would be open in case Mr. Morgan wasn't there when he returned. [170] Mr. Heppner also addressed the bulky white bundle that he was carrying when he exited alcove #3. He says that he grabbed abottle of liquor and a couple cans of beer. He did not want to get caught walking down the street with open liquor so he grabbed a towelwhich he used to wrap it up. He put the bottle inside the carton so that he could carry it. [171] Mr. Heppner explained his circuitous route around the Motel, rather than directly onto Main Street (which would have been themost direct way to reach Mr.

Morgan’s residence), by saying that it was very bright out and he was still drunk and disoriented. He got hisbearings at 6th Avenue and Main Street after which he headed east towards Mr. Morgan's house, a 2 to 3 minute walk. [172] When Mr. Heppner arrived at the front of Mr. Morgan’s building, he could not remember the right intercom number, as everytime he had been at the building before Mr. Morgan had a key. He did not know which balcony was associated with Mr. Morgan’s unit.He did, however, remember there was a rear door they had previously used to enter the building. Mr.

Heppner continued to the rear ofthe building where there was a parking lot with fences around it. [173] At the back of the building, he encountered two guys sitting on the steps. They were with a female, who Mr. Heppner thought herecognized as having been with Mr. Morgan before. [174] Mr. Heppner decided to ask these people if they were with or had seen Mr. Morgan. Mr. Heppner then describes that one of themales looked agitated and angry and began angrily questioning him. Then, he was set upon by some or all of these people. He recallsthat somebody was going through his pockets which made Mr.

Heppner concerned that they were trying to steal the drugs in his pocket.Mr. Heppner then says that he began punching back and swinging wildly. During the fight, he dropped the beer and vodka that he hadwrapped up and carried over. [175] In the middle of this fight, Mr. Heppner heard somebody yell "cops" and the sounds of sirens in the distance. He ran up the stairsand up to the alleyway. He did not want to get caught fighting while in possession of drugs and while intoxicated in a public place. Theother people also took off. [176] He walked to a park in the Fraser and Broadway area.

As he was walking through the park, he managed to turn his phone on. Hewas drunk and his left eye was swollen, almost shut. He then sent the 1:16 p.m. text to Mr. Morgan that read: “Dude your girl invitedguys over some young punks and they tried starting shit …” Mr. Heppner said he thought he had seen these guys and the girl with Mr.Morgan before. He thought maybe Mr. Morgan told them that Mr. Heppner had drugs. When he referred to "your girl" in the text, Mr.Heppner said that he meant the girl at Mr. Morgan's apartment building and not J.W. [177] Mr. Heppner said he felt tired and sick. His phone died again.

It was hard to see with his left eye. He had a fat lip which was cutand bleeding. He took a cab to his father’s home in Burnaby and arrived around 2:30 p.m. He walked in and plugged in his phone. Hisfather was sitting at the computer. [178] Edward Heppner, Mr. Heppner’s father, also testified and confirmed that his son had injuries to his eye and lip when he gothome on the afternoon of July 14. In cross-examination, he confirmed that his son had lots of friends in the Lower Mainland. [179] When Mr. Heppner got back to his father’s home, he saw messages from Mr. Morgan.

He was confused by the messages andthought Mr. Morgan was talking about what happened to him outside Mr. Morgan's residence. Mr. Heppner passed out and went to sleepuntil later that evening or the next day. When he woke up, he again saw messages from Mr. Morgan. [180] Mr. Heppner talked to Mr. Morgan the next day. Mr. Morgan told him he had been arrested for assault and robbery. Mr.Heppner told Mr. Morgan that, if the police asked about him, he should say that Mr. Heppner was not at the Motel. He said he did thisbecause he was worried about the police finding out he had drugs on him.

He did not want to bring “heat” on himself or his friends. CREDIBILITY OF MR. HEPPNER [181] Given that credibility is a significant issue in this case, I must assess Mr. Heppner’s evidence in accordance with R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [138] If I believe Mr. Heppner’s evidence or, even if I do not believe it, if I am left with a reasonable doubt, I must find that the Crownhas not met its burden and proved its case. However, even if I do not believe Mr.

Heppner’s testimony and I am not left in a state ofreasonable doubt by it, the burden remains on the Crown to prove its case beyond a reasonable doubt. [182] There are a number of aspects to Mr. Heppner’s evidence that lead me to conclude that his evidence is not credible. [183] Mr. Heppner was extremely vague, argumentative and evasive during cross-examination. As the Crown later argued, he did notpresent as an honest and forthcoming witness.

In particular, he refused to acknowledge activities in the video recordings which wereplain, including even his own identity in various parts of the video, namely when he left around 1 p.m. He refused to acknowledge that hewas wearing his red Nike shoes. He cited “vision problems” which were only selectively advanced as a reason not to acknowledgesomething or stating that something “appeared so”. [184] Mr. Heppner was inconsistent in the level of detail he offered in his testimony.

On a number of occasions, he indicated that theseevents occurred quite a while ago and he had difficulty recalling; yet, at other times, he provided excessive details, such as hisdescription of the fencing and layout of Mr. Morgan’s residence. [185] Further, Mr. Heppner lied to the VPD about his presence at the Motel not once, but twice. [186] Mr. Heppner described the phone call from Cst. Willoughby on August 14, 2014. Mr. Heppner said he received a couple of calls

and he called back. The police officer on the other end of the conversation said she was investigating an incident at the Motel involving Mr. Morgan. Mr. Heppner told the VPD that he had nothing to do with what went on in the Motel. Mr. Heppner said that he told the VPD this because his girlfriend was in the room at the time and he did not want her to find out that he had slept with J.W. Mr. Heppner did tell Cst. Willoughby that he had “heard something about it.” Mr. Heppner was not contacted again about the incident so he assumed the VPD had “dealt with it”. [ 187 ] This account strains credulity.

I fail to see how disclosing that he had been at the Motel with his friend, Mr. Morgan, and J.W., could have imitated at all to Mr. Heppner’s girlfriend that he had had sex with J.W. [ 188 ] Mr. Heppner also gave evidence at the trial concerning the September 10, 2014 statement he gave to Csts. Willoughby and Dykman. He was in Vancouver to pick up drugs and he stayed at the Travel Lodge in North Vancouver.

He picked up a large quantity of cocaine (18 ounces) and marihuana (4 pounds) which he put in an airtight container in the back of his vehicle. [ 189 ] Since it was a long trip back up north, he decided to stop at the Park Royal Starbucks for coffee. He described how he was stopped by the West Vancouver police for a Wildlife Act warrant. He was nervous about the police stop and then arrest because of the drugs in the vehicle. He was taken to the West Vancouver police station and arrangements were made for him to speak to a lawyer. As a result of these events, Mr.

Heppner thought it was likely he would be released on a promise to appear. [ 190 ] He was eventually taken upstairs at the police station to meet with two VPD detectives. The police officers began to interview him about an assault. Mr. Heppner says he lied and denied he had been at the Motel because he had drugs in the back of his car. He just wanted to cooperate so the West Vancouver police would be “nice” to him and he would be released. Mr. Heppner thought that if he told them about his presence at the Motel and the drug use that occurred there, the police might piece it together and arrest him for the drugs.

He was scared his vehicle would be impounded, so he denied being at Motel and having any involvement with the incident there. After he was released, he took a cab back to his vehicle at Park Royal and immediately headed back up north to Burns Lake with the drugs. [ 191 ] Yet, Mr. Heppner’s lies to the VPD on September 10, 2014 went far beyond simply denying that he was at the Motel. He concocted a story about other people being with Mr. Morgan and J.W. He made up facts concerning what J.W. was wearing. He made up a story that he went to another party.

On cross examination, this was brushed aside as a failure of memory which only improved after he had seen the video and transcript of his statement. In the end, even Mr. Heppner acknowledged that most of his statement was lies. [ 192 ] In addition, I agree with the Crown that the lies Mr. Heppner told to the VPD about not being at the Motel, to avoid disclosing his drug use and/or dealing, makes no sense. Even disclosing some drug use would not necessarily have highlighted his drug dealing at the time of his arrest. In addition, telling this lie would only have worked if he co

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