R. v. Villaresis, 2019 BCPC 196

Citation: R. v. Villaresis 2019 BCPC 196 Date 20190819 File No: 175143-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HAROLD CRUZ JOJO VILLARESIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: M. Murray Counsel for the Accused: P. Blokmanis Place of Hearing: Victoria , B.C. Dates of Hearing: July 10 and 11, 2019 Date of Judgment: August 19, 2019 INTRODUCTION [ 1 ] The Accused is charged that on the 14 th day of May, 2018 in Victoria, British Columbia that he sexually assaulted R.A., “the Complainant”, contrary to

section 271 of the Criminal Code . For the reasons that follow I find him guilty as charged. Facts [ 2 ] On the evening of May 13, 2018, the Complainant went out for the evening to celebrate the birthday of a close friend. In preparation for the evening’s festivities, she drank four or five cans of an alcoholic beverage which she indicated had a 5% alcohol by

volume. She was dressed in a blouse and coverall shorts which had a bib and strap attachment over her shoulders. She decided to smuggle a mickey of vodka into the nightclub to lessen the cost of the evening. [ 3 ] At the nightclub the special drink of the evening was a small plastic sand bucket filled with an alcoholic beverage. The Complainant testified that she believed there was three ounces of alcohol in each plastic bucket. She had two of those buckets of alcohol.

She supplemented the alcohol in the plastic bucket with alcohol from her mickey and testified that she and her friend, with whom she was there to celebrate, split the mickey of vodka equally. Sometime later in the evening her friend became ill in the washroom and was escorted out of the premises. The Complainant remained on the premises and socialized with other individuals she’d met in the bar that evening. [ 4 ] Eventually that

section of the bar closed and she retired to the lower floor of the same bar where she met the Accused. She recognized the Accused as a man who ran a local restaurant. She approached him and struck up a conversation which, she testified, lasted to the end of the evening. During that period of time, she drank two more alcoholic drinks provided to her by the Accused.

She agreed that during the course of the time they were together that she would have been talkative and flirtatious with the Accused because that was her nature. [ 5 ] At closing time, she told the Court that she and the Accused decided to go get food and walked ultimately to a Burger King where she acquired some chicken nuggets. She testified that when she left Burger King with her chicken nuggets, the Accused hailed a cab and she got into the cab with the Accused.

She said that at this point in the evening she is going along with whatever plans were developing by the moment. [ 6 ] On the walk to Burger King, some four or five city blocks, there was physical contact between her and the Accused that consisted primarily of the Accused having his arm around her shoulder in what one would describe as a friendly manner. She specifically denied that she ever kissed the Accused in the bar or anywhere.

She was pressed repeatedly on this point and was adamant in her denial that she and the Accused never kissed. [ 7 ] After the two arrived at his apartment, she sat on the sofa and began to eat her chicken nuggets. She testified in direct examination that shortly after that she fell asleep on the couch. She agreed in cross examination that in fact there was a period of time before she fell asleep that she could not put together the memory of what happened. As a result, she was not prepared to deny that prior to her falling asleep that the Accused asked if he could give her a massage.

She has no idea, obviously, how long this period of no recollection lasted. [ 8 ] Her next recollection was waking up, that her shorts are down around her knees, her bra and blouse are pulled up above her chest, and the Accused is digitally penetrating her from behind. She could also feel that the Accused appeared to be masturbating against her buttocks. She was confused by what was happening and her first reaction was to simply let him finish what he was doing. She shortly changed her mind and sat up and confronted the Accused.

She testified that he, when confronted, looked shocked and guilty. [ 9 ] She insisted that he call her a cab immediately and he did so. He also repeatedly asked her if she was okay. She advised him that she was okay but wanted to leave immediately. While waiting for the cab, she contacted her boyfriend and made arrangements to go to his residence for the night. She testified that she spent most of the rest of the night talking to her boyfriend about what had happened and trying to decide what to do. After a day and a half of reflection, she decided to call the police and the investigation commenced.

She was specifically questioned as to whether or not she went outside to call the police the night of the assault in response to her boyfriend urging that she should call the police. She denied ever going outside to call the police but did testify that she thought she might have gone outside to speak to the police in private when the police called back several days later. [ 10 ] The Complainant’s boyfriend testified and confirmed that he received a phone call early in the morning of May 14, 2018 and that the Complainant asked if she could come to his home and spend the evening there.

He confirmed that when she arrived at his residence, she was very upset and emotionally distraught. He testified that he encouraged the Complainant to phone the police and his recollection was that sometime during that first evening, she stepped outside to make that phone call to the police. While this is in contradiction to the reality that indeed the police were contacted two days later, as the Complainant testified, in my view it is a simple error in the Complainant’s boyfriend’s memory and makes no material difference to the analysis of this matter.

It certainly does not impugn the credibility or reliability of the Complainant’s evidence. [ 11 ] The Accused also testified. He agreed that he met the Complainant at the bar when she approached him and struck up a conversation. He testified that she was flirting with him and they had a pleasant time together. He testified, in contrast to the evidence of the Complainant, that at some point during that time together the Complainant gave him a long and passionate kiss lasting 20 or 30 seconds.

The kiss was described as a full kiss on the lips. [ 12 ] He testified that prior to the bar closing, the Complainant walked away from him and he lost track of her. He did not see her again until he was leaving the bar. At that time, he saw her speaking to another man and the friend with whom he had come to the bar encouraged him to go speak to her. He says that when he did so, they had a short conversation about wanting to get food and the two of them wandered down the street together to Burger King where they acquired chicken nuggets.

During the walk to Burger King, he believes that he held her hand and that he was very happy to be in the company of such a “pretty girl.” [ 13 ] At Burger King, chicken nuggets were ordered for the Complainant and paid for by the Accused. The parties agreed that they left Burger King and got a cab so they might enjoy their food elsewhere. Initially the Accused testified that he summoned a cab with no clear idea as to where he was going. He only decided to direct the cab back to his apartment once he was sitting inside the cab with the Complainant.

His evidence on this score changed significantly on cross examination when he changed his story to say that there had been a conversation outside of the cab about whether or not the two would return to his apartment. [ 14 ] He testified that once they were back at the apartment, the Complainant sat down and began eating her chicken nuggets. He testified they were having a pleasant evening and enjoying good social conversation. He believed that the Complainant was continuing to flirt with him because, for example, she tried to feed him a chicken nugget directly into his mouth.

He testified that he said to the Complainant “I’m very intoxicated, can I give you a massage?” To which she agreed. He says that she laid face down on the sofa and he

began to rub her neck and shoulders moving his hands down her back. At some point early on in the massage, he unbuttoned the buttonson the front of her coveralls. He testified that he continued to massage her and began to massage her buttocks and then her crotch over hervagina on top of her clothing. He said at this point that he put his hands under her body and massaged her breasts under her brassiere.

Inor around this time he says that he asked the Complainant how she was doing and she replied “good.” [15] Shortly thereafter, the Accused left his position massaging the Complainant and went into his bedroom to freshen up. Hebelieved that he was going to have intercourse and wanted to make himself ready. He says that he brushed his teeth, showered and put onpyjama bottoms before returning to the living room some five or six minutes later.

When he returned to the living room, he pulled theComplainant’s shorts down below her buttocks exposing her genitals and pulled her blouse and brassiere up above her breasts so hecould touch those as well. He confirmed that he penetrated her digitally and began to manipulate his penis. He agrees that 20 or 30seconds after this commenced, the Complainant sat up and asked him what he was doing and insisted he call her a cab. Both parties agreethat at the moment the Accused was challenged with respect to his behaviour, he stopped and assisted the Complainant in arranging for acab, or at least a ride home.

Both parties agree that during the period between the end of the physical behaviour and the arrival of thecab, he repeatedly asked the Complainant if she was alright. [16] The Accused also called his friend with whom he attended the bar that evening as a witness. His friend essentially corroboratedthe Accused’s story with respect to the events at the bar and the interactions between the Accused and the Complainant. The Accused’sfriend confirmed that, from his observations, it appeared that the Complainant was showing great interest in the Accused.

He alsodescribed that he observed the Complainant giving the Accused a small kiss or peck on the cheek during their interactions at the bar. Healso confirmed that he observed the Complainant and the Accused holding hands or touching in some fashion at the Burger King. Issue [17] The central issue here is whether the Crown has proven beyond a reasonable doubt whether the Accused sexually assaulted theComplainant.

Position of the Parties The Crown [18] The Crown submits that the touching of the Complainant from the moment he touched her buttocks was without theComplainant’s consent and was a violation of her sexual integrity. They say the testimony of the Accused is unreliable and ought not tobe believed and as such, there is no air of reality to the defence of an honest, but mistaken belief in consent. Finally, they say that if therewas some evidence on which the Court could consider a defence of honest but mistaken belief in consent, that the defence has not beenestablished.

The Defence [19] The defence submits that the Court ought to accept the evidence of the Accused and as such all of the touching in question waswith the consent of the Complainant. Alternately, even if there is no doubt that the Complainant did not consent, that the Accused heldan honest belief that she was consenting to the touching throughout the contact between the Accused and the Complainant.

Analysis [20] The Accused is entitled to the presumption of innocence throughout these proceedings and a conviction cannot flow unless theCrown has rebutted that presumption by establishing beyond a reasonable doubt that the Accused touched the Complainant, that thetouch was without her consent and that the touching violated the Complainant’s sexual integrity. R. v. Chase, (SCC),[1987] 2 S.C.R. 293 (S.C.C.) [21] There is no question that the touching of the Complainant’s buttock and vaginal area outside her clothing offended theComplainant’s sexual integrity.

There is also no question that the touching that occurred after the Accused returned from the bathroom ofinserting his fingers into the Complainant’s vagina while he masturbated offended the Complainant’s sexual integrity. I am satisfied thatthe touching in question has been proven beyond a reasonable doubt to constitute a sexual assault.

The real question in this case iswhether the Crown has proven beyond a reasonable doubt that the Complainant did not consent to that touching. [22] It is always difficult for the Courts to create hard and fast rules as to the expectations of persons wishing to engage in sexualrelations. The criminal law is defined by fundamental principles that require application to individual facts on a case by case basis. Thistask is often made more complex in the fact finding process by the frailty of memory and the evidence available when these relationshipsoccur following a night of alcohol or drug consumption.

The Court is first called upon to assess the evidence of all of the witnesses anddetermine what evidence is reliable and credible, and which is not. I must ask myself if I accept the evidence of the Accused and if so,does it raise a reasonable doubt? If I reject the evidence of the Accused and do not know who to believe that too may raise a reasonabledoubt. Finally, if I reject the evidence of the Accused, I must still ask myself whether, considering all of the evidence I do accept, has theCrown proven the Accused’s guilt beyond a reasonable doubt. R. v.

W.(D.) (SCC), [1991] S.C.J. 26 (S.C.C.) [23] I appreciate that this statement of the principals of W.(

D) vary slightly from the traditional version because, in my view, even if Ido believe the evidence of the Accused, I may still be satisfied beyond a reasonable doubt on his own evidence that his behaviourconstituted an offence. [24] The assessment of credibility is always a difficult task and, as indicated above, made significantly more difficult whensignificant levels of alcohol consumption are involved. By their own evidence, both the Complainant and the Accused had consumed asignificant amount of alcohol before the events in question.

Curiously, both the Complainant and the Accused minimized their respectivelevels of intoxication. Both the Complainant and the Accused had significantly different versions of parts of the evening. [25] The Accused was a credible witness. He gave his evidence in a direct and forthright manner and, on the whole, I accept his

evidence. His evidence is weakened by the deliberate deceit he told the Court when he changed his evidence dramatically around thequestion of when he decided to take the taxicab back to his apartment. While such a deceit may, on occasion, be a reason to reject of allof a witness’ evidence, I am not satisfied that this dishonest statement is so serious. The Complainant was also a credible witness. Herevidence was weakened by her adamant denial that she never kissed the Accused at the bar. On this point, I accept the evidence of theAccused’s friend who observed the kiss but described it as a familial peck.

Consequently I reject the evidence of the Accused when hedescribes that kiss as a passionate kiss. I find that the Complainant gave the Accused familial a peck sometime during the course of theirinteractions in the bar. The Accused has come to perceive that as a passionate kiss while the Complainant has forgotten the kiss entirely.Both versions are perfectly reasonable on these facts. [26] The Complainant’s credibility was heightened by her candid admission that, prior to “falling asleep” on the Accused’s couch,there is a period of time that she simply cannot retrieve her memory.

I accept the Accused’s version of events between the time in whichthey were sitting on the couch and the time she lay down. I find as a fact that the Complainant lost consciousness very shortly after themoment that she lay down on the sofa. [27] I find as a fact that the Complainant never willingly agreed to the touching of her buttock or vagina over her clothing as part ofthe massage. On the other hand, I am satisfied on the balance of probabilities that the Accused was mistaken with respect to that fact andthat the mistake was reasonable in the circumstances.

As such I’m not prepared to find that the Accused is guilty of a sexual assault forhis behaviour involving touching the Complainant on her buttock or rubbing her crotch over her clothes during the course of themassage. [28] With respect to the events that occurred after he returned from his shower, my conclusion is very different. As Mr. JusticeMajor observed in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 (S.C.C.): [T]he absence of consent… Is subjective and determined by reference to the complainant’s subjective internal state of mind toward thetouching, at the time it occurred.

In determining the actus reus, the Court must look as to whether or not the Complainant actually consented to the sexual touching at thetime it occurred. I am satisfied beyond a reasonable doubt that the Complainant lost consciousness before the Accused ever touched herbuttock and crotch over her clothes. The Complainant remained unconscious throughout the entire event until she woke up andconfronted the Accused. This means that the actus reus has been proven beyond a reasonable doubt. [29] I must go on to consider the mental state or mens rea of the Accused at the time of both touching events.

Section 273.1(

b) of theCriminal Code provides that no consent may be had with respect to the offence of sexual assault if, “the Complainant is incapable ofconsenting to the activity”.

Section 273.2(

b) of the Criminal Code further provides that a belief in consent is not a defence where, “theaccused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant wasconsenting”. [30] The defence of an honest but mistaken belief in the consent of the Complainant is a defence which the Crown must negativebeyond a reasonable doubt and is defined by the Supreme Court of Canada as follows: The cases on the mens rea defence of honest but mistaken belief in consent take the same view.

At common law, this was a standarddefence of mistake of fact: the accused was not guilty if he honestly believed a state of facts, which, if true, would have rendered hisconduct lawful: Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120, at pp. 134 and 139.

In Ewanchuk, this Court heldthat it is not sufficient for the accused to have believed that the complainant was subjectively consenting in her mind: "In order to cloakthe accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engagein the sexual activity in question" (para. 46 (emphasis in original)). See also Park, at para. 39 (per L'Heureux-Dubé J.).

It thus is notsufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, andmust believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if thecomplainant is unconscious. R. v.

J.A., [2011] 2 SCR 440, 2011 SCC 28, [2011] 2 RCS 440, [2011] SCJ No 28, [2011] ACS No 28 [31] So the issue for me is whether the Crown has proven beyond a reasonable doubt that the Accused took all reasonable steps todetermine whether her consent to the sexual activity was operating at the time of the actual physical contact. [32] Sexual activity is obviously a continuum. A smile may lead to a kiss, a kiss to an embrace, an embrace to foreplay and forepayto greater sexual contact and ultimately sexual intercourse.

The Complainant is entitled to withdraw her consent at any time in theprocess and he or she is entitled to have his or her wishes respected by their partner. Similarly, in a situation where consent is withdrawn,not actively but by the onset of incapacity of the Complainant, at that moment his or her consent is effectively withdrawn. He or she isentitled to be free of any contact thereafter. It cannot be sustained that the consent continues until it is actively withdrawn. Of course thisis consistent with the authorities.

Again from Ewanchuk: For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence: see R.v. M. (M.L.), (SCC), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that thecomplainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact.An accused cannot say that he thought "no meant yes". As Fraser C.J. stated at p. 272 of her dissenting reasons below: One "No" will do to put the other person on notice that there is then a problem with "consent".

Once a woman says "No" during thecourse of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal "Yes" beforehe again touches her in a sexual manner. [Emphasis in original.] I take the reasons of Fraser C.J. to mean that an unequivocal "yes" may be given by either the spoken word or by conduct. Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused

should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the merelapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent nowexists, nor can he engage in further sexual touching to "test the waters". Continuing sexual contact after someone has said "No" is, at aminimum, reckless conduct which is not excusable. In R. v.

Esau, (SCC), [1997] 2 S.C.R. 777, at para. 79, the Courtstated: An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issueis precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code, s.273.2(a)(ii). R. v. Ewanchuk, (SCC), [1999] 1 SCR 330, [1999] 1 RCS 330, [1999] SCJ No 10, [1999] ACS No 10 [33] Similarly in R. v.

Barton, 2017 ABCA 216, the Alberta Court of Appeal proposed a jury instruction on this issue which reads: Consent means the voluntary agreement of the complainant to engage in the sexual activity in question: did she subjectively consent inher mind to that activity at the time it was occurring? The consent must be to each and every sexual act in question. The complainant isunder no obligation to express her lack of consent. Silence does not equal consent. Nor does submission or lack of resistance.

Agreementto one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body isnot agreement to all sexual touching. To be valid, the complainant must be conscious and capable of consent throughout the sexualactivity. Consent cannot be implied from the relationship between the accused and the complainant. A complainant may revoke consentor limit its scope at any time. R. v.

Barton, [2017] AJ No 681, 2017 ABCA 216, 2017 CarswellAlta 1167, 38 CR (7th) 316, 55 Alta LR (6th) 1, 386 CRR (2d) 104, 354CCC (3d) 245, 140 WCB (2d) 605, [2018] 1 WWR 450 at paragraph 217 [34] The analysis is equally applicable when the facts are that the Complainant has lost the capacity to consent at any time in thecourse of the sexual activity.

Has the Crown proven beyond a reasonable doubt that the Accused knew or ought to have known that theprevious consent was withdrawn as a result of her incapacity and has the Crown proven beyond a reasonable doubt that the Accusedfailed to take all reasonable steps to ensure that, in the circumstances, the Complainant’s consent was a continuing one? [35] As indicated above, I find as a fact that shortly after the Accused asked the Complainant if she wished for massage, she lostconsciousness and the ability to consent.

I accept the Accused’s evidence that at the time that he massaged her neck, back, buttocks andcrotch, he believed, for that relatively short period of time, that her consent was active and I’m not satisfied beyond a reasonable doubtthat he had failed to take reasonable steps to ensure that her consent continued to be valid. [36] On the other hand, I am satisfied beyond a reasonable doubt that the Accused failed to take reasonable steps to ensure that theComplainant was consenting to all of the activity that occurred after he returned from freshening up in the bathroom.

By the Accused’sown evidence, which I accept, the Complainant had made no it response to his massage. At no time did she reciprocate either physicallyor verbally to convey any ongoing consent. Even if the Accused asked the Complainant whether or not she was alright and theComplainant responded “good”, that does not constitute reasonable steps to ensure that she was consenting after he returned from thebathroom five or six minutes later. By his own evidence, the Complainant had still not moved a muscle since she went face down on thecouch.

To continue touching the Complainant thereafter when the Accused must have known that the Complainant was likely blackedout is tantamount to “testing the waters”.

At the time that the Accused returned and found the Complainant facedown, not having moveda muscle, a reasonable person would be expected to make positive inquiries to ensure that they had a positive response by words oractions of the Complainant’s consent to engage in further sexual activity. [37] It is for this reason that, although I accept the evidence of the Accused, and it certainly raises a reasonable doubt with respect tothe activity prior to retiring to the bathroom to freshen up, it does not raise a reasonable doubt with respect to taking all reasonable stepsto ensure the consent of the Complainant after he returned from the bathroom when, I find as a fact, she was unconscious.

As Mr. JusticeHill wrote in R. v. T.S. [1999] O.J. 268: It is dangerous to interpret passivity or acquiescence as conveying consent. Compliance or apparent submission, depending on thecircumstances may or may not involve a true consent.

A complainant is not obliged to offer some minimal word or active gesture ofobjection to communicate the nonexistence of consent: … As a general rule, nonverbal behaviours, when relied upon as expressions of consent, must be unequivocal. … [38] At a time when the Accused ought to have known that the Complainant was no longer conscious and therefore incapable ofconsenting, to accept her passivity as consent is entirely unacceptable. [39] For the above reason I find the Accused guilty as charged. _________________________________ The Honourable Judge D.M. McKimm Provincial Court of British Columbia