R. v. J.J., 2023 BCSC 1091

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. J.J., 2023 BCSC 1091 Date: 20230512 Docket: Registry: Rex v. J.J. Restriction on publication: A publication ban has been imposed under s. 486.4(1) of the Criminal Code prohibiting publication, broadcast or transmission in any way of information that could identify the complainant or a witness. This publication ban applies indefinitely. Before: The Honourable Mr. Justice Verhoeven Oral Reasons for Judgment Counsel for the Crown: A.J. MacDonell Counsel for the Accused: E.K.

Chesterley Dates of Trial: April 17-21; 24-28, 2023 and May 8-10, 2023 Date of Judgment: May 12, 2023 THE COURT: [ 1 ] J. J. is charged with two counts. The two counts are: Count 1, that on November 1, 2021, at or near [town], he sexually assaulted S.D. Count 2 is that on the same date at the same place, he committed assault of S.D. by choking, suffocating, or strangling her. [ 2 ] S.D. contends that she was sexually assaulted, including being choked, by J.J. in the early morning hours of November 1, 2021, in her own bedroom.

She says that J.J., her nephew, came into her bedroom when she was intoxicated and asleep or unconscious and had vaginal sexual intercourse with her, without her consent. She says she awoke to find J.J. having sex with her and choking her with his hand on her neck. [ 3 ] J.J. says that S.D. was an active and willing participant in the sexual activity. He says she consented to the sexual activity. He concedes that she did not consent to choking. He says that she consented to vaginal intercourse and that she also willingly provided oral sex to him.

He argues in the alternative that he had an honest but mistaken belief in communicated consent. I. Background [ 4 ] S.D. is currently 38 years of age. On November 1, 2021, she resided together with her six children in a single-family residence in [town]. She and her children occupied the upper floor of the two-level residence. There are three bedrooms on the upper floor. She occupied one bedroom and her younger boys and girls occupied the other two bedrooms. Her now 19-year-old son, D.J. lived with her.

He slept on a mattress in the living room. [ 5 ] S.D.'s sister C.S. lived in a downstairs suite, where there were two bedrooms. She lived there with her two sons, as well as her brother, who she said is quite ill. [ 6 ] Next to the downstairs suite is a carport which is partially enclosed with lattice screens. There is a door leading from the carport into the downstairs suite. Access to the upper floor is via a front door reached by proceeding up some concrete steps. The front door opens to an interior staircase, which then leads up to the upstairs suite.

Access to the upper floor is also available via a sliding glass door on the back of the second storey, off of an elevated rear sundeck. [ 7 ] On the evening before November 1, 2021, in other words, on October 31, 2021, which was Halloween, S.D. was socializing in the carport with R.B., who was at the time a boyfriend of S.D.'s sister, C.S. Also present was S.R. [ 8 ] S.D. and S.R. are both grandmothers of a now three-year-old child, D.D.'s parents are S.D.'s son D.J. and S.R.’s daughter, B. [ 9 ] S.R. arrived at about 9:30 to 10:30 p.m. She brought with her about 10 cans of beer.

She had consumed about two cans of a 12-pack at home before leaving.

[ 10 ] Soon after S.R.'s arrival, her daughter B. and the baby went upstairs to join D.J. As mentioned, D.J. normally slept on a mattress in the living room on the floor. [ 11 ] S.R. recalls that when she arrived, R.B. and S.D. and S.D.'s 16-year-old adopted son B.S. were present in the carport, all socializing together. S.D. testified that she and S.R. and R.B. started drinking together around 9:30 or 10:00 p.m. She was drinking what she described as a mix of coolers consisting of Smirnoff Ice and Mike's Hard Lemonade in cans. These are mixed drinks containing vodka and having about 5% alcohol.

She estimated that she drank 12 of these. She also drank some other kind of bottled liquor she referred to as "hard bar". She thought she had about two of these. What is clear from all of the evidence is that she had a lot to drink by way of alcoholic beverages over the course of the evening and into the early morning hours of November 1. [ 12 ] S.D.'s sister, C.S., arrived home at about 9:00 p.m. according to her own estimate. The only entrance to her suite is through the carport. When she arrived, S.D. and R.B. were socializing in the carport. She was tired after a long day. It was Halloween night.

Her two sons went to their father's residence to stay. She declined a drink. S.D. says that her sister C.S. does not drink alcohol. [ 13 ] C.S. says that when she came home, S.D. was probably on her first drink. S.D. had been out previously with her that evening trick or treating with the children. C.S. testified that she often socializes with her sister, who is normally a very responsible drinker. After saying hello briefly, C.S. went straight to bed and fell asleep. [ 14 ] R.B. testified that he was drinking Twisted Teas, another sort of mixed liquor drink.

He also recalled playing "beer pong" on a table with B.S. Beer pong is a beer drinking game involving beer poured into cups, spread out on a table, with ping-pong balls used to hit the targets. [ 15 ] S.D. did not recall B.S. being present. However, on the evidence of R.B., S.R., and J.J., he was present, at least later in the night. [ 16 ] At 12:50 a.m., J.J. sent a text message to S.D. via the Facebook Messenger app saying, "Can I crash on your couch" and "Shits gone sideways". The response from S.D. was, "What's going on man" and "Okay.

Where are you" and "Nephew" and "Nephew". [ 17 ] She then tried to call him, according to the record, at 12:57 a.m. Those calls did not go through. She sent messages saying, "Nephew call me" and "Please" and "Come". [ 18 ] J.J. sent messages in response at 1:02 a.m., saying, "I will tell you" and "Just wait". Around about that time, S.D. sent a message saying, "When you coming nephew".

J.J. sent a message saying "I’m at hospital" and including a photograph showing the RCMP officer in a corridor at the hospital. [ 19 ] J.J. sent another photo, which looks like it depicts a vehicle seen through some bars, and a message that said, "Tried to kill myself." At 1:27 a.m., S.D. responded with three messages, "Omg son" and "That's a big step son" and "Can call now". The response from J.J. at 1:27 a.m. was "One sec" and "Can I come see you". S.D. said in response by text message, "Ok" and "See you soon nephew." [ 20 ] J.J. sent messages saying "Yes" and "Soon" and "Do you have a usbc charger".

S.D. said, "Yes". He said, "Almost out". She said, "Ok" and "When will you be here". He said, "Almost there. I need cuddles. I'm [cold]" and "Lol" and "Hello". [ 21 ] He then arrived at the residence. [ 22 ] On cross-examination, J.J. agreed that he needed a place to stay. He testified he had been kicked out or in other words evicted from his residence, and that he was also looking for sympathy from S.D. He walked from the hospital to S.D.'s residence, which is about a 15-minute walk.

J.J. joined S.D., R.B., S.R., and B.S. in the carport. [ 23 ] Although he had already consumed a lot of alcohol earlier in the evening, (I will provide more detail later on) he had a Smirnoff Ice given to him by S.D., and at some point played beer pong, so he also consumed some beer. In addition, on his evidence, he later consumed a large amount of hard liquor or, in other words, distilled spirits. [ 24 ] J.J. had been in a marriage-like relationship or a common law relationship with S.D.'s niece, S.T., for about eight years, since 2013. He had a daughter from a previous relationship, H., who was born in 2011.

He and S.T. have two sons together. As of October 31, 2021, he and S.T. were separated but still living together in the same residence in [town], and were co-parenting the three children. [ 25 ] J.J. was working at a retail store, selling mobile phones and phone plans. He testified that he worked that day, although S.T. testified that he was off work and that they had gone to Costco earlier in the day to do some shopping, before the children arrived home from school. [ 26 ] S.D.'s youngest daughter A. was good friends with J.J.'s daughter, H., and was spending the night at the home of J.J. and S.T.

After going out trick or treating with the children, J.J. and S.T. had an argument with each other. J.J. had been drinking heavily. S.T. left the house at about 9:00 or 9:30 to join friends at a beach fire party, leaving J.J. at home with the children. While she was out, he sent her numerous text messages saying he loved her and that he was going to kill himself. She returned home immediately to find that he was in the process of attempting to swallow a handful of ibuprofen pills. She tackled him and tried to prevent him from taking the pills, apparently successfully. [ 27 ] He left the house. She called 9-1-1.

The police soon arrived and took J.J. to the hospital where he was seen by medical staff regarding his suicide attempt. He spoke to a sympathetic doctor for an hour or two. S.T. had made it plain that he was not welcome to return home. He therefore contacted S.D., as I earlier described, after failing to reach an old friend first. [ 28 ] S.D. testified that the drinking continued in the carport after J.J.'s arrival. There was a couch in the carport. All of the witnesses recall that S.D. was sitting on the end of the couch nearest the door leading to the downstairs suite.

J.J. was sitting next to her on the couch and R.B. was on the other end of the couch. S.R. was seated on a kitchen chair or barstool nearby, as was B.S. S.D. testified that she was "blacking out" by this time. She explained that what she meant is that she had no memory of events. She testified that she was

"in and out". She had a recall of some things. She recalled going upstairs with J.J. at the end of the evening and showing him where he would sleep: on the couch, in the living room. This must have occurred in the very early morning hours. [ 29 ] She recalls that after showing J.J. where he was to sleep, she then went down the hall and into the bathroom. [ 30 ] Initially in her evidence in chief, she testified that she had no recollection of anything after she went into the bathroom.

She testified that her next memory was of coming to, naked, with J.J. on top of her, having sex with her and choking her with his right hand on her neck. [ 31 ] She testified that she was terrified. She did not want to make any noise or make any movement. She said he pulled out, in other words he removed his penis from her vagina, and he ejaculated on her chest. When he was finished, he put her pants back on her while she continued to pretend to be asleep. He then fell asleep on her bed.

She testified that when she was sure he was asleep, she put on a shirt, not the one she had been wearing when she had gone to bed earlier, and she left the room. [ 32 ] She testified that in order to get out of the room, she had to move a laundry basket that was propped up against the door. She testified that she did not put it there. That was not where it normally was. She normally slept with the door open. [ 33 ] She testified that she had gone to bed fully clothed, wearing pants, underwear, a bra, and a top.

Either before leaving the bedroom or perhaps just after, but while she was still upstairs, she sent a text to R.B., who was still downstairs. He had sent a text message to her at 5:01 a.m. saying, "Good night sis." After the incident in the bedroom, she sent a single-word text to him at 5:21 a.m. saying simply " [R.]" She testified that she wanted to find out if he was still downstairs and would respond. He responded immediately with the word "Sup", by which he explained he meant, "What's up?" He also added, "Everything ok", obviously meant as an enquiry.

Those texts were at 5:21 and 5:22 a.m. respectively. [ 34 ] She went downstairs. She first spoke to R.B. R.B. testified that she was hyperventilating, sobbing heavily , and distraught. She was having difficulty getting words out. He brought her in to see her sister C.S., who was still sleeping. S.D. told her sister what had happened. She said that J.J. was still in her bed. [ 35 ] C.S. reports that when she was awakened by S.D., S.D. was freaking out, she was shaky, she was crying. She could not talk for five to 10 minutes.

She finally settled down and told her what had happened. [ 36 ] S.D. called 9-1-1 to report the incident at 5:54 a.m. After R.B. and B.S. heard what S.D. was saying about what had happened, they went upstairs and forcibly removed J.J. from the residence. He did not protest, or say that he had permission to be in the bed or in the bedroom or to remain in the house. He left the house without his shoes. He walked home and slept in a trailer or a mobile home parked on the driveway. [ 37 ] Constable Nixon of the [town] RCMP received the dispatch at 6:20 a.m. and went to S.D.'s residence very quickly.

He took S.D. to the hospital, where she underwent a forensic examination conducted by Renee Lewis, a qualified forensic nurse examiner. Constable Nixon took a statement from S.D. at the hospital at about 7:00 a.m. He returned to S.D.'s residence where he obtained witness statements and took photographs of the residence. [ 38 ] Constable Nixon arrested J.J. at about 1:40 p.m. at the retail store when J.J. was on a break. J.J. was polite and cooperative. From approximately 3:00 p.m. to 6:00 p.m., Constable Nixon obtained a recorded statement from J.J. at the RCMP detachment.

I ruled the statement voluntary and admissible on voir dire . The statement was admitted into evidence as part of the Crown's case. In the statement, J.J. admits he had sexual intercourse with S.D., but states that it was consensual. He also states that he "just read the signals wrong". [ 39 ] As I mentioned, in her evidence in chief, S.D. initially testified that she had no memory of events after she went into the bathroom. She said that at that point, she "blacked out".

Her next memory was of coming to with J.J. on top of her in her bed having sex with her and choking her, as I have said. [ 40 ] However, after her memory was refreshed by reference to her police statement provided to Constable Nixon at the hospital at 7:00 a.m., she recalled having a conversation with S.R. upstairs. She testified that just as she was exiting the bathroom, S.R. stopped her and told her that she had found J.J. in her bedroom. S.R. told S.D. that she had kicked him out; that is, evicted him from the house. [ 41 ] S.D. testified that she said to S.R., "Thank you.

The last thing I need is to get raped or molested." And then she went to bed. [ 42 ] S.R. testified that while J.J. was sitting next to S.D. on the couch in the carport, he kept trying to put his arm around S.D.’s waist. S.D. pushed him away, or tried to. At that point, S.D. was “drunk”, as S.R. put it, and was ready to "crash", as S.R. said, or in other words to sleep. S.R. relates that B.S. said "no more" and removed J.J.'s arm from S.D. [ 43 ] S.R. went into the downstairs suite to use the bathroom. While there, she heard footsteps going up the interior staircase to the second floor.

When she returned to the carport, she noted S.D. and J.J. were not present. She went upstairs. She looked in S.D.'s bedroom and saw J.J. standing near the bed. She told him that he should not be in S.D.'s bedroom and he should get out. She knocked on the bathroom door and asked S.D. through the closed bathroom door if she wanted her to tell J.J. to leave the house. S.D. said "yes". According to S.R., J.J. was by then standing in the kitchen getting a drink of water. She told him he had to leave. He said words to the effect of, "Oh, I just wanted to crash on the couch." [ 44 ] S.R. says J.J. was intoxicated.

He was slurring his words and smelled of alcohol. [ 45 ] According to S.R., J.J. went down the stairs, out the front door, and she locked the door behind him. She then went to sleep on the couch. She was woken up later by her daughter and son-in-law. Not long after this, the police arrived at the house. [ 46 ] J.J. testified in his own defence. What follows is a

summary of his evidence.

[ 47 ] He is currently 30 years of age. He testified that as of October 31, 2021, he was separated from his common law spouse, S.T., but they were still living together in the same home, co-parenting the three children. He says he worked at the retail store that day and left work around 5:10 p.m. He got a ride home from a coworker. He stopped on the way home and bought an eight-pack of beer and a 12-ounce bottle of vodka. [ 48 ] While out trick or treating with the children, he drank half of the vodka from a water bottle mixed with water and juice crystals. He had a beer before leaving.

When they returned, the children were put to bed. He continued drinking. [ 49 ] S.T. said she was going out with friends. They fought. She left. He continued to drink while their argument continued via text messages. As I described earlier and as he testified, he took a bottle of pills from the cupboard. He thought it was ibuprofen. He messaged S.T. that he was going to take the pills. He sent a photograph. She returned immediately. They argued some more. He attempted to swallow the pills. She prevented him from doing so. He left the house.

She called 9-1-1 and the police took him to the hospital. [ 50 ] He estimated that he was at the hospital for two and a half hours. He was discharged. He tried to contact an old friend, J., without success. He contacted S.D. and asked her if he could stay at her residence on her couch. She said yes. [ 51 ] I have previously related the text messages in that respect. [ 52 ] He walked to her home, about a 15-minute walk from the hospital. He testified that he had been at S.D.'s residence about a dozen times before for family gatherings. When he arrived, he went to the carport. He sat on the couch next to S.D.

She gave him a can of Smirnoff Ice. He drank some beer while playing beer pong with R.B. and B.S. He says S.D. was drinking Smirnoff Ice drinks and later cans of Jack Daniels whiskey and cola. S.D. put a blanket over their lower bodies. [ 53 ] He says R.B. produced a large 40-ounce bottle of whiskey. He says he, S.D., R.B. and B.S. passed the bottle around, each drinking straight from the bottle. He says he drank about a quarter of the bottle and was "quite intoxicated". S.D. gave him another Smirnoff Ice. He concedes that he put his arm around S.D. He was unable to explain why he did that.

He agrees that B.S. removed his arm from S.D. and that B.S. said words to the effect of, "Don't do that." [ 54 ] J.J. says that S.D. said at that point, "Don't worry about him, he's just being protective." [ 55 ] His evidence about the 40-ounce bottle of whiskey and this comment from S.D. was not put to any other witness. [ 56 ] He says that after the second Smirnoff Ice, R.B. gave him a beer. He drank half of the beer and began to fall asleep. He says that S.D. said, "Come with me.

I'll show you where you are going to sleep." They went upstairs via the exterior staircase to the front door leading to the interior staircase and the second floor. That staircase leads to the living room and kitchen area of the house, with the bedrooms being down the hallway. [ 57 ] He says that as they reached the top floor, both he and S.D. noticed that someone was on the couch. It was quite dark in the room and, according to J.J., the person could not be identified. He says S.D. said, "Someone is on the couch." She led him to her bedroom at the end of the hallway.

They entered the bedroom. [ 58 ] He said the TV was on in the bedroom, so there was some light being emitted from the television. He says S.D. raised her arms in the air, which was a gesture indicating that she wanted some help. He helped her take her sweater off. Nothing was said between them. She was wearing a T-shirt beneath the sweater. According to J.J., S.D. said, "I'll be right back, I have to use the bathroom," and he said "Okay". J.J. says that S.D. went into the bathroom. He says he removed his outer sweater; he was wearing two sweaters at the time.

He says he then went outside to smoke a cigarette, leaving the sweater he removed on the bed. S.D. was still in the bathroom at this time. He says he went out the front door. He denies seeing S.R. or having any conversation with her. [ 59 ] When outside, he searched his pocket for cigarettes. He found half a cigarette that he had put into his pocket previously. He was looking for the pack of cigarettes that he had bought earlier. He had a lighter with him. He smoked the half cigarette on the concrete step or stoop outside the front door and went back in the front door.

He says that while he was outside on the step, he heard no one inside the front door, and that he was on the concrete platform that is right outside the front door. [ 60 ] J.J. testified that he walked up the stairs, went into S.D.’s bedroom, and did not look into the living room. He says that S.D.'s door was open. S.D. was on her side, on the left-hand side of the bed, facing towards the door. He says neither of them spoke. He looked for his cigarettes. He was looking in the outer sweater that he had been wearing, but he could not find the cigarettes in the pocket.

It took him only about 20 seconds to search for the cigarettes. He says she did not stir. [ 61 ] He testified that he kissed her on the forehead. He was asked why he chose to do that, and he said, "I don't have an answer for that." He testified that S.D. rolled over onto her back and that her arm came up. He said her arm was "around my side in a pulling motion." No words were exchanged. He says she was still lying on the bed, he was still standing up, and they started kissing. He says he kissed her on the lips. She was kissing him back. His hand went down her pants. She did not resist in any way.

He says she made “pleasure noises”, as he put it, like moaning. He went to the other side of the bed and they continued kissing. [ 62 ] He says she took off her shirt and bra. He helped her with the shirt. Similar to before, she put her arms up. She took the bra off herself. He took off his own sweater and his shirt. She took her own pants off without any involvement by him. He removed his pants and shorts. He says they had sexual intercourse. [ 63 ] He says she was on her back and he was on top of her. He says that they did not remain in that position.

She then performed oral sex on him after the vaginal intercourse. He was asked how the oral sex started and he said he did not know, it just kind of happened. [ 64 ] He was asked how the oral sex ended. He testified that he ejaculated on her chest. After that, he put his shorts on and he laid down on the bed and fell asleep. He said she pulled the blanket on top of them. He says no one said anything during these sexual acts.

He says she did not cry out, she did not resist. He was asked why he believed that these activities were consensual. He noted that therewas no signs of resistance from S.D. She did not vocalize any objection. She did not say that she did not want to participate, and she tookan active

part in the sexual activity. She never said "no" or "stop". [65] He confirmed that he was not aware that she got out of bed. He did not sense that. [66] He testified that R.B. and B.S. shook him awake. One of them struck him, punched him, in other words, in the ribs with a fist andsaid, "It's time to get out" and "Hurry up, get the fuck out." They did not say why. He did not ask them why. He did not want analtercation, so he complied. He said that he was still feeling intoxicated, drowsy, and exhausted. He walked back to his own house.

Heleft without his shoes. [67] In his examination in chief, he mentioned nothing about the choking. On cross-examination, he was asked whether he chokedS.D. He responded by saying, yes, "in pleasure". He conceded that he put his hand around S.D.’s neck or on her neck and choked her, andthat she did not ask him to do that. [68] On cross-examination J.J. denied that S.D. was sleeping when he approached her in the bedroom. He denied that when he enteredthe bedroom after smoking the half cigarette on the stoop outside, that he did so because he planned or wanted to have sex with her.

Hetestified that the reason for going back into the bedroom was to search for cigarettes. [69] He does say, however, that he was planning to sleep in S.D.'s bed by her invitation. He denied putting a laundry basket in front ofthe door. He denied any conversation upstairs with S.R. or being told by her to leave the house, and in fact he denied seeing her at allupstairs. II. Legal Principles [70] I refer to the legal principles relating to sexual assault generally in R. v.

Conway, indexed as 2019 BCSC 489, affirmed by theCourt of Appeal, 2021 BCCA 460, with specific reference to the legal principles I enunciated: para. 67 of the Court of Appeal decision. [71] I adopt the statement of legal principles set out in Conway at paras. 25 through 30 and para. 32: Legal Principles [25] A leading authority is the decision of the Supreme Court of Canada in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R.330 [Ewanchuk]. That decision firmly establishes that there is no such thing as implied consent in Canadian law. The Court reviewedthe legal principles applicable to sexual assault offences.

On behalf of the majority, Major J. stated at para. 23: A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reusand that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch,knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [26] As to the actus reus, Major J. added: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused'sactions were voluntary.

The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: [citations omitted] 26 The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mindtowards the touching, at the time it occurred: [citations omitted]. … 29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed bythe trial judge, or jury, in light of all the evidence.

It is open to the accused to claim that the complainant's words and actions, before andduring the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If,however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown hasdischarged its obligation to prove the absence of consent. 30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including anyambiguous conduct.

The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct isconsistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perceptiononly arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. 31 … [T]he trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option.

Ifthe trier of fact accepts the complainant's testimony that she did not consent, no matter how strongly her conduct may contradict thatclaim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. … 42 …the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, alack of consent on the part of the person touched. [citations omitted].

49 In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – "consent" means that thecomplainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. … [27] A defence based upon honest but mistaken belief in consent requires some plausible evidence in support, so as to give an air ofreality to the defence: Ewanchuk, paras. 56, 64. [28] The relevant principles were neatly summarized by Lamer J. for the court in R. v.

Davis, (SCC), [1999] 3S.C.R. 759 [Davis]: 80 The defence of honest but mistaken belief in consent is simply a denial of the mens rea of sexual assault: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 44; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120, at p. 148.The actus reus of sexual assault requires a touching, of a sexual nature, without the consent of the complainant. The mens rea requiresthe accused to intend the touching and to know of, or to be reckless or wilfully blind as to the complainant's lack of consent: Ewanchuk,supra, at paras. 25 and 42.

In some circumstances, it is possible for the complainant not to consent to the sexual touching but for theaccused to honestly but mistakenly believe that the complainant consented. In these circumstances, the actus reus of the offence isestablished, but the mens rea is not. 81 Before the defence can be considered, there must be sufficient evidence for a reasonable trier of fact to conclude that (1) thecomplainant did not consent to the sexual touching, and (2) the accused nevertheless honestly but mistakenly believed that thecomplainant consented: see R. v.

Osolin, (SCC), [1993] 4 S.C.R. 595, at p. 648, per McLachlin J. In other words, giventhe evidence, it must be possible for a reasonable trier of fact to conclude that the actus reus is made out but the mens rea is not. In thesecircumstances, the defence is said to have an "air of reality", and the trier of fact, whether a judge or jury, must consider it. Conversely,where there is no air of reality to the defence, it should not be considered, as no reasonable trier of fact could acquit on that basis: see R.v.

Park, (SCC), [1995] 2 S.C.R. 836, at para. 11. [29] In a case where the accused clearly bases his defence on voluntary consent, and testifies that the complainant was an active,eager or willing partner, whereas the complainant testifies that she vigorously resisted, the question is generally simply one of credibility,of consent or no consent: R. v. Park, (SCC), [1995] 2 S.C.R. 836, at para. 26 [Park]. In such cases, there is likely noair of reality to the defence of mistaken belief.

There is no air of reality to the defence where it is not possible to splice together theevidence to create a third version of events in which the accused honestly but mistakenly believed the complainant consented: Davis,para. 85, citing Park. [30] The defence of mistaken belief in consent is constrained by s. 273.2 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. At thematerial time, the

section was 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 theactivity that forms the subject-matter of the charge, where (

a) the accused's belief arose from (

i) the accused's self-induced intoxication, (ii) the accused's 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 complainantwas consenting. . . . [32] Therefore, as I have said, this case is about the third element of the actus reus: whether the Crown has established the absence ofconsent of the complainant, beyond a reasonable doubt, which is determined by reference to the complainant's subjective internal state ofmind towards the touching, at the time it occurred. [72] In Conway I set out principles from the decisions of the Supreme Court of Canada in R. v.

W.(D.), [1991] 1 S.C.R. 742, , and also in a Court of Appeal decision building on W.(D.), R. v. C.W.H. (1991), 68 C.C.C. (3d) 146, (B.C.C.A): [33] The Crown must establish lack of consent beyond a reasonable doubt. The burden never shifts from the Crown to prove everyelement of the offence beyond a reasonable doubt. Therefore, it is not simply a matter of comparing the evidence of A.B. andMr. Conway, and deciding who is worthy of belief and who is not. [34] In R. v.

Heidemann, 2009 BCSC 1829, I stated: 73 As I have noted, the primary issue is whether the complainant consented to the sexual acts in issue. […] As the matter is a contestof credibility where the complainant says there was a lack of consent on some occasions and the accused says that there was consent atall times, it is for the Crown to prove lack of consent beyond a reasonable doubt. In relation to credibility particularly where the accusedhas testified, I must be mindful of the instructions that I would give to a jury in a case such as this as set out in the decision of theSupreme Court of Canada in R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397. In that decision, Cory J. for the majoritystated at p. 409, that in such circumstances, the jury should be instructed on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 74 Both counsel as well referred to the decision of the British Columbia Court of Appeal in R. v. C.W.H., (BC CA),[1991] B.C.J.

No. 2753, 68 C.C.C. (3d) 146 (B.C.C.A.) and, in particular, comments of Justice Wood, for the court at p. 155, as follows,after referring to the decision to which I just referred: I would add one more instruction in such cases which logically ought to be second in the order, namely, if, after a careful consideration ofall of the evidence, you are unable to decide whom to believe, you must acquit. [33] In R. v.

Barton, 2019 SCC 33 at para. 92, the Supreme Court of Canada emphasized that honest but mistaken belief shouldproperly be referred to as honest but mistaken belief in communicated consent, and rejected again notions of assumed or implied consent. III. Analysis [73] I have no hesitation in accepting and relying on the evidence of S.D. She was a credible witness. I accept that she testifiedtruthfully and to the best of her ability, and to the best of her recollection of the material events.

She was utterly honest in acknowledgingthe gaps in her memory and in her evidence, based upon her state of intoxication on the evening in question. [74] I accept in particular her evidence that she did not consent to sexual activity of any kind with J.J. I accept that, as she says, shesimply awoke to find J.J. having sex with her and choking her.

I accept, as well, her assertion that she would never have agreed to havesex with J.J., her nephew, who she had known for years. [75] J.J. argues that since she "blacked out" and has no memory of what happened, her evidence about this and about her lack ofconsent is simply a reconstruction after the fact. However, her evidence as to the nature of her relationship with J.J. and whether in thatcontext there is any possibility, even remote, that she would ever agree to have sex with him, is worthy of considerable weight.

It doesnot mean that voluntary sexual relations between them would be an impossibility, but does render it highly unlikely, and is thussupportive of her evidence that she did not consent. [76] As the text messages between S.D. and J.J. show, in giving permission to J.J. to sleep on her couch, she was simply being a kindand caring aunt, agreeing to help a person in need and in distress. [77] It is not correct to say that S.D. has no relevant memory of the events preceding the sexual activity. I accept that, as she says, shesimply showed J.J. the couch that he would be sleeping on and then went to the bathroom.

She also recalls the conversation with S.R.when she was in the bathroom. She recalls clearly her own reaction on waking to find J.J. having sex with her; that she was terrified, thatshe was frozen with fear, and that she pretended to remain asleep while he continued to have vaginal intercourse with her, that he pulledout and ejaculated on her torso, and so on. These are vivid memories that are inconsistent with having supposedly consciously agreed tohave sex with J.J. just moments before. [78] There is persuasive evidence as to her state of mind previous to the sexual activity.

S.R. struck me as a very solid, reliable,credible witness. I accept her evidence that when they were downstairs in the carport, S.D. was pulling away or resisting J.J.'s attempts toput his arm around S.D. For reasons I will explain, J.J.'s evidence is not credible. I reject his evidence that S.D. said, "Don't worry, he'sonly being protective" about the intervention of B.S. So even in an intoxicated state, S.D. resisted even mild physical advances from J.J. [79] The evidence of the conversation between S.R. and S.D. at the bathroom is also significant.

While the details of theirconversation differ, the crux of it is that S.D. definitely did not want J.J. in her bedroom. This is evidence of her state of mind at the time.It is inconsistent with the idea that quite spontaneously she would minutes later agree to have sex with J.J. [80] The defence argues that S.D. did not actually recall the conversation with S.R. J.J. argues that S.D. had a conversation with S.R.the next day where S.R. told her about the bathroom conversation. This amounts to an allegation of recent or, in other words,after-the-fact fabrication.

However, the police statement S.D. made at 7:00 a.m. at the hospital also contains this evidence. The statementwas made before she had any opportunity to speak with S.R. The statement is admissible solely to rebut the allegation of recentfabrication. [81] The evidence of S.D.'s actions and her demeanour immediately after the incident strongly supports her evidence. I referredpreviously to the evidence of R.B. and C.S. about S.D.'s condition when she went downstairs.

It is clear from their evidence that she wassobbing, had difficulty speaking, and was very distraught. [82] S.D. called 9-1-1 to report the assault almost immediately. I allowed the recording of the 9-1-1 call into evidence as demeanourevidence and as narrative, as circumstantial evidence. It is not evidence for the truth of its contents. In my ruling, I referred to the helpfulsummary of the law found in R. v. Comin, 2022 BCSC 548 at paras. 10 - 29, a decision of Madam Justice Ker. [83] The audio recording is clear evidence that S.D. was severely emotionally distraught when she made the call at 5:54 a.m.

She wassobbing, her speech was halting and high pitched. [84] Constable Nixon also noted that S.D. was upset and appeared to be in a state of shock when he first dealt with her. [85] The forensic nurse examiner Ms. Lewis noted that she was tearful, her eyes were downcast, and she was rubbing her hands upand down her legs as she spoke. Ms. Lewis also noted petechiae, which is a specific form of bruising, on her neck, consistent with theapplication of pressure or suction. [86] J.J. admitted that he choked S.D. without her consent. In this respect then, he corroborates the evidence of Ms. Lewis and of S.D.

[ 87 ] In

summary, there is a considerable body of circumstantial evidence strongly supporting the evidence of S.D. that she did not consent. [ 88 ] The defence argues that S.D. could have consented to the sexual activity and then immediately had regrets. She could have been concerned that J.J. would be found in her bed or that her children or family members would learn of it and of the sexual activity, and that it would be embarrassing or shameful for her. The defence argues that her reports of rape was or could be a means to avoid responsibility for her actions.

I reject this contention, which I consider entirely without foundation, and inconsistent with the evidence of lack of consent that I have described and that I accept. [ 89 ] The defence argues similarly that S.D. did or could have manufactured her allegations as a means to obtain sympathy. The defence points to a video S.D. made at some later stage and which she posted to Facebook, in which she emotionally describes her pain and trauma. S.D. denied that in posting the video, she was seeking sympathy or attention. Since I reject the defence theory, I put no weight on the video one way or another.

It is not relevant. [ 90 ] The defence relies on the evidence of S.T., who testified that S.D. has a reputation in the community for lying and being manipulative and "doing things that people should not do." No details were provided about that. I put no weight on this evidence. This suggestion was not put to any other witness. Notably it was not put to S.D. herself, it was not put to her sister, C.S., or to S.R., or to R.B. S.T. is not an impartial witness. J.J. is the father of her children. They remain friends. She is financially dependent on him to some degree.

She has very strong reasons to reject S.D.'s shocking assertions, and to favour J.J. [ 91 ] Also, S.T.'s evidence is not reliable. A central feature of her evidence concerned a telephone conversation she had with S.D. at 6:04 a.m. on November 1st. S.D. had attempted to call her at 5:43 a.m. The call did not complete. At 5:54, S.D. called 9-1-1. She spoke with S.T. at 6:04 a.m. In her evidence, S.T. insisted that S.D. called her before she called 9-1-1. S.T. said that she repeatedly told S.D. to call the police if what she was saying about J.J. was true.

This evidence is inconsistent with the record, and cannot be correct. [ 92 ] Turning to the evidence of J.J., in particular, J.J. was not a credible witness. I reject his testimony as to all matters where his evidence conflicts with that of other witnesses who I consider credible and reliable, notably S.D. and S.R. [ 93 ] J.J.'s evidence would be difficult to accept on its face. On his evidence, he had no prior thought of having sex with S.D., his or perhaps then his former spouse's aunt, but then decided to kiss S.D. while she lay on the bed. There is nothing to suggest this approach was invited in any way.

He himself cannot explain why he did this. Yet on his evidence, this kiss led almost immediately to active sexual intercourse and even oral sex. All of the circumstances render this quite implausible. [ 94 ] His evidence at trial is inconsistent with his police statement in several respects. I pause to observe that J.J. had the right to remain silent. He had no duty to speak to the police. Therefore, the police statement is only relevant for what J.J. chose to say to the police, not for what he chose not to say: R. v.

Turcotte , 2005 SCC 50 at paras. 44 - 46 and 55 - 57 . [ 95 ] Turning back to the police statement. First, Constable Nixon put to J.J., S.R.'s evidence that she evicted him from the house, that he went out the front door, and she locked the door behind him. He repeatedly asked J.J. how he got back into the house.

That conversation is as follows (page 31): Q: But I think it's important to know did she not lock the door or or did you go in the patio door which one is it dude A: We've always had this relationship where with our houses we we always had the thing where only strangers knock Q: Mhmm A: So I got a few houses down the road and I realized that I didn't have my cigarettes on me so I thought I had left them on the counter Q: Kay A: Front door was unlocked Q: Where were your cigarettes A: Never ended up finding them Q: Kay so you go in the front door what happens next A: Just looking for the cigarettes quietly Q: Mhmm and then what did you go into [S.D’s] bedroom next A: Yeah cause I remembered that um like think I was in there briefly Q: Mhmm A: (indiscernible) cigarettes had fallen outta my pocket or [ 96 ] At trial, J.J. said that he did not "get a few houses down the road." He says he went outside onto the step, just outside the door, and only long enough to smoke the half cigarette, and then went back inside. [ 97 ] I note that his statement to the police that he left the house and got some distance away before returning is consistent with the evidence of S.R., which I accept, that she told him to leave and that he did.

His evidence that he stepped out only briefly in order to have

the cigarette, and there was no interaction with S.R. at all, is irreconcilable with her evidence. [98] A second example: Constable Nixon asked about the sexual intercourse.

The discussion is as follows (page 33): Q: Okay what about the reason you pulled out A: That's something I've always done since I discovered vaginas Q: Okay A: And having sex myself it's just just a reaction Q: Like is it like a turn on thing like A: More of a I don't want more children that kind of thing Q: Okay so you're not shooting blanks then A: I've been doing that since I was fourteen though Q: Okay so you're not shooting blanks then A: No [99] So he says the reason he "pulled out" was that he did not want to ejaculate in S.D.'s vagina in order to avoid a pregnancy.

At trial,he says that after the vaginal intercourse, S.D. provided oral sex, and then he ejaculated on her chest. This action is not explicable by aconcern about pregnancy. [100] He testified that the things he said to Constable Nixon were untrue. He testified that he left out some details when speaking to thepolice officer, but this is not a detail that was left out, and it is a very odd thing to choose to lie about. [101] J.J. is lying about the oral sex in order to add some vivid credibility to his contention that S.D. was an active and willingparticipant.

I observe that his evidence about oral sex was not put to S.D. in cross-examination. In the circumstances of this case, thatfurther reduces any weight that the evidence might otherwise have. [102] The third point about the statement is this. The general tenor of his police statement, again focusing only on what he actually saidin response to Constable Nixon's questions, is that he did or at least may have "read the signals wrong".

At trial, his evidence was thatS.D. was an enthusiastic participant. [103] On his evidence at trial, there is no room for ambiguity about her consent, and once again his evidence at trial is inconsistent withhis statement. [104] I reject J.J.'s evidence that when he and S.D. got upstairs, there was an unidentified person on the couch and so she led him intothe bedroom. Even in low light, S.D. would likely have recognized such a person. If the couch were needed for J.J. and occupied bysomeone, such as perhaps her son D.J., she could have told him to move to his mattress on the floor where he normally slept.

I do notaccept that she would invite her nephew into her bedroom to sleep in her bed. I accept her testimony that she expected that S.R. wouldsleep with her, J.J. was supposed to sleep on the couch, as he had requested and as she had agreed. The two grandmothers sharing the bedwould certainly make some sense. In my view, even drunk, S.D. would not invite J.J. to sleep in her bed, in place of S.R. [105] J.J. explains that he did not protest or quarrel with R.B. and B.S. when they rousted him out of S.D.'s bed and sent him out thedoor because he wanted to avoid an altercation.

The evidence is that he quickly departed without his shoes and walked home in coldweather. [106] The Crown argues that J.J. was punched and forcibly removed and that, given J.J.'s evidence that S.D. had invited him to sleep inher bed and had engaged in consensual sexual relations, the circumstances cried out for an explanation from J.J. This is a fair point, butnonetheless I choose to put no weight on J.J.'s post-offence conduct in this respect. Other explanations must be considered: R. v. White,[1998] 2 S.C.R. 72, at para. 57. There is no evidence that R.B. and B.S. accused J.J. of rape.

His evidence could beexplained by a desire to avoid an altercation where he was outnumbered, or simply a recognition that he should not have been sleeping inS.D.'s bed, or that he was no longer welcome as a guest in the home, for whatever reason, and not necessarily that he was guilty of sexualassault. [107] In

summary, I reject J.J.'s evidence that S.D. consented to the sexual activity. [108] I also reject J.J.'s alternative submission that if she did not consent, he had an honest but mistaken belief in communicatedconsent. He had no such honest belief. S.D. did not communicate consent in any way. Rather, as she maintains, she was asleep. [109] Accordingly, she was unconscious and incapable of giving consent: R. v. J.A., 2011 SCC 28 at para. 66. [110]

Section 273.2 of the Criminal Code, R.S.C. 1985, c. C-46, is also relevant and is 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 theactivity that forms the subject-matter of the charge, where (

a) the accused's belief arose from

(

i) the accused's self-induced intoxication, (ii) the accused's recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

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. [ 111 ] I accept that J.J. was heavily intoxicated at the time. If, contrary to my conclusion that he had no honest belief in consent, he had an honest belief, then s. 273.2 of the Code bars application of the defence on each branch of s. 273.2 . [ 112 ] J.J. does not argue that S.D. verbally assented to sexual activity. He says she communicated consent by her actions.

However, I reject his evidence that she communicated consent at all, nor does his evidence leave me with or raise a reasonable doubt about that. On the basis of all of the evidence, considered as a whole, I have no reasonable doubt as to the guilt of J.J. on Count 1, the sexual assault of S.D. [ 113 ] J.J. is also guilty of Count 2, that is the assault of S.D. by choking her. That offence is supported by S.D.'s evidence, the physical evidence, and J.J.'s own admission that he choked S.D. without her express consent. As the authorities make plain, consent is required for each and every sexual activity. IV.

Conclusion [ 114 ] J.J., would you please stand. For the reasons I have given, I find you guilty of both charges. “Verhoeven J.”