R. v. O.V.O, 2023 BCSC 674

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. O.V.O, 2023 BCSC 674 Date: 20230206 Docket: 87740-2 Registry: Nanaimo Rex v. O.V.O Restriction on Publication: Pursuant to 486.4 C.C.C. Before: The Honourable Mr. Justice Giaschi Oral Reasons for Judgment Counsel for the Crown: N.P. Barber Counsel for the Accused: M. Forhan Place and Date of Trial/Hearing: Nanaimo, B.C. March 28 and 29, 2022 October 20 and 21, 2022 and November 14-17, 2022 Place and Date of Judgment: Nanaimo, B.C.

February 6, 2023 Table of Contents Introduction .. 3 Evidence and Facts .. 4 November 2 to 3, 2018 . 4 Complainant’s Evidence . 4 Defendant’s Evidence . 10 November 5, 2018 to September 27, 2019 . 13 Complainant’s Evidence . 13 Defendant’s Evidence . 16 September 28 2019 . 18 Complainant’s Evidence . 18 Defendant’s Evidence . 20 Legal Principles .. 22 Essential Elements . 23 Consent 23 Reasonable Doubt 25 Credibility and Reliability. 26 Submissions .. 27 Analysis .. 28 Conclusion .. 33

Introduction [ 1 ] THE COURT: The defendant is charged with two counts of sexual assault as follows: Count 1 O.V.O, on or about the 3rd day of November, 2018, at or near Nanaimo, in the Province of British Columbia, did sexually assault T.S., contrary to

Section 271 of the Criminal Code . Count 2 O.V.O, on or about the 28th day of September, 2019, at or near Nanaimo, in the Province of British Columbia, did sexually assault T.S., contrary to

Section 271 of the Criminal Code . [ 2 ] The allegations, particularly Count 2, arise in the context of an ongoing relationship between the complainant and the defendant. [ 3 ] The trial of this matter commenced on March 28, 2022. During the course of the cross-examination of the complainant on March 29, 2022, the second day of the trial, the defendant advised he wished to bring applications for an order permitting him to adduce sexual history evidence, pursuant to s. 276(2) of the Criminal Code , R.S.C. 1985, c.

C-46 [ Criminal Code ], and to adduce evidence of records concerning the complainant in his possession, pursuant to s. 278.92 of the Criminal Code . The trial was then adjourned to permit, inter alia, the complainant to obtain legal counsel, as is her right under s. 278.94(3) of the Criminal Code . [ 4 ] A voir dire was held on October 20 and 21, 2022.

Oral reasons were rendered on November 7, 2022, allowing, among other things, the defendant to admit into evidence certain records concerning the complainant in his possession and to adduce evidence and cross-examine the complainant on sexual encounters between the defendant and the complainant from November 3, 2018, to and including September 28, 2019. In

summary, I determined that the evidence sought to be admitted was relevant to the issues of credibility in respect of both counts and was necessary to context and narrative in relation to Count 2. Evidence and Facts [ 5 ] The only witnesses at the trial were the complainant and the defendant. They gave significantly different versions of the relevant events. The defendant does not deny that he and the complainant engaged in sexual activity on the dates in question. He says, however, that the sexual activity on both dates was consensual. Alternatively, he says that he had an honest but mistaken belief that the complainant consented to the sexual activity. [ 6 ] I intend to group my

summary of evidence into three headings: the events of November 2 to 3, 2018, which relate primarily to Count 1; the events of November 5, 2018, to September 27, 2019; and finally, the events immediately surrounding September 28, 2019, which relate to Count 2. November 2 to 3, 2018 Complainant’s Evidence In Direct [ 7 ] Concerning the events of November 2 to 3, 2018, and in respect of the complainant's evidence in direct, the complainant is originally from Zimbabwe. She lived in Nanaimo and attended Vancouver Island University from August 2017 to November 2019.

She met the defendant, who resided in Vancouver, on the Tinder app. They commenced a long-distance relationship via messaging apps and telephone. She testified there had been multiple discussions between them about expectations of sexual activity. She testified that her Tinder profile indicated she was not interested in sexual activity. She testified that she had been clear in text messages and phone conversations with the defendant that she was not looking for anything sexual. She then testified that she had taken a vow of celibacy and that the applicant was aware of this.

She was asked in direct to explain the vow of celibacy, and she replied that she wanted to start a new

chapter for herself, wanted to take her religion more seriously, and just wanted to refrain from any sexual contact. [ 8 ] After about six weeks or so of texting and telephone conversations, she suggested that the defendant come to Nanaimo to spend the day with her. She testified that there was a discussion about where he would stay in Nanaimo. She testified that he suggested he would stay with her, but she told him he could not as she lived in a shared house with four other women. It was therefore decided that he would stay at a bed and breakfast.

She further testified that during one of their discussions, he mentioned that he would bring massage oils. She reiterated to him that the visit was to see if they were compatible, not to have sex. [ 9 ] The defendant travelled to Nanaimo from Vancouver on the ferry. The complainant met him at the ferry terminal at 8:00 or 9:00 p.m. She drove him to his B&B where he dropped his bags. They then went to the Cactus Club for dinner. After dinner, she drove him back to the B&B. She testified that he suggested she come into the B&B with him, to which she agreed.

Once inside the B&B, the defendant suggested they play a knowledge memory game wherein if one of them answered a question incorrectly, they had to kiss the

other or give a foot or back massage. She testified that she agreed to play the game, although she was confused and anxious. She testified that they played the game for about 25 or 30 minutes. [ 10 ] The complainant testified that at some point, the defendant said he was good at performing oral sex and he wanted to make the night more pleasurable for her. She said that she initially replied no, but that he continued to ask and continued to brag about his proficiency at oral sex. She testified that she finally relented and told him, "If you want to prove this so badly, then fine".

She testified that they then started kissing and he eventually proceeded to perform oral sex. She testified that she saw the defendant remove his shorts and that, when he did so, she attempted to move up the bed, but he pulled her back towards him and got on top of her. She testified that she told him, "No, don't do this," and tried to push his thigh. She testified that she told him "no" three times. She testified that he did not stop, but continued to penetrate her. She testified that she was crying and pushing at his thighs, and even scratched his thigh.

She testified that he rolled her over onto her stomach and continued to penetrate her. She testified that she was crying and told him, "Please don't do this. Please stop. Please don't come in me". At this point, she said he retrieved a condom, then came back to the bed and finished. After the act, she said he slapped her ass, said, "That was great", then left the bedroom to have a shower. After his shower, he returned and said to her, "I told you I would make this night memorable". He then went to sleep.

She testified that she just lay on the bed and spent the entire night crying. [ 11 ] She testified that the next morning, around 7:00 a.m., she contacted a friend by telephone. The friend contacted the police. The complainant says that she then woke the defendant and screamed at him that she had told him to stop. She then left the B&B and attended at the hospital. [ 12 ] The complainant testified that the defendant later sent her a text message apologizing and that they also had telephone conversations in which he apologized. The text messages between the two were entered into evidence.

They include the following exchange on November 3, 2018: Defendant: I am truly sorry for everything Complainant: Its okay … I’m alright. I just needed to process and reconcile this morning with myself. Like I said, sex is a big deal for me and isn’t something I take lightly - regardless of who its with or when. For what its worth, it was great meeting you last night . Have a safe trip back and enjoy Drake. Defendant: That’s ok. Thanks a lot. I totally understand. My apologies about everything cos am responsible for all that happened. I hope to see u again.

Hugs! [Emphasis added.] [ 13 ] The complainant testified in direct that she was in shock when she wrote her side of this conversation. [ 14 ] The tone of the text messages changed somewhat the following day. They began on November 4, 2018, with the following exchange: Defendant: Hello Complainant: Hi Defendant: How are you I really apologize for everything that happened between us. It’s totally my fault and am hoping I can be given a chance to correct my wrongs. I admit I made a huge mistake and don’t wanna loose [sic] you. Complainant: What’s everything?

Defendant: Listening to you when you said stop and I continued . That just killed the trust you had for me. Complainant: It absolutely did. I can’t do this dayo Complainant: I said no multiple times before you penetrated me. How did you not hear that ???? Defendant: Please can you reconsider. Give me another chance. [ 15 ] The text messages continued with the complainant writing that the defendant knew from the beginning that she did not want to have sex, that she was celibate, and that she had told him that if sex was a priority for him, he should walk away.

He replied that his mind was some place else and that he should have paid more attention to her. The messages then continued as follows: Complainant: You couldn’t have possibly been in a different headspace if you had enough sense to use a condom. You fucked me raw. Without my consent! Defendant: I am totally responsible for not trying to shy away, but you need to understand that I adore u and wanna be with you. U

totally make me happy. How can we move past this situation. Even if it takes time for you to trust me, I am willing to wait. I totally believe in us and know we are gonna be okay. … Complainant: I don’t understand how you’re saying these things to me and asking me to breeze through rape . I guess I’m the one not comprehending things Defendant: I do and I truly regret my actions . Can we start afresh please? I will never expect u to breeze through it. All am asking is if we can start afresh. I made a stupid mistake and totally regret my actions . [Emphasis added.] [ 16 ] An agreed statement of fact was entered into evidence. The agreed facts are:

a) The complainant attended Nanaimo Regional Hospital on November 3, 2018, at 10:45 a.m. to see a forensic nurse examiner;

b) She was seen by a nurse at 1:05 p.m., and the examination was performed;

c) The complainant presented as subdued and occasionally crying;

d) The examination revealed two small lacerations; and

e) The observations contained in the agreed statement of facts are not more consistent with non-consensual intercourse than consensual intercourse. In Cross-Examination [ 17 ] In cross-examination, the complainant was asked whether she had ever abandoned her vow of celibacy and she replied that she had not. She further explained that, in regards to her vow, the defendant repeatedly told her she could start that next month.

She said that he repeated this over and over again, and that she was manipulated and coerced into having sex with him. (I note that it was at this point of the complainant's cross-examination that her testimony was interrupted to discuss concerns about s. 276 of the Criminal Code .) [ 18 ] The complainant initially testified that the plan for the evening was to meet for dinner and then to meet again the next day. She said that she had no intention of spending the night with the defendant, and that this was made clear in telephone calls and text messages.

However, she later admitted that she had an overnight bag with her. When asked if the bag contained clothing and a toothbrush, she answered, "Not really" and then evasively said it had a few items. It was not until her examination in re-direct that she said the bag had a change of clothes, and offered that she had the change of clothes in case she decided to stay the night with the defendant. [ 19 ] Concerning the game that the two played and the first kiss between them, the complainant was asked if the defendant forced her to kiss him. She replied, "I would say so" since it was a consequence of the game.

She also stated she did not want to kiss and that the kiss was not with her full agreement. [ 20 ] The complainant was asked how it was that her clothing was removed. She replied that the defendant bragged of his sexual prowess and kept asking and pushing for her to have oral sex, so she eventually relented and told the defendant he could perform oral sex. She nevertheless also said that the defendant forced her to do it. [ 21 ] The complainant was inconsistent in her evidence in cross-examination as to when she told the defendant to stop.

Initially she said she told the defendant to stop when he took his boxer shorts off. She later said she told him to stop both before and during penetration. [ 22 ] She testified that during intercourse, she lay limp and stopped moving. She denied participating in the act and said she was crying the entire time. [ 23 ] Concerning the messages and conversation with her friend, the complainant testified that she texted her friend immediately after the alleged assault and wrote that something had happened and asked the friend to come get her. The next morning the friend called her.

She says that she told the friend that she had had sex and that the friend told her that what happened was not sex. [ 24 ] The complainant agreed that after speaking with her friend, she woke the defendant, kicked him, and confronted him. She agreed that he did not seem to understand what she was talking about, that he was confused, and that all he heard her say was to not come inside her. [ 25 ] She agreed that after the incident, she sent a text to the defendant saying that it had been great meeting him. Defendant’s Evidence In Direct

[ 26 ] The defendant is originally from Nigeria. He emigrated to Canada in April 2017 and is currently on a work visa. [ 27 ] He confirmed that he and the complainant met on Tinder in August or September 2018. He testified that they began communicating daily, sometimes several times per day. He said that at first the conversations were surface level, but then became deeper. At times they talked for up to four or five hours. [ 28 ] The defendant confirmed that the complainant told him she was not interested in sex and that he should move on if that was his interest.

He testified that she told him she had been celibate for a while as she had been hurt before. He testified that he told her that sex was important for him, but not the ultimate. He testified that they also talked about their sexual preferences. [ 29 ] The defendant also confirmed the complainant's evidence of the circumstances of the arranging of their first meeting. The only difference was that the defendant testified they had discussed the possibility of the complainant staying the night at his B&B.

He said that the complainant told him that if the night goes well, she might stay. [ 30 ] The defendant confirmed that the complainant picked him up at the terminal and drove him to the B&B to drop his bags. They then went to dinner, which he also confirmed went well. He testified that the two of them were flirting during the dinner. [ 31 ] Following the dinner, they discussed what they should do next. He suggested they return to the B&B and she agreed. [ 32 ] When they arrived at the B&B, the defendant went to take a shower and the complainant said she would get more comfortable.

He could not recall if the complainant had changed her clothing when he got out of the shower. He had, however, noticed that she had a backpack with her in the car. [ 33 ] The defendant confirmed the complainant's testimony that they played a general knowledge game at his suggestion. They played the game and at one point she got a question wrong and he suggested that she had to kiss him for two minutes. She told him that was not how a first kiss should go, but they did kiss. They continued to play the game, which resulted in more and longer kisses.

The defendant testified the complainant voiced no concerns about the kissing and reciprocated. The defendant further testified that during the course of the game, they had each been required to remove items of clothing. He testified that when she got a question wrong, he gave her the choice of paying a small amount of money or taking off an item of clothing and she chose to take off clothing.

She had removed her pants and shirt, and he was in his boxer shorts and a tank top. [ 34 ] The defendant testified that after the kisses, they started touching, and then he asked her if it was okay for him to perform oral sex. She replied that was fine. He performed oral sex. The oral sex lasted no more than 25 minutes. He then removed his tank top and got on top of her. They began kissing and he penetrated her. He testified that she said to him to not come inside her, to get a condom. He stopped, retrieved a condom, and then they resumed intercourse and kissing.

He testified that at one point, he asked her if they could change positions and she agreed. They changed position with him behind her. He testified that she was holding the sheets and moaning throughout. He was adamant that the complainant never told him to stop, did not try to push him off, did not scratch him, and did not cry. He testified that he believed her to be consenting. He further testified that immediately after the sex, she was not upset or traumatized. [ 35 ] The defendant testified that early the next morning when he woke, the complainant was on her phone.

When she got off the phone, she said that she had told him to stop. He asked her what she meant. She then started to cry a bit. He was confused and asked her what was going on. She said, "I told you to stop and you took advantage of me." He replied that he would never. She then told him to have a shower. After his shower, he told her he did not know what she was talking about. They then left the B&B. She again told him in the car that he had taken advantage of her. She said that he did not stop when she had asked him to. He replied that he did stop when she asked him to stop to get a condom.

He asked her what she was accusing him of and told her he did not do what she was accusing him of. He testified that he tried to de-escalate the situation and said, "Whatever you want me to do, I will do." He testified that he apologized to her, although he did not believe he had taken advantage of her. [ 36 ] In relation to the text message between the two following the incident, he testified that he said he was truly sorry because he was scared, frightened, and worried over the way she was acting. He testified that his apology continued into the next day.

He said he apologized not because he had done anything wrong, but because he was scared and he wanted to continue growing their relationship. He thought by apologizing, he would save their relationship. He was adamant, however, that she never said "stop" outside the context of stopping to get a condom. In Cross-Examination [ 37 ] In cross-examination, the defendant testified that he was in love with the complainant from approximately September 2018, once they had met in person, and that he planned to start a family with her.

This feeling changed by September 2019. [ 38 ] He agreed that he was on a post-graduate work permit and that a sexual assault conviction would interfere with his obtaining permanent residency. [ 39 ] He agreed that the complainant told him she was celibate and wanted to stay that way. [ 40 ] He initially denied that his purpose in coming to Nanaimo was to have sex with the complainant, but when told to consider carefully whether he had any plan to have sex with her during the November visit, he replied yes, because he had condoms.

He testified that he obtained the condoms a day or two beforehand in case sex developed. [ 41 ] He testified that he asked the complainant before he kissed her, and before he performed oral sex. He testified that he did not ask the complainant before he penetrated her. He explained that he had not asked, because she had agreed to kissing and oral sex and was fully engaged in the progression of the sexual activity, as he was. He later added that she continued to kiss and touch his penis. Yet later, he testified that the way she acted led him to believe she agreed to the sexual activity.

He denied that she tried to move his penis away or asked him to stop. He agreed only that she asked him to get a condom, which he did.

[ 42 ] He again testified that what he said in his apology text on November 4 was not true. He said that he was in a state of confusion and shock and was afraid. He denied that the fear had anything to do with police involvement and denied that his apologies to the complainant were a ruse to avoid police involvement. However, he later admitted that he was concerned she might go to the police.

November 5, 2018 to September 27, 2019 Complainant’s Evidence In Chief [ 43 ] Concerning the events of November 5, 2018, to September 27, 2019, the complainant gave minimal evidence in direct examination about the relationship between her and the defendant following November 4, 2018. She initially testified only that she and the defendant remained in contact until September 2019. She later testified that she had broken off the relationship in April 2019, and then again in July or August 2019.

She also testified that by September 28, 2019, they did not have a relationship to speak of, that she had told him she was done, and that she needed to take care of herself. [ 44 ] It was during the cross-examination of the complainant that more of the circumstances of the ongoing relationship came to light and, as I have indicated, it was at this point that the trial was adjourned to permit applications to be brought pursuant to ss. 276 and 278.92 of the Criminal Code .

In Cross-Examination [ 45 ] In cross-examination, the complainant agreed that she and the defendant continued to text and that they met several times. She agreed that they met on December 22, 2018, but testified that this was an apology tour and that they did not engage in sex. [ 46 ] Other occasions where they met and did engage in sex included: • January 4, 2019, where she said that the defendant was persistent in wanting to have sex and that she eventually gave in. She did not, however, concede that she agreed to have sex.

When specifically asked if she agreed, she replied that he was persistent and sex happened; • January 20, 2019, at the defendant's home where she agreed they had sex, but did not agree it was consensual.

She said this was an occasion where he said they could start their celibacy the next month; • February 1, 2019, where she said he was again persistent; • February 4, 2019, at the Hilton Vancouver Hotel where she testified that they had sex but she did not agree it was consensual; and • May 11, 2019, where she testified that he insisted on sex. [ 47 ] The complainant testified that on every occasion they had sex in 2019, the defendant forced sex on her. She said that at no point did she ever want sex with the defendant, and that she was always manipulated and coerced.

He was always the sexual aggressor and she was always manipulated and coerced. [ 48 ] Regarding her vow of celibacy, the complainant testified that it meant no physical contact, no kissing, and no oral sex. When asked if she abandoned the vow, she replied that her boundaries were pushed. She again testified that she did not want to have any type of sex with the defendant, but he constantly pressured her. She said that she was coerced and her response was to freeze. She said she was forced and gave in.

When asked if the other encounters were consensual, she replied that she gave up and let him do what he wanted. [ 49 ] The complainant agreed that she had told the defendant she liked receiving oral sex, that they had a discussion about sex, and that she told him she liked it slow, that they had a discussion about pornography preferences, that she sent one photo of herself in lingerie to the defendant in response to a photo he had sent her, and that on one occasion during a video call, she masturbated for the defendant. [ 50 ] In relation to the sexual conversations between the two, the complainant was asked if she referred to the defendant's penis as "special friend".

She denied doing so. She was then asked if there was anything she referred to as "special friend". She replied that the defendant referred to her ex-boyfriend as "special friend" and suggested that the reference in a text message to "special friend" was to that ex-boyfriend. She was taken to a sequence of text messages that she agreed took place in August 2019, although I note the defendant thought they were earlier than that. The first text is from the defendant and includes a photo of his penis with the caption, "waiting to". Her reply was, "I can't even look" and then "I'm on two percent can't take pics.

Or video call my special friend". She again denied that she was referring to the defendant's penis as the special friend. [ 51 ] The complainant denied in cross-examination that she ever requested to engage in sex with the defendant. She denied ever asking for oral sex, even in a joking fashion.

However, she acknowledged sending the defendant an e-transfer of $200 on April 25, 2019, when he was in need of funds, and she acknowledged that the message attached to the e-transfer read, "You owe coochie more than 20 minutes." She agreed that "coochie" referred to oral sex. [ 52 ] The complainant again in cross-examination testified that their relationship ended in April 2019. However, in the April 25, 2019, e-transfer, she was advising the defendant that he owed her coochie.

Additionally, in July 2019, the complainant was scheduled to have surgery and the plan was for the defendant to come to Nanaimo to drive her to the surgery, and spend one or two days with her after the surgery. When it was put to her in cross-examination that they remained good friends at that time, she replied only that they were people who knew each other.

[ 53 ] The defendant did not attend in July 2019 for the complainant's surgery. The complainant admitted that she was significantly disappointed at this. She also again testified that the two of them were not in a relationship in July, August, or September 2019. [ 54 ] The next time the two of them got together was September 27, 2019, which relates to the events of Count 2. Defendant’s Evidence In Direct [ 55 ] In relation to the events between the two counts, the defendant testified that he and the complainant got together on December 22, 2018.

That day they went shopping, to a restaurant, and to a virtual experience. He also gave her an early Christmas present. He testified they had a good day and he returned to Vancouver later the same day. [ 56 ] The defendant testified that he considered he and the complainant were in a boyfriend/girlfriend relationship from September 2018 until September 2019. He testified to a number of occasions where they met, namely January 4, February 1, February 24, May 11, and possibly in June of 2019. He testified that on each occasion, they engaged in sex and often engaged in sex more than once.

He denied pressuring the complainant to have sex or using force. He testified that the complainant never said she did not want to have sex. He also testified that sometimes it was the complainant who initiated sex. [ 57 ] In between their encounters, he testified that they exchanged communications of a sexual nature, including that they both exchanged photos. He explained that she used the term "special friend" to refer to his penis. He testified that the message in evidence where she wrote that she could not video call "my special friend" was sent sometime between January and May, probably in February 2019.

He testified that he never sent unsolicited photos to the complainant. [ 58 ] The defendant specifically testified that the relationship was not broken off in April 2019. He referred to the e-transfer sent by the complainant on April 25, 2019, and explained that the message, "You owe coochie more than 20 minutes" meant that he was to perform oral sex. [ 59 ] He testified that they had some arguments wherein he would apologize and then things would calm down. He referred to various specific incidents where the complainant got upset or angry with him, including at WildPlay and at the Pacific National Exhibition.

He said these arguments were resolved with him apologizing. In Cross-Examination [ 60 ] In cross-examination, the defendant was questioned as to why he did not explain to his boss that he needed time off in July to attend the complainant's surgery. He testified that he did not give his boss the details of why he wanted time off.

He said he thought it was private and his boss did not need to know. [ 61 ] In relation to the text exchanges where he sent the complainant a picture of his penis and she replied she could not video call her special friend, it was suggested that he kept this because he thought he would be charged and it would help his case. He denied this. [ 62 ] Also, in relation to a screenshot of the complainant's itinerary for her visit to Vancouver in February 2019, he denied saving this to show the court that they met at the Hilton. He testified that he took the screenshot so he would have the address at hand.

September 28 2019 Complainant’s Evidence In Direct [ 63 ] In relation to the events of September 2019, the complainant's evidence in direct examination was initially confusing, as she did not explain that after the November 3, 2018, incident she and the defendant continued to see one another periodically and had several intimate encounters. She testified that she broke off the relationship in April 2019, and again in July or August of 2019, but she then testified that the defendant contacted her and wanted to visit her in Nanaimo. She told him not to.

However, he then told her he was on the ferry and would be there soon. She testified that she met him at the ferry terminal, where they got into an argument. They then drove to her apartment. She testified that when they got to her apartment, the defendant undressed to his underwear, which was his habit. She then testified that this caused her to have an episode of déjà vu . She said, "This is how it happened last time." [ 64 ] The complainant testified that she was on the bed when the defendant came to her and asked her if she was still angry.

She says she replied that she did not want him there and that when he tried to touch her, she told him to stop. She testified that he started to fondle her and she again told him to stop. She testified that he then pulled off her bottoms and commenced performing oral sex for about 15 minutes. She says that she again told him to stop and that she did not want this. She says that he then attempted to penetrate her, but initially could not because she was not lubricated. She says he nevertheless continued and flipped her over.

She testified that she was crying and pleaded, "Please do not come in me." She said he then got off her and made a comment about not being able to come because it had been too long. He then went to the bathroom. When he came back into the room, he sat on the couch and flipped channels. [ 65 ] The complainant testified that the defendant spent the night with her. She said she was "kind of" hiding on the bed and fell asleep while the defendant was watching television. [ 66 ] The next morning, he was in the bed with her. She says that she asked him to leave and he said no.

She then attended for a chiropractor appointment and a church service. When she returned, he was still there. She says that he wanted to stay and hang out with

her and her friends, but she said no. They spent the day together. The defendant watched television and she laid on the bed. At some point during the day, they went grocery shopping and the defendant cooked. She testified that the next day he left on the ferry. In Cross-Examination [ 67 ] In cross-examination, the complainant gave further evidence in relation to the applicant wearing only his underwear and it causing a déjà vu moment.

She testified that his undressing and walking around in his underwear triggered a trauma response in her. [ 68 ] The complainant also testified that while at the apartment, the defendant came over to the bed she was lying on and laid down beside her. She said he put his hand on her back and that she told him not to touch her. He replied, "Let me make this right," and then proceeded to put his hands down her pyjama bottoms. She testified she told him she did not want to have sex. She attempted to roll over and face the wall. He put his hands down her pyjama bottoms a second time.

She told him to stop. [ 69 ] The complainant was asked if she let the defendant perform oral sex and she replied that she did not. She was then asked if she gave in to his requests, to which she replied that she pushed his head away, put her legs together, and sat up. She said he then pushed her down again and told her that she was angry and that he would make this right. When asked if she agreed to let him, she said she did not. She said she vocalized, moved his head, and sat up.

However, she also said that she froze. [ 70 ] When asked if her pants had been taken off, she replied that the defendant took them off and that she lay as limp and as heavy as she could.

She said that when the defendant flipped her over onto her stomach, she tried to be as heavy as she could, but he was nevertheless able to flip her. [ 71 ] When asked if she attempted to fight the defendant off during intercourse, she said she did her best, but again said that she froze. [ 72 ] She disagreed that she was moaning and said that any sounds she made were of pain. [ 73 ] The complainant agreed in cross-examination that she and the defendant had sex the day after the assault happened, but did not agree that that sex was consensual.

When asked if she was forced by the defendant, she replied that he did what he always does, pushing her hands up her clothing. She said that she was tired of making her position clear and resigned herself to what happened. However, when she was then asked if she said anything to him, she replied that she kept saying this was not all right and to stop, but she eventually stopped saying anything. [ 74 ] The complainant was taken to a notice of civil claim filed August 20, 2020, that had been filed on her behalf against the defendant. She agreed that she reviewed the notice of civil claim before it was filed.

She agreed that the notice of civil claim alleged two of the instances of sex had been consensual, but said that was not accurate. She again repeated that all of their interactions involved coercion and force. She could not explain why the additional instances of forced sex were not included in the notice of civil claim. Defendant’s Evidence In Direct [ 75 ] In his direct examination in relation to the lead up to their encounter in September 2019, the defendant explained that he was supposed to visit with the complainant in July 2019 when she had surgery, but his boss required him to work and he could not go.

He said that this caused the complainant to become angry with him. She complained that he did not care about her. He said that he apologized and wanted to come see her. She agreed to his coming to see her. The plan was that he would stay at least one night at her place. The defendant testified that when the complainant picked him up at the ferry terminal, he told her he was sorry that he was not there for her surgery. She replied that he needed to do better. [ 76 ] When they arrived at the complainant's house, the defendant went to have a shower and then ate.

He testified that he was wearing his boxer shorts and tank top. The two of them sat on the couch together and watched television. He testified that they cuddled. Eventually, the complainant went to lie down on the bed and he joined her after a few minutes. He again apologized to her. Later on, they began to kiss and he then asked her if he could perform oral sex on her. She said yes. He performed oral sex for about ten minutes. He testified that the complainant was moaning during this, which he took as indicating pleasure. They then began kissing again and he penetrated her.

Again she was moaning and grabbing the sheets. They were kissing. He eventually finished and went to the bathroom. He testified that the complainant did not express that she was in any pain and that there were no lubrication issues. [ 77 ] The defendant testified that the next morning the complainant woke before him, as she had an appointment. When she returned, she asked him if he was going to church with her. He declined as he was tired. He testified that she was a bit upset. They then drove to the grocery store to pick some things up. He testified that her mood was "cordial".

When they returned from the store, they went out into the courtyard and he took some photographs of the complainant. By then, he said her mood was wonderful. They then went back inside and the complainant went to church. When she returned, he told her that he needed to go home that afternoon. She was upset, as she wanted him to stay another day. He agreed to stay until the next day, and testified that they again had sex just before dinner. The next day she drove him to the ferry terminal and he returned home. [ 78 ] The defendant testified that he sent a text to the complainant after he got back.

He said she was not happy. He said he continued to text or email the complainant, but she was either late in replying or did not reply at all. He said they eventually stopped seeing each other. [ 79 ] The defendant testified that there was no argument about sex on September 28, 2019, that there was no indication the complainant was in pain, and that they were both engaged in the sexual activity. He believed the sex was consensual and had no idea that the complainant felt he had assaulted her.

In Cross-Examination [ 80 ] The defendant was not specifically cross-examined on his evidence relating to the September 2019 encounter, other than his reason for not visiting in July 2019. He was merely asked whether his love for the complainant continued up to September 2019, to which he replied it did. He was further asked why he did not take steps to reach out to the complainant, to which he replied that he did by calls or messages. Legal Principles [ 81 ] Subsections 265(1) and (2) of the Criminal Code address assaults, including sexual assaults, and consent. It provides: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. [ 82 ]

Section 271 of the Criminal Code sets out the sentences applicable upon a finding of guilt for a sexual assault. Essential Elements [ 83 ] The essential elements of sexual assault are well known and were recently set out by Justice Riley in R. v. Gaglardi , 2022 BCSC 1681 at para. 35 [ Gaglardi ] as follows: [35] To prove sexual assault under s. 273 of the Criminal Code , the Crown must establish the following essential elements of the offence, namely that: (

i) the accused touched the complainant, (ii) the touching was intentional, (iii) the touching was sexual in nature, (iv) the complainant did not consent to the touching, and (

v) the accused knew the complainant did not consent to the touching in question. [ 84 ] The only elements of sexual assault that are contested here are whether the complainant consented to the sexual touching or sexual activity and whether the accused knew the complainant did not consent. Consent [ 85 ] The meaning of consent is addressed in ss. 265(3) and (4) of the Criminal Code , and 273.1.

Section 265(3) provides that no consent is obtained where the complainant submits or does not resist by reason of: (1) the application of force; (2) the threat of the application of force; (3) fraud; or (4) the exercise of authority. [ 86 ] Section 265(4) addresses circumstances where the accused had an honest but mistaken belief in consent. [ 87 ]

Section 273.1 of the Criminal Code provides additional guidance on the meaning of consent. It provides that the consent must be voluntary, must be present at the time the sexual activity in issue took place, and that the presence or absence of consent is a question of law. [ 88 ]

Section 273.1(2) further provides that:

(2) For the purpose of subsection (1), no consent is obtained if (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (

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

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

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the [sexual] activity. [ 89 ] In Gaglardi , at paras. 37-39 , Riley J. continued to explain the concept of consent and how it relates to the actus reus and mens rea elements of the offence: [37] With regard to the concept of consent, again it arises in both the actus reus and mens rea components of the offence in more or less the same way that it does in relation to the offence of indecent assault. There are also statutory provisions that have some bearing on

both concepts. [38] At the actus reus stage (element (iv) above), consent is determined subjectively by reference to the state of mind of thecomplainant: Ewanchuk at para. 26. The complainant’s consent must relate to the specific physical act or acts in issue, including theirsexual nature: Hutchinson at para. 55, 57; see also R. v. Kirkpatrick, 2022 SCC 33 [Kirkpatrick] at para. 99-102. Also, pursuant to s.265(3), “no consent is given” where the complainant “submits or does not resist” by reason of, inter alia, fraud (per subsection (c)), orthe exercise of authority (per subsection (d)).

Further, s. 273.1(2) provides that no consent is obtained where, inter alia, the accusedinduces the complainant to consent by virtue of a position of trust, power, or authority (per subsection (c)). [39] At the mens rea stage (element (

v) above), absence of knowledge about consent arises only where the accused has an honest butmistaken belief in communicated consent: Ewanchuk at para. 43-45. Further, s. 265(4) provides that where the accused alleges honest butmistaken belief in communicated consent, the trier of fact must consider the objective reasonableness of that claim. [Emphasis added.] [90] Justice Shergill further explained consent in R. v.

J.T.A.T., 2021 BCSC 817, at paras. 16-19 [J.T.A.T], as follows: [16] The offence of sexual assault is one of general intent, such that the Crown does not have to establish that the accused’s intentionfor the touching was sexual. The actus reus of sexual assault is established by the proof of three elements: (1) intentional touching; (2)the sexual nature of the contact; and (3) the absence of consent. The first two elements are objective. The third element, consent, issubjective.

It is determined by reference to the complainant’s subjective (internal) state of mind towards the touching at the time that itoccurred: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at paras. 25–26 and 41. [17] Since consent is a private mental state, it is inferred in much the same way as mens rea. Consent can be communicated by verbaland non-verbal cues. The trier of fact looks to these verbal and non-verbal cues, in the context of the totality of the circumstances, todraw inferences about the complainant’s mental state and whether the complainant consented to the sexual touching: R. v.

Park, (SCC), [1995] 2 S.C.R. 836 at para. 43. [18] A complainant is not obliged to express a lack of consent either by words or conduct: R. v. J.A., 2011 SCC 28 at para. 37. [19] Consent must be given to each and every part of the sexual touching that occurred. Consent can be revoked at any time. Ifrevoked, consent must be re-established for the engagement of further sexual activity: Ewanchuk at para. 65. [Emphasis added.] Reasonable Doubt [91] The onus is on the Crown to prove all of the elements of the offence beyond a reasonable doubt.

The question is whether, on thewhole of the evidence, the Crown has proven guilt beyond a reasonable doubt: R. v. Morin, (SCC), [1988] 2 S.C.R. 345,at 361-362. [92] A reasonable doubt does not involve proof to an absolute certainty, but requires something more than that the accused isprobably or likely guilty. Along the spectrum of probabilities, a reasonable doubt lies much closer to absolute certainty than to proof on abalance of probabilities. A reasonable doubt must be based on reason and common sense and logically derived from the evidence orabsence of evidence: see generally R. v.

Lifchus, at para. 36, and R. v. Starr, 2000 SCC 40, at para. 242. Credibility and Reliability. [93] Given the dramatically different versions of events presented by the complainant and defendant, their credibility and reliability iskey to the disposition of this matter. [94] The credibility of a witness refers to the veracity of the evidence. Is the witness being honest or telling the truth? Reliabilityrefers to the ability of the witness to accurately remember the events and to accurately communicate those events to the court.

An honestwitness can be mistaken in their recollection: (See generally: J.T.A.T. at paras. 66-68; and Gaglardi at paras. 44-45. [95] In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 [Ewanchuk], the Supreme Court of Canada has made it clearthat the reasonable doubt concept applies equally to issues of credibility. The principles established in Ewanchuk, as expanded insubsequent cases and as applied to sexual assault cases, were nicely summarized by Justice Shergill in J.T.A.T. as follows at paras. 90-92: [90] As the Court noted in Ewanchuk, consent is considered from the perspective of the complainant.

The actual state of mind of thecomplainant is determinative. The question that I must ask is whether the complainant, in her mind, wanted the sexual touching to takeplace at the time that it occurred. [91] In sexual assault cases which centre on differing

interpretations of essentially similar events, trial judges should first considerwhether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she didnot consent, the question is then one of credibility.

In making this assessment, the trier of fact must take into account the totality of theevidence, including any ambiguous or contradictory conduct by the complainant: Ewanchuk at para. 61. [92] The guidance provided by the Court in W. (D.) continues to be relied on in judge-alone sexual offence trials where the accusedand complainant provide competing versions of events: see R. v. Ounpuu, 2019 BCSC 904 at paras. 54–57; Swain at paras. 59–60; and R.v. Ryon, 2019 ABCA 36 at para. 51. The applicable principles from the W. (D.) framework, and subsequent cases, can be distilled downto the following: (

a) if I believe the evidence of the accused, I must acquit; (

b) if I do not believe the evidence of the accused, but I am

left in reasonable doubt, I must acquit; (

c) if I am not left in any doubt by the evidence of the accused, I must ask whether, on the basis ofall the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused; and (

d) if aftercareful consideration of the evidence, I do not know who to believe, I must acquit. [96] In Gaglardi, Riley J. recited the same principles and noted at para. 45 that credibility and reliability is addressed through theprism of reasonable doubt and is not a credibility contest between the complainant and defendant. [45] In considering the credibility and reliability of the witness testimony, it would be an error to approach the case as a “credibilitycontest” by pitting the testimony of the complainant in a particular count, or indeed all of the complainants, against the testimony ofMr.

Gaglardi in an effort to determine which of the two opposing versions of events is more believable or more likely to be true: R. v.Ryon, 2019 ABCA 36at para. 51. Rather, the court must address witness credibility and reliability through the prism of proof beyond areasonable doubt. Thus the court must consider the principles discussed in the leading case of R. v.

W.(D.), (SCC),[1991] 1 S.C.R. 742 [W.(D.)]. [97] Justice Riley also observed at para. 48 that “The “paramount question” is “whether, on the whole of the evidence, the trier of factis left with a reasonable doubt about the guilt of the accused”. [48] No “specific form or sequence of analysis” is required. In a judge alone trial, the order in which the judge analyzes the evidencein his or her reasons is “inconsequential”, so long as the focus throughout remains on “the principle of reasonable doubt as the centralconsideration”: Tyers at para. 15, citing R. v. Vuradin, 2013 SCC 38[“Vuradin”] at para. 21.

The “paramount question” is “whether, onthe whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused”: Vuradin at para. 21, citing W.(D.) at p. 758. Finally, I note that a reasonable doubt can arise from the evidence, a conflict in the evidence, or a lack ofevidence: C.W.H. at para. 18. (see also R. v. Singh 2021 BCCA 172, at para. 70) [98] In assessing credibility, I may rely on reason and common sense, life experience, and logic.

However, I must scrupulously avoidrelying on stereotypes, generalizations, or assumptions about how individuals would behave in a particular circumstance that are not: (a)grounded in the evidence; or (

b) so uncontroversial that they could properly be the subject of judicial notice: R. v. Pastro, 2021 BCCA149 at paras. 40-44, and R. v. Greif, 2021 BCCA 187 at paras. 60-61. Submissions [99] The Crown and defendant agree that this is a credibility case and that the W.(D.) analysis is to be applied. [100] The Crown submits that although there are peripheral issues with the credibility of the complainant, she was steadfast in herevidence that she asked the defendant to stop during the events of both Counts 1 and 2.

The Crown further submits that her testimony iscorroborated in relation to Count 1 by the numerous and detailed apology texts from the accused and by the report of the forensic nurse. [101] The defendant submits that there is an alternate plausible explanation for the apology texts, that he testified in an honest andforthright manner, and that his evidence was unshaken on cross-examination. The defendant submits that, in contrast, the complainantwas combative during her cross-examination, gave inconsistent evidence, and even gave evidence that was shown to be untruthful onseveral points.

The defendant says that the problems with the complainant's evidence are not peripheral, but go to her credibility. Analysis [102] Before commencing the necessary analysis, I wish to stress that although evidence has been admitted of sexual encountersbetween the dates of the two alleged offences and to an encounter after the second alleged offence, I rely on that evidence solely for thepurpose of assessing credibility.

The fact that the parties had other sexual encounters does not mean it is more likely the complainantconsented to the encounters in issue or that she is less worthy of belief. [103] I have carefully considered the testimony of the complainant, the testimony of the defendant, the other evidence submitted, andthe submissions of the Crown and the defendant.

Applying the W.(D.) analysis, I am left in reasonable doubt as to the guilt of thedefendant and I must find the defendant not guilty. [104] There are several aspects of the complainant's evidence that cause me to question the credibility and reliability of her evidence.Her evidence was frequently inconsistent and contradictory, was contradicted by documentary evidence, and was at times simplyunbelievable.

She also displayed a tendency to exaggerate and embellish. [105] One of the more egregious contradictions in the complainant's evidence was her testimony that none of the sexual encountersbetween the dates of the two alleged offences were consensual. This evidence is flatly contradicted by her notice of civil claim whichspecifically stated that some of the encounters were consensual.

The complainant agreed that she had reviewed this pleading prior to itsfiling, but she had no explanation for the contradiction. [106] Examples of her evidence being internally inconsistent and of her exaggerating and embellishing are her repeated references tobeing forced, coerced, or manipulated by the defendant to engage in sexual activity. She gave no particulars of how he forced, coerced,or manipulated her.

At best, her evidence was that the defendant badgered her to engage in sexual activity and that she eventuallyrelented, gave into, or agreed to such requests. [107] An additional difficulty with the complainant's evidence relates to her evidence that she never gave up her vow of celibacy, thatshe was not interested in a sexual relationship, and that it was only the defendant who initiated or wanted sexual activity. This evidence is

inconsistent with what actually transpired and is simply unbelievable:

a) First, it is undisputed that the complainant and defendant had multiple sexual encounters;

b) Second, the messages between the two indicate that the relationship was not as one-sided as the complainant said. The message included in the April 25, 2019, e-transfer is illustrative of this. The complainant wrote that the defendant owed 20 minutes of “coochie”, which she agreed meant oral sex;

c) Additionally, the complainant agreed that they had a discussion about pornography preferences, that she sent one photo of herself in lingerie to the defendant, and that on one occasion during a video call she masturbated for the defendant. The complainant's evidence that she never gave up her vow of celibacy and was not interested in a sexual relationship is difficult to reconcile with these facts. I again add that whether or not she remained celibate is of no relevance to whether she consented to the sexual activity comprised in the alleged assaults.

What is relevant is that she said she never abandoned her vow of celibacy when she had. [ 108 ] Other issues with the complainant's evidence include:

a) She denied referring to the defendant's penis as "special friend" and suggested that the text message where she referred to "special friend" was in relation to her ex-boyfriend. However, from the context, it is reasonably clear that "special friend" meant the defendant or his penis with whom she could not video chat because her phone's battery was low;

b) She gave evidence that their relationship ended in April 2019. However, it is clear that it had not. They continued to communicate after April 2019. In fact, they had planned for the defendant to visit her in Nanaimo in July 2019, to care for her after her surgery, and she was very disappointed when he did not attend as planned. The continuing communication and the planned July 2019 visit is not consistent with the relationship having ended in April.

c) She refused to make the obvious concession that the two of them were at least good friends in August or September 2019, saying instead that they were two people who knew each other;

d) Concerning Count 1 specifically, i. Her evidence that the first kiss was forced on her and was not with her agreement is inconsistent with other evidence she gave and inconsistent with her statement to Constable Ceulemans dated December 22, 2018, where she said she replied "okay" to the kissing and that it was "no problem". ii. She also said at one point that the defendant forced her to allow him to perform oral sex. However, in other testimony, she said that she agreed to this. iii.

She was evasive and disingenuous about the contents of the overnight bag she had with her, saying "not really" when asked if it contained a change of clothing and toothbrush, but she later admitted it did have a change of clothing. iv. She testified that she had no intention of spending the night with the defendant, but after being confronted with the fact that she had an overnight bag, she admitted there was a possibility of spending the night. v. She said she froze during the events of Count 1, but the balance of her evidence is that she did not freeze. vi.

She was inconsistent as to when she told the defendant to stop in relation to Count 1;

e) In relation to Count 2, she initially testified that when the defendant began to walk around in only his underwear, that it caused a déjà vu moment and triggered a trauma response in her.

However, it is clear on the evidence that this was a habit of the defendant throughout the relationship and could not have caused a trauma response. [ 109 ] The Crown submits that the complainant was clear in her evidence about what happened in relation to Counts 1 and 2, and that any confusion in her evidence about whether the other sexual encounters were consensual should not detract from her certainty in regards to Counts 1 and 2. I do not agree. The complainant's evidence of the other encounters raises issues with the overall credibility and reliability of her testimony.

This adversely affects the weight that I can give her testimony in relation to the specific events of Counts 1 and 2. [ 110 ] The Crown also submits that the report of the forensic nurse supports the complainant's version of the events in relation to Count 1. I do not agree. The agreed statement of facts is in reference to the report and notes only that two small lacerations were found. Importantly, para. 8 provides, “The observations in this Agreed Statement of Facts are not more consistent with non-consensual intercourse, than consensual intercourse”.

In other words, the findings in the report are entirely equivocal. [ 111 ] The Crown relies heavily on the apology text messages from the defendant, particularly those on November 4 and subsequently. I agree that in relation to Count 1, these messages would seem to support an inference that the complainant had in fact told the defendant to stop, that he failed to comply with that request, and that he was apologizing for his failure to comply. However, the defendant has provided an explanation for his repeated apologies which gives me pause.

He is in Canada on a work visa and was aware that a sexual assault conviction would affect his ability to obtain permanent residency. He testified that although the complainant did not in fact say "stop" during the November 3 encounter, other than to request that he get a condom, he was scared and confused and thought that repeated apologies would make things better, which they in fact did. [ 112 ] The defendant's evidence is somewhat corroborated by the complainant. The defendant testified that he was confused the morning of November 3 when the complainant first confronted him with her version of events.

He did not know what she was talking about. The complainant agreed that on the morning of November 3, the defendant was confused and did not seem to understand what she was

talking about. [ 113 ] In the circumstances, I cannot completely discount the defendant's explanation for the apologies. In other words, there is a degree of plausibility to the defendant's explanation, such that the defendant's guilt is not the only reasonable inference to be drawn from the apologies: R. v. H.(E.) , 2014 BCSC 1747 at para. 86 ; and R. v. C.M. , 2022 ONCJ 438 at para. 120 . [ 114 ] This is not to say that I accept the defendant's version of events over that of the complainant. There are aspects of his evidence that I do not accept and that cause me to question his credibility.

In particular, I do not accept his evidence that he was in love with the complainant since approximately September 2018, and that he wanted to start a family with her. By September 2018, the two of them had not even met in person. This evidence is simply not believable in the circumstances. [ 115 ] Additionally, the defendant initially denied that his purpose in coming to Nanaimo on November 2 to 3, 2018 was to have sex with the complainant.

However, this was clearly at least a hoped-for outcome as he brought condoms with him and, when pressed, he acknowledged that sex was a possible purpose. [ 116 ] The Crown submits that the defendant's testimony was also contrived in relation to what evidence he retained on his phone, namely, the Hilton Hotel itinerary and the photograph from the complainant, and in relation to WhatsApp messages. However, I do not consider the defendant's testimony on these issues was contrived or unbelievable.

He explained that he keeps photographs on his phone and explained that he took a screenshot of the Hilton Hotel itinerary so he would have the address. These are not unreasonable explanations. In relation to his phone generally, he explained that he had a Nigerian number which he was not able to renew from Canada, and that as a consequence he lost access to what was on that phone, including text messages.

Again, in the absence of any other evidence, his testimony is not unreasonable or unbelievable. [ 117 ] In relation to Count 2, an additional difficulty for the Crown is that the defendant was minimally cross-examined on his evidence relating to what actually transpired. He was not challenged on his version of the events of that day. Conclusion [ 118 ] Considering all of the evidence, and given the credibility issues I have identified, I do not know who to believe.

Therefore, applying the W.(D.) analysis, the Crown has not proven the guilt of the defendant on either count beyond a reasonable doubt and I must acquit. [ 119 ] I find the defendant not guilty on both Counts 1 and 2. “Giaschi J.”