R. v. T.E. Date:, 2016 BCPC 267

Citation: R. v. T.E. Date: 20160331 2016 BCPC 267 File No: 15628-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. T.E. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: R. Ellsay Counsel for the Defendant: S. McCausland Place of Hearing: Powell River , B.C. Dates of Hearing: February 18, 19, 2016 Date of Judgment: March 31, 2016

Introduction [ 1 ] T.E. is charged with sexual assault of A.B. [ 2 ] The relationship of T.E., 22, and A.B., 16, despite this age difference, began as a friendship when they attended a course together. Initially, T.E. had a girlfriend. However, the relationship between A.B. and T.E. developed sexual overtones over a number of months, almost exclusively through the use of text-like communication. They eventually got together in the early morning hours at T.E.’s home, when A.B. came there after a night out drinking with a friend.

Alleged physical contact by T.E. gave rise to this charge. [ 3 ] That alleged physical contact can be separated into two categories - “touching” and “assault.” [ 4 ] The “touching” involves three separate actions:

(1) T.E. placing his arm around and holding A.B. towards him while on the couch (the “cuddling”);

(2) T.E. rubbing or massaging of A.B.’s legs up into the inside of her thigh during the “cuddling” (the “leg rub”); and, (3) a kiss or kisses on the lips that followed the period of time on the couch (the “kiss”). [ 5 ] T.E. and A.B. gave similar -- although not identical -- versions of those touching actions. [ 6 ] The issue to be determined is whether each of these three “touching” actions, as I determine took place, were for a sexual purpose, and whether A.B. did not consent.

Even if I find that the particular touching action was for a sexual purpose and A.B. did not consent, then I must still determine whether T.E. honestly believed she did consent. [ 7 ] The second category of physical contact, which I refer to as an “assault,” involves an allegation by A.B. that T.E. touched her vagina on the outside, and as she got up from the couch, he pulled her sweat pants and shorts down, bit her left buttock, and inserted his fingers from behind into her vagina. [ 8 ] T.E. entirely denies any of that occurred. [ 9 ] There is no issue that this action would indeed be for a sexual purpose and without consent. [ 10 ] The only issue is credibility.

I must determine whose evidence I accept, keeping in mind the obligation is on the Crown to prove the case against T.E. beyond a reasonable doubt. The “cuddling” - was T.E.’s “cuddling” of A.B. on the couch for a sexual purpose? [ 11 ] A.B. arrived at T.E.’s home and they both sat on the couch. Much time was spent in the evidence on whether A.B. sat perhaps a foot away, rather than right next to T.E., when he put his arm around her and pulled her next to him. I find that is not a factual difference that offers any real distinction.

It was his action that pulled her in towards him. [ 12 ] However, I am unable to conclude beyond a reasonable doubt that this particular touching by T.E. was for a sexual purpose. [ 13 ] I find that the nature of the relationship was such that this sort of “cuddling” was simply a physical show of affection. That was reflected in an earlier hug when they met briefly at a social event a few weeks earlier, and A.B.’s stated appreciation of that hug.

It was also reflected in their text messages before her arrival at T.E.’s home, in that she agreed to give him a “cuddle” after he had agreed to pay for the taxi to drive her to his place. [ 14 ] I do not equate displaying physical affection, even where there may be some hope of future sexual contact, with touching for a sexual purpose. They may overlap. They did not in this case.

The “leg rub” - was it for a sexual purpose? [ 15 ] The parties differed somewhat with respect to their evidence, with T.E. suggesting this began more as a foot massage followed by a leg massage, and A.B. maintaining it was a rubbing of A.B.’s thigh as they sat together on the couch. Those differences are not material. They agree this included T.E. rubbing A.B.’s inner thigh to near the area of her vagina. [ 16 ] For that reason, I find that this was not strictly a physical show of affection. It had a sexual purpose for T.E., even if, as I find, it was a minor one.

Was the “leg rub” consented to by A.B.? [ 17 ] On the analysis as outlined by the Supreme Court of Canada in R. v. Ewanchuk , 1991 SCR 330, I must initially only consider whether A.B. was subjectively not consenting to the “leg rub,” before considering, if necessary, whether T.E. may have honestly believed she did consent. Further, pursuant to the provisions in the Criminal Code , even if A.B. did consent, such consent is ineffective if it was not freely given, such as through fear (s. 265 (3)(b)), or she was incapable of giving it (s. 273.1(2)(b)), such as through excessive

alcohol consumption. [ 18 ] I briefly turn to the issue of alcohol. On the night of the incident, A.B. had been out with a friend and she had been drinking. At one point in her evidence, she described herself as “drunk” and volunteered in cross-examination that her condition was such that she might do something she might not do if she were sober. [ 19 ] However, her condition, as it related to T.E.’s alleged conduct, was not significantly explored or argued by the Crown.

The Defence questioned A.B. to the limited extent that her memory of the events of that night may not have been as good as a result of the alcohol. [ 20 ] In short, the effect of the alcohol on A.B. was not an issue with respect to her ability to provide consent. [ 21 ] However, her evidence was that she did not consent to the “leg rub.” She acknowledged that she did almost nothing to communicate her disapproval, by either words or actions, except to adjust her sitting position at some point.

She said she was somewhat fearful and referred to their significant size differences. [ 22 ] I find that A.B. was prepared to “cuddle” with T.E. But I also find that the significant differences in their respective sizes became apparent once she was on the couch with him. He is 6 feet 7 inches and almost 400 pounds. I would describe him as moderately obese.

She is 140 pounds. [ 23 ] Although there was no overt act on T.E.’s part to cause fear, such as to overpower or threaten A.B. while on the couch, their significant size difference, and his pulling her in towards him, supported her evidence that she was somewhat fearful. It may also help explain her failure to communicate her lack of consent, although no onus rests upon her to do so. [ 24 ] In

summary, applying section 265(3)(b), I am satisfied that A.B.’s consent to the “leg rub” was not freely given due to her fear. Therefore there was no effective consent. Did T.E. honestly believe that A.B. was consenting to the “leg rub”? [ 25 ] I do accept T.E.’s evidence that he honestly believed that A.B. was consenting to this manner of touching. [ 26 ] That acceptance comes from the following:

(1) There was a history that had suggested to him some interest by A.B. towards him sexually. Despite an obvious difference in age, the text communication and their respective evidence suggests the parties shared a certain lack of confidence that likely drew them together and offered some support to one another. However, that relationship became sexual through text messaging and social media, particularly when T.E. no longer had a girlfriend. I find that T.E. was the aggressor in terms of sexually suggestive communication, including making sexual overtures.

A.B. responded with less suggestive, but not entirely discouraging, comments and actions. On his encouragement, A.B. sent a picture of her buttocks in “short shorts” and also one of her getting out of the bath with her genital and breast areas strategically covered by soap bubbles. T.E. was much more direct by sending a picture of his penis and a short video of him masturbating.

That was not particularly shocking to A.B., as she stated it was common to receive pictures of young men’s penises through social media - colloquially called “dick pics.” Although that text communication became much less sexual after A.B. told T.E. that her mother had discovered T.E.’s penis picture and video, there had still been that history.

(2) The decision of A.B. to come to T.E.’s home after 1:00 a.m., while she knew him to be alone. This decision supported T.E.’s belief that A.B. had perhaps a greater interest in him sexually on this night.

(3) The “cuddle” on the couch over some period of time. This also supported T.E.’s belief that A.B. was indeed interested, which led to his initial rubbing or massaging of A.B.’s legs. In turn, A.B. did not communicate any disagreement to that.

(4) The seemingly agreeable rubbing of the legs over time. Once again, this supports his honest belief that A.B. consented to his then rubbing the inside of her upper thigh. [ 27 ] Although A.B. alleges that the “assault” occurred next in time and before the “kiss,” I will address the “kiss” first, and then return to the “assault.” I have considered the timing of the alleged assault in my analysis of the “kiss.” The “kiss” - was it for a sexual purpose? [ 28 ] The parties agree that there was an initial kiss of some duration.

They agree it occurred after the parties had left the couch and after A.B. had gone to the bathroom. A.B. says there was another kiss inside of some duration, while T.E. says it occurred on the steps

outside, but was very brief. For reasons that I state below, there is no need to make a finding as to which of these versions of the secondkiss occurred. The kisses may be considered together. [29] T.E. maintains that the kiss was the most intimate action that took place between them. [30] Therefore, I have no trouble concluding the “kiss” was a touching for a sexual purpose.

Was the “kiss” consented to by A.B.? [31] The parties do not agree on the nature of the “kiss.” [32] A.B. says she did not consent to the “kiss.” She says he kissed her, which included his placing his hands on her chin andattempting to place her hands on him while the kiss occurred.

She admits she did not turn her head away or otherwise state herdisagreement with that initial kiss, nor to the kiss she says that followed. [33] T.E. says the “kiss” was a mutual act and denies placing her hands on his body. [34] Once again, it is only A.B.’s subjective consent at this stage of the analysis that is relevant. [35] The description of the initial “kiss” by A.B., lasting perhaps 2 minutes, and to the one that she says followed, without herturning her head or otherwise expressing her disagreement, might well have left me with a reasonable doubt as to whether she indeed didnot consent.

However, I again accept that the fear that A.B. had arising from T.E.’s size contributed to any apparent consent. I makethat finding irrespective of any conclusion regarding the alleged assault that A.B. maintains occurred before the “kiss.” [36] As a result of that fear, I conclude that no effective consent was given.

Did T.E. have an honest belief that A.B. consented to the “kiss”? [37] Although A.B. suggested some aggression by T.E. to place her hands on him during the “kiss,” I conclude that, even if Iaccepted that, it would only lead me to find that he was encouraging her to hold or hug him during the “kiss.” [38] According to A.B., the “kiss” (or kisses) also occurred as the parties “came together” while standing in the house, after A.B.returned from the bathroom. The specific location was somewhat in dispute, but I do not find that material to the analysis.

Moreimportantly, the “kiss” did not occur in the confines of the couch where his significant physical presence and control might be moreeasily exerted. [39] A.B. also agreed that the length of the initial “kiss” was from one to two minutes, without her turning her head or in any waycommunicating her disagreement with that “kiss” or to the one she says followed. Indeed a kiss on the lips is, perhaps unlike otherpossible sexual touching, something that seems to require participation.

A lack of participation will likely end a kiss unless there is someforced ongoing contact, which was not the description given by A.B. [40] Therefore, I conclude that, irrespective of any conclusion regarding the alleged assault that A.B. says preceded this “kiss,” T.E.did have an honest belief that A.B. consented to the “kiss” or kisses after the period on the couch. [41] In

summary, with respect to the “cuddling,” the “leg rub,” and the “kiss,” I do not find that a sexual assault has been proven. The “assault” [42] Where, as in this case, one party gives a version that is in direct contradiction to the other party, the sole issue is credibility. Putplainly, who do I believe? However, it is not quite that simple. At the end of the day, the test I must apply in a case such as this isprovided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 SCR 742. That test is as follows:

(1) If I believe the testimony of the accused, then I must acquit;

(2) If I do not believe the testimony of the accused, but I’m left with a reasonable doubt by it, then I must acquit;

(3) Even if I’m not left in doubt by the evidence of the accused, then I must still ask if I am convinced beyond a reasonable doubt of theguilt of the accused based on the balance of the evidence that I do accept. [43] Therefore, even if I have no reason to disbelieve A.B., I must still go on to consider the evidence of T.E. and whether I eitherbelieve him entirely, or even if I do not, I am still left with a reasonable doubt based on his evidence and on the evidence generally. A.B.’s evidence [44] In addressing A.B.’s credibility, I consider her demeanour and the general manner in which she gave her evidence.

In short, Ifound her to be quite straightforward - indeed quite matter-of-fact. She was not emotional, even when describing the events she allegesas the “assault.” I did not find her either more or less credible based on that demeanour. [45] However, I also consider what she says occurred in light of what is seemingly reasonable in all of the circumstances. In thatregard, I have some small reservations.

(1) Firstly, T.E.’s conduct, both before and after the alleged assault, seems inconsistent with the sudden and severe sexual act as allegedby A.B. That inconsistency arises out of the seemingly measured conduct of the “cuddling” and “leg rub” that occurs over a period of

perhaps an hour and a half, and is later followed by the “kiss” and positive text contact from T.E. after A.B. leaves.

(2) Secondly, A.B.’s conduct by way of text responses to T.E. after she left his place in the early morning hours and later in the day, do not seem consistent with such a severe sexual act having been perpetrated by him. She does not seem angry or to even be non- communicative as a result of what would have been a very traumatic event. I note that this was after she was then out of his physical presence. It was after speaking to a friend that she then brought forward a complaint the following night.

(3) Thirdly, A.B. admits to significant alcohol use that night, such that her reliability for some of the details of the events of that night is in question. [ 46 ] Having said that, I certainly do not reject her evidence. It might very well be that T.E. suddenly did as A.B. states he did. I have no reason to disbelieve her. [ 47 ] Therefore, based on her evidence alone, I am not left with a reasonable doubt. T.E.’s evidence [ 48 ] Applying the R. v.

W.(D.) test, I have considered T.E.’s testimony in light of all of the evidence. [ 49 ] As for his testimony, it was offered in a straightforward manner and he was not shown to be inconsistent during his cross- examination. He was sober on the night in question and his recollection of the details from that night were not significantly challenged. [ 50 ] In terms of other evidence, I note as follows:

(1) Immediately following T.E.’s arrest the day after the incident, he was aggressively questioned by the police. The videotape of that questioning was offered as evidence in the Crown’s case and went in for the truth of it. In that statement, he denies the sexual assault, but admits to the other touching incidents.

(2) T.E.’s behavior, including as described by A.B., both before and after the time of the alleged assault, seems consistent with no assault having occurred, and as stated earlier, inconsistent with it occurring.

(3) The text exchange between the parties, after A.B. returns home and for the day following, is generally friendly and inconsistent with this serious sexual act having occurred;

(4) There is a further, and I find significant, part of the text exchange that occurs just after A.B. returns home. In that text exchange, T.E. asks A.B. not to disclose, to his sister, the fact that they kissed. This request was explained at trial as arising from some apparent embarrassment for him that he would “hit on” someone that much younger and a friend of his sister, which was perhaps a pattern. T.E. also speculated in his evidence that perhaps that request upset A.B. and caused her to make what he says is this false allegation. I do not give that speculation any weight.

Indeed A.B. does not seem upset in her text reply and is agreeable to keeping the “kiss” a secret. However, what is significant is that it is the “kiss” that T.E. makes some effort to have A.B. not disclose having occurred that night. The “kiss,” according to T.E., was the most intimate act that occurred between them. It begs the question that if he had perpetrated the sexual assault as described, why not seek to have A.B. not disclose that assault?

I would have expected he would likely say something like: “Don’t tell my sister what happened last night.” [ 51 ] I have also considered the following additional evidence: Medical evidence and opinion [ 52 ] This evidence was offered through the opinion of Dr. Robert Head, an expert on anatomy and physiology of the human body, and the diagnosis of injury caused by trauma. He examined A.B. the day following the alleged sexual assault and observed a small area of redness or abrasion and maybe a little tear.

No evidence of the alleged bite was made. [ 53 ] This opinion included an admission of fact that A.B. had intercourse with another young man three days prior to this alleged assault and suffered no pain or discomfort, but that she briefly suffered some pain after the alleged assault. [ 54 ] I will not review all of the evidence, but I found that the examination results and the expert opinion did not support the case for or against the alleged assault, as Dr.

Head could not opine on the date of the observed injury and agreed that the redness or abrasion could have come from the sexual intercourse within the last 3 days. Logistics [ 55 ] Some time was spent in the evidence on what was referred to the “logistics” of the sexual assault as alleged, including whether such

an act could be perpetrated from T.E.’s right-sided sitting position on the couch. I did not find that argument determinative. If A.B.

slid out sideways from the couch, then it would have been near impossible to bite her left buttock, but if she had turned to her left as she got up, then the left buttock would appear to be the likely location of such a bite. No convincing evidence was offered to conclude her method of movement. No underwear [ 56 ] There was a suggestion that T.E. having been aware of the fact that A.B. did not wear underwear (but shorts) under her sweat pants was consistent with the manner of the alleged assault. That argument did not assist me, since he denies the allegation and A.B. says it occurred.

That would only assist if it was shown that he discovered something about what was under her sweat pants that he would not otherwise have known unless he committed the assault as alleged. Conclusion [ 57 ] In conclusion, on the basis of T.E.’s testimony denying the alleged assault, and from a review of all of the evidence, I am left with a reasonable doubt. [ 58 ] Therefore, I enter an acquittal on the charge of sexual assault. __________________________ The Honourable D. Sudeyko Provincial Court Judge