R. v. Dacosta and Jorge Date:, 2012 BCPC 19

Citation: R. v. Dacosta and Jorge Date: 20120130 2012 BCPC 0019 File No: 209689-5-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MANUEL SANTIAGO DACOSTA ELIANO JORGE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Crown: J.A. Cochrane Counsel for the Accused Dacosta: D. Hopkins Counsel for the Accused Jorge: B. Coleman, QC Place of Hearing: Vancouver, B.C.

Dates of Hearing: Feb. 1, 3-4, 7-11; Aug. 31; Sept. 7, 15-16; Oct. 17; Nov. 28, 30, 2011 Date of Judgment: January 30, 2012 A corrigendum was released by the Court on January 30, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The Accused, Manuel Santiago Dacosta (Dacosta), and Eliano Jorge (Jorge) face charges of sexual assault and uttering threats in relation to MU, at Burnaby, British Columbia, on or about October 11, 2009. Both Dacosta and Jorge testified at their trial and denied the allegations.

Each blamed the other for any sexual assault of MU. Both denied threatening MU. ISSUE [ 2 ] The sole issue to be determined is whether or not the Crown has established either or both charges beyond a reasonable doubt in relation to either Dacosta or Jorge, or both. BACKGROUND [ 3 ] Roger Ouellet (Ouellet) was the building manager of an apartment complex in Burnaby in October of 2009. Ouellet knew Dacosta as he was a resident at the apartment complex. [ 4 ] In direct examination, Ouellet testified he was awakened on October 11, 2009, at 6:00 am in his suite when he heard a commotion coming from Dacosta’s suite.

This suite was immediately adjacent to Ouellet’s suite. At the same time, his telephone was

ringing. When he answered the phone, he testified that he spoke to Melissa Dick, who was also a resident of the apartment complex; she complained of the commotion. Ouellet got out of bed and called Dacosta on his phone. Someone picked up the telephone in response to the call but then hung-up. Ouellet went to Dacosta’s suite and heard a female screaming from within. He described the screaming as being “very high pitched”. [ 5 ] When Ouellet knocked on the door, Dacosta answered and told Ouellet that his friend, later determined to be Jorge, was fighting with his girlfriend.

Ouellet could see into the suite and saw Jorge holding on to MU. [ 6 ] Ouellet then partially entered Dacosta’s suite and testified that Jorge was on a couch with MU positioned beside him. Ouellet told Dacosta that the female, MU, had to stop screaming or he would call the police. Ouellet then left the suite. [ 7 ] The screaming continued so Ouellet called the RCMP on their non-emergency line requesting they attend at the apartment complex. Ouellet then returned to Dacosta’s suite, entered the suite, and observed a physical confrontation between Dacosta and Jorge. He thought he saw a knife.

Ouellet also recalled that Dacosta pushed Jorge up against the stove in the kitchen. He then saw MU run from the apartment wearing only upper body clothing. She began banging on the door of an unoccupied suite within the apartment complex. [ 8 ] Ouellet then testified that Dacosta brought clothing for MU from his suite and gave the clothing to MU. MU promptly threw the clothing to the ground and continued screaming and banging on the door of the unoccupied suite.

Ouellet then recalled that several members of the Burnaby RCMP arrived on scene and those officers took control of the situation. [ 9 ] Ouellet was unable to understand anything that MU was saying as she was speaking a foreign language. Ouellet testified that Dacosta’s suite appeared to be in some disarray.

Additionally, Ouellet testified that Melissa Dick was also in the hallway adjacent to Dacosta’s suite when the police arrived. [ 10 ] Ouellet was extensively cross-examined and the impact of that cross-examination shall be addressed in the Analysis and Disposition aspect of my Judgment. [ 11 ] Melissa Dick testified in direct examination that she awoke at approximately 5:45 am when she heard the commotion from Dacosta’s suite. Her suite is above Dacosta’s suite. She recalled hearing a female screaming.

She then telephoned Ouellet to complain about the noise. [ 12 ] Melissa Dick testified that the screaming continued after her call to Ouellet so she decided to get out of bed and see what was going on. When she was outside of the hallway of Dacosta’s suite, she saw a female emerge from Dacosta’s suite. She noted this person was screaming, was naked from the waist down and was banging on the door of a suite. [ 13 ] Melissa Dick also recalled that Dacosta told her that the female was a girlfriend of his friend Jorge.

She was unaware as to what caused this commotion to take place, but noted when the RCMP arrived on scene that the female continued to scream and appeared to be inconsolable. [ 14 ] Melissa Dick was of the opinion that the female may have been on drugs, though she had little basis for making such an opinion. The possible drug involvement was pressed through the cross-examination of Melissa Dick by Mr. Hopkins and Mr. Coleman. Her credibility in the face of her cross-examination shall be addressed in the Analysis and Disposition aspect of my Judgment. [ 15 ] MU required the assistance of a Portuguese interpreter.

In direct examination, MU told the Court she was born in the Congo, and when she was 16 years of age she moved to Ethiopia and from Ethiopia onto Canada. MU was approximately 23 years of age as of October 11, 2009. [ 16 ] MU testified that she had been visiting a friend in Surrey the evening of October 10, 2009, and that at or around 9:00 pm of that date, she decided to go home. The plan was for her former boyfriend, Rob, to drive her home. However, Rob was unable to drive her home so apparently a third party would pick her up.

Unfortunately, that did not work out, but a person by the name of “James” ended up arriving at her friend’s place in Surrey with two other male persons and it was the plan that James would drive MU to a location where Rob could drive her home. [ 17 ] At this point in MU’s evidence, events and locations became quite confusing as to who picked up MU and where they were to go. Suffice it to say that MU did not meet up with Rob, but ended up with James and the other two males at a house in Surrey where a party was taking place.

MU was relatively vague on details as to what was taking place at the party, but denied that she consumed any alcohol or illicit drugs at this house. [ 18 ] After approximately 20 to 30 minutes at this party in Surrey, MU left with James and the two males to go to the Anza Club in Vancouver. While on route to the Anza Club, James stopped at his residence in Surrey and he changed his clothing. [ 19 ] Once James had changed his clothing, MU recalled that they went to her residence in New Westminster where she changed her clothing.

She recalled this was between 10:00 pm to 10:30 pm on October 10, 2009. [ 20 ] While originally it was MU’s understanding that they were going to go to the Anza Club, they then ended up at another house in Surrey where a birthday party was taking place. MU recalled that there were approximately 20 people and plenty of food and alcohol at the party. MU recalled that she danced and mingled with the party goers. [ 21 ] MU further testified that she recalled being at this party until approximately between 3:00 am and 4:00 am on October 11, 2009.

She recalled that she had two to four glasses of red wine and while she was feeling “good” and somewhat “tipsy”, she was otherwise fine. [ 22 ] When the party was winding down, MU had a rather loose plan as to how she was going to get home. When asked by Crown

Counsel what her plan was, the following exchange took place: Q. It’s quite early in the morning now. Did you have a – a plan to get home now that you arranged? A. My friend – not my friend, I mean the person I was with, so he promised me to get back home – to take me back home. Q. This – This is the person that was in the vehicle with you in the backseat of the car? A. Yes. (Transcript, February 3, 2011, p. 17, lines 36-43) [ 23 ] When further questioned by Crown Counsel as to where MU went next, the following exchange took place: Q. Okay. And this person and you, where did you go next? A.

So next I was in the car, like there was another car, a different car waiting for me, so those people – everybody was in the car, that person come back inside to take me say, you know, we have to go, we have to leave, people are waiting us in the car. So we left a different car. I don’t know this people was driving, but this person know those people, so these people for me I thought they was driving me home.

So they’re driving to different house again. (Transcript February 3, 2011, p. 18, lines 10-21) [ 24 ] MU testified that she was a passenger in this car with Jorge and Dacosta as passengers and Rocky as the driver. They arrived at Dacosta’s apartment building and she testified all three went into Dacosta’s suite. [ 25 ] MU recalled that Dacosta started smoking marijuana and playing music. MU played some music as well. MU denied smoking any marijuana. She then testified that Jorge took her by her hand and they went towards the bedroom.

MU testified that in the hallway she was fondled by Jorge, which she did not like. Somehow they ended up in the bedroom and she described that it was Jorge who took off her pants and sexually assaulted her. She fought back against the sexual activity. [ 26 ] MU went on to testify that events became quite chaotic and that Dacosta joined in the sexual assault with Jorge and that one of the two, or both, hit her.

She fought back during the ongoing assault. [ 27 ] MU testified that she was very “frustrated” as to what was taking place, and she further testified that she could not see what was going on because it was too dark. Somehow she managed to flee the suite into the hallway. [ 28 ] The Court asked MU how she ended up running into the hallway in the following exchange: THE COURT: And how did this end that you ended up running out, what – what happened? So just expand on your story. What happened that caused you to – how did you get away, like what happened? A.

Oh, how I got away, I – I get up, I said I have to fight myself, I’m not going to let this keeping happening to me, so I get up, I went crazy and then I start – like this person, different person start like hitting me everywhere and calling me name. So then I say even if I’m dead right now it’s no big problem, so do that you want to do.

So I get up and then start fighting, hit everywhere, so – and then I don’t know how I find the door and run away outside. (Transcript, February 3, 2011, p. 29, lines 23 to 37) [ 29 ] In relation to the threat allegation, MU testified that one of the two accused threatened to kill her. She further testified that she was called various names at the time the threat was made, including being called a “hooker”. [ 30 ] After the RCMP arrived, MU was taken to the hospital for treatment. Photographs were presented to her at trial, which she identified and formed part of the evidence presented by the Crown.

Those photographs reveal that MU sustained eleven visible injuries, though none was life threatening. [ 31 ] MU was extensively cross-examined by both Mr. Hopkins and Mr. Coleman. The impact of their cross-examination on the credibility of MU will be addressed in the Analysis and Disposition aspects of this Judgment. [ 32 ] Markus Barroso (Barroso) was called as a witness on behalf of Jorge. Barroso testified he was 30 years of age and was born in Angola. Barroso testified that he had known Jorge for approximately nine years and that they travelled together.

He testified that he also knew Dacosta as an acquaintance for approximately five years. [ 33 ] Barroso testified that he was with Jorge for a portion of the evening commencing in or about the late hours of October 10, 2009, and continuing into the morning of October 11, 2009. [ 34 ] Barroso testified that he met up with various people throughout the evening of October 10, 2009, including Jorge. At one point in the evening of October 10, 2009, Barroso testified that Jorge received a telephone call on his cellular phone. Following that call they drove to New Westminster.

They ultimately ended up picking up MU. [ 35 ] Thereafter, the three of them went to Barroso’s apartment where he changed his clothes and he ate some food. The group then went to a residence in Surrey where a party was taking place. Barroso testified that Jorge and MU appeared to be getting along well. He recalled that MU was drinking some liquor and was dancing. After a few hours, Barroso drove a friend of his home and he returned to

the party, which was now winding down. [ 36 ] At the time that Barroso left the party he noticed that Jorge and MU got into the backseat of a car together. They seemed very comfortable together. Barroso recalled this was at or about 2:00 am. [ 37 ] Much like MU, Barroso’s recollection of events throughout the evening of October 10, 2009, and into October 11, 2009, was confusing in relation to timing and travel destinations. [ 38 ] Dacosta testified in direct examination, through the assistance of an interpreter, that he was 43 years of age and, like Barroso, was born in Angola.

He left Angola when he was 23 years of age and lived in Namibia, Zambia and Ethiopia before arriving in Canada. [ 39 ] Dacosta has a daughter from a previous relationship with whom he enjoys a close relationship. He testified that on October 11, 2009, he was planning to attend a soccer game with his daughter. Dacosta testified that he had a few bottles of beer on the afternoon of October 10, 2009, and that he also smoked a marijuana cigarette.

Though not initially planning to go out that evening he decided to do so at the urging of several friends who were visiting Dacosta at his suite. [ 40 ] Dacosta’s recollection of events was somewhat confusing. He recalled being at a party in Surrey and that Jorge attended that party with MU. Dacosta consumed some whiskey at the party and he may have had a beer or two as well. He recalled that the party ended around 4:00 am. When the party ended, he testified that he got a ride back to his suite with someone by the name of “Rocky”.

He was the front passenger with Jorge and MU in the backseat. [ 41 ] When they got to his suite, Dacosta testified that Jorge and MU got out of the car and followed him to his suite. Dacosta testified that in the past Jorge would occasionally visit him at his suite and, on occasion, would spend the night. [ 42 ] Dacosta testified that all three first went into the living room of his suite and that he turned on some music and rolled a marijuana cigarette. He testified that all three smoked the marijuana cigarette.

He recalled MU also played some music. [ 43 ] Apparently nothing untoward was taking place and he decided to leave his suite and go to a local Automated Teller Machine (ATM) several blocks away to get some money so he could take the Skytrain to his daughter’s soccer game that day. ATM camera footage indeed shows Dacosta was at an ATM at 5:26 am on October 11, 2009. [ 44 ] When Dacosta returned to his suite he noted that the patio door was open. He heard noise from the bedroom and testified that he went to the bedroom and saw Jorge on top of MU and that some sexual activity appeared to be taking place.

Dacosta testified that he was very upset about this activity and confronted the two by asking: “What are you doing in my fucking bed?” Dacosta then went on to describe a relatively chaotic scene with MU yelling and screaming while Jorge was trying to put on his pants. [ 45 ] At one point, Dacosta recalled that MU seemed to be trying to leave via the patio door and then she ended up in the hallway, screaming and yelling, while pounding on a door of a suite.

Dacosta recalled that he tried to give MU her clothes but she threw them to the ground. [ 46 ] Dacosta denied that he had any sexual contact with MU and testified that if anyone was an aggressor it was Jorge rather than himself. He denied any knife was in play in his confrontation with Jorge. [ 47 ] Dacosta was extensively cross-examined by Mr. Coleman and Mr. Cochrane.

The impact of the cross-examination on the credibility of Dacosta shall be addressed in the Analysis and Disposition aspect of this Judgment. [ 48 ] Jorge testified in direct examination that he was 31 years of age and had completed the equivalent of grade 12 with some post- secondary training. [ 49 ] Jorge testified that he had met MU approximately two weeks prior to the allegations before the Court at an African Cultural Centre. He felt that the initial meeting was friendly. [ 50 ] On October 10, 2009, Jorge met up with two friends in the afternoon.

He bought a six-pack of beer and went to the residence of one of the two friends. At this residence, he testified that he had a couple shots of vodka, along with two beers over a seven hour timeframe. [ 51 ] Again, like MU and Dacosta, Jorge testified that he met up with numerous individuals, ultimately resulting in his arriving at a party in Surrey. He recalled that he went to this party at around 9:45 pm and there was not much going on. [ 52 ] He then testified that he and two of his friends decided to go to the Anza Club in Vancouver to party some more, but when they arrived at the Anza Club, it was closed.

This small group checked out another club but it was described by Jorge as being essentially dead. Jorge further testified that he then got a telephone call from MU who wanted to know what they were up to. Jorge testified that he told MU that they were going to go to a party in Surrey and she asked if she could be picked up as well to join his group and go to the party. [ 53 ] MU was picked up by Jorge and his group and they carried on to the Surrey party. Jorge described the party as a good social event and people, including MU, were dancing and drinking. [ 54 ] At around 4:00 am the party began to wind down.

Jorge testified that he ended up in the backseat of a car with MU, and Dacosta sat in the front passenger seat. Rocky was the driver. [ 55 ] Though there did not seem to be any set plan, Jorge testified that he, MU and Dacosta ended up at Dacosta’s suite. He recalled that when in the suite Dacosta rolled a joint and all three of them smoked the marijuana cigarette. [ 56 ] Jorge then testified that MU went into the bedroom and called him to join her. He described the relationship as “flowing

naturally”. He described that the two of them were “making out” when suddenly MU suggested that they should go to her place. Jorgeagreed with the suggestion and testified that he told MU that he would “freshen up” with a shower and then he would call a cab to go toher place. [57] Jorge testified that he took a shower and when he came out of the shower, he saw Dacosta on the bed with MU and he observedthat Dacosta was sexually assaulting MU. Jorge became upset at Dacosta and swore at him. He next observed that Dacosta grabbed MUby the throat and starting slapping her.

Jorge also recalled that MU began screaming and Dacosta tried to silence her. [58] Jorge testified that MU was trying to get away from Dacosta by going behind him (Jorge) in a defensive position. It was ataround this point that Jorge recalled hearing a loud bang at the door of Dacosta’s suite and he next saw Ouellet with a phone in his handin the suite. [59] MU continued to scream and Jorge testified that he tried to comfort MU in the living room, but she was inconsolable.

Jorge alsotestified that MU was naked from the waist down and that it was his opinion that this was “not appropriate”. [60] Jorge testified that MU fled Dacosta’s suite into the hallway. When asked by Mr. Coleman to describe what happened at thispoint, the following exchange took place: Q Okay. Did you -- did she go outside or where -- tell His Honour what happened.

A I was -- I was -- I was in the hallway, and then she was just laying on the floor and moving her legs uncontrollably and screaming,screaming on top of her lungs, just screaming and moving her legs uncontrollably on the floor like a -- like a kid literally. It seems like she was -- I don't know if she was trying to draw attention or something. And I -- from that point, I said, "I don't want anything to do with this. I don't want to get involved," you know.

I left through the --'cause he lived -- he lived on the first -- first floor, and I left through the balcony 'cause I usually -- sometimes I leave through the balconywhen I come over to his place. I left through the balcony, and I went for a walk. He gave me a cigarette, and I went for a walk. I went two blocks -- (Transcript, September 15, 2011, p. 18, lines 41-47; and p. 19, lines 1-13) [61] Jorge testified that after a short period of time he returned to the suite where he was arrested. Jorge denied that he assaulted MUin any way whatsoever in the following exchange between Mr.

Coleman and Jorge: Q Did you ever assault MU in any way? A I couldn't. The whole time I was there, I was protecting her. When that thing took place, I was protecting her. If I would have goneinto the room, none of that would have taken place. (Transcript, September 15, 2011, p. 19, lines 22-26) [62] Jorge was extensively crossed-examined by Mr. Hopkins and Mr. Cochrane. The impact of that cross-examination on thereliability and credibility of Jorge shall be addressed in the Analysis and Disposition aspect of this Judgment. POSITION OF THE PARTIES [63] Mr.

Cochrane for the Crown takes the position that the Court should carefully consider the evidence of Ouellet and Melissa Dickas corroborative of the evidence given by MU. In particular, that the hysteria of MU would be entirely consistent with her evidence thatshe was sexually assaulted by both accused. [64] Mr. Cochrane also reminded the Court that in Admissions that were filed at the commencement of the trial, DNA samplesreceived from MU and from Jorge established a mixed DNA profile in which Jorge’s DNA was a major component. [65] As well, Mr.

Cochrane submitted that the injuries sustained by MU, which also formed Admissions in relation to the trial,coupled with the photographs, would further corroborate her evidence that she was physically assaulted by either or both accused. [66] Mr. Hopkins for Dacosta and Mr. Coleman for Jorge took the position that the evidence of MU as to what took place during thealleged assault simply could not be accepted.

In particular, it was submitted by both Counsel that the Court could not rule out that MUhad been drinking and smoking marijuana, both at the Surrey party and also at Dacosta’s suite, thus impacting her ability to recollect. [67] Mr. Hopkins reminded the Court that the photographs of Dacosta at the ATM at 5:26 am on October 11, 2009, demonstratedconsistency in the evidence of Dacosta as he was planning to go by Skytrain to attend his daughter’s soccer game that day. [68] Indeed, it was the position of Mr.

Hopkins that if anything Dacosta was the saviour for MU who was being sexually assaulted byJorge when he returned to his suite. [69] Mr. Coleman submitted that the reliability of the evidence of MU was suspect. Mr. Coleman reminded the Court of thepresumption of innocence and the analysis required in credibility findings set out by the Supreme Court of Canada in R. v. W.D. (1991), (SCC), 3 CR (4th) 302. [70] In addition, it was forcefully argued by Mr. Coleman that it was Jorge who was the saviour for MU and that the Court shouldaccept the evidence of Jorge.

At the very least, it was submitted that the evidence given by Jorge, if not entirely believable, wouldnonetheless establish a reasonable doubt that he was the assailant.

ANAYSIS AND DISPOSITION [71] The proof beyond a reasonable doubt standard is the legal device by which the community protects itself, and an accused, againstwrongful conviction. To avoid wrongful convictions, it is crucial that the beyond a reasonable doubt standard be expressly linked to thepresumption of innocence. This concept was identified in R. v. Lifchus (1997), (SCC), 118 CCC (3d) 1, by Mr.

JusticeCory of the Supreme Court of Canada, at para. 27. [72] The Court in Lifchus defined the expression “beyond a reasonable doubt”, at para. 39, as follows: The term “beyond a reasonable doubt” has been used for a very long time and is part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense.

It is logically derived from the evidence or absence of evidence. [73] An important additional instruction was added by Mr. Justice Iacobucci in R. v. Starr (2000), 2000 SCC 40 , 147 CCC(3d) 449, at para. 242: In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certaintythan to proof on a balance of probabilities. ... [74] In this particular case, the evidence of MU and Dacosta was impacted by the filter of interpreter assistance.

Credibility issueswhich may arise in cases where evidence is presented through a court interpreter was discussed by Hill, J. in R. v. A.F. 2010 ONSC5824 , 2010 OJ 4564, at para. 87 as follows: Where evidence is received through the filter of a court interpreter transferring testimony from the source language of a witness to thetarget language of the proceedings, the court should not be too quick to devalue the witness' evidence on the basis of perceivedinconsistencies: R. v.

Tran (1994), (SCC), 92 C.C.C. (3d) 218 (S.C.C.) at 248 ("... the courts have cautioned thatinterpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness..."); Sopinka, Lederman & Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at s. 16.25 ("It is muchmore difficult to assess the credibility of evidence given through an interpreter"). [75] I also find that it is incumbent on a Court to exercise care in assessing credibility of evidence given through an interpreter.

This caution can be found in The Law of Evidence in Canada (3rd), at s. 16.31, which reads in part: The trial judge should consider the disadvantageous impact of translation on a cross-examiner. It is much more difficult to assess thecredibility of evidence given through an interpreter. [76] Admissions of Fact were filed at the commencement of the trial.

Those Admissions confirm that biological samples werecollected from MU on October 11, 2009, at the Surrey Memorial Hospital, which included external genital swabs, cervical swabs, rectalswabs and a specimen sample from vaginal fluid. [77] The Admissions of Fact further confirm that a biological sample was collected from Jorge on October 11, 2009, at the BurnabyDetachment of the RCMP by penile swab to the exterior of the penis. [78] At paragraphs 4 and 5 of the Admissions of Fact, the following are admitted: 4.

The sample taken by penile swab obtained from the accused Eliano Jorge contains DNA of a mixed origin of providers other thanEliano Jorge with a major and minor profile. 5. The Profile of the major component found in the major component matches that of the known sample collected from thecomplainant, consistent with direct contact with the complainant by the penis, or in direct transference of the penis. [79] Those Admissions establish a DNA connection between Jorge and MU.

Protocols followed relating to the DNA profiles werenot at issue in this case. [80] The Admissions of Fact also establish that upon the physical examination of MU at the hospital on the morning of October 11,2009, she sustained a total of 11 injuries including abrasions, bruising and swelling to various parts of her body including injuries bothher left and right eyes near the area of her temple. [81] In sexual assault cases corroboration is not required.

However, corroborative evidence can assist a Court in determining findingsof fact. [82] I accept the evidence of Ouellet and Melissa Dick that a significant commotion took place in Dacosta’s suite at or around 5:45 amto 6:00 am, in which they both heard a female yelling and screaming. [83] I also accept the evidence of Ouellet that he attended at Dacosta’s suite on two occasions. On both occasions, MU was yellingand screaming and appeared to be hysterical.

Overall, neither Melissa Dick nor Ouellet’s credibility were undermined in cross-examination. [84] I also accept the evidence of Ouellet and Melissa Dick that MU was half naked in the hallway of the apartment building andpounding the door of an unoccupied suite, clearly establishing that MU was in a high degree of distress. [85] I also accept the evidence tendered on behalf of Dacosta in which he is observed at a Royal Bank ATM at 5:26 am on October

11, 2009, thus leaving Jorge and MU back at his suite. The ATM evidence would support Dacosta’s evidence that he was planning to go to his daughter’s soccer game. If the Crown theory that both Dacosta and Jorge assaulted MU is correct, then I would have to find that in a matter of minutes Dacosta made his way back to his suite and commenced the joint sexual assault on MU with Jorge. [ 86 ] As noted earlier in this Judgment, MU, Dacosta and Jorge were extensively cross-examined.

Their reliability and credibility has thus been a significant feature of this case. [ 87 ] In relation to MU, there were clear instances during cross-examination where her reliability was undermined. However, I find that overall she was reliable in her narration of events. I find that she was trying to tell the truth and her evidence was such that she was a credible witness.

I make that finding even with the impediments inherent in the translation of her evidence through an interpreter. [ 88 ] I find that while MU had consumed some alcohol on October 11, 2009, that she was not impaired from making reasoned decisions, and I also find the suggested use of marijuana unsubstantiated. [ 89 ] I find that MU was physically assaulted on October 11, 2009, and that the injuries she sustained resulted from a physical attack upon her and were not self-inflicted or offensive injuries.

I find that the only rational conclusion is that the injuries sustained by MU were defensive in the face of a physical assault. [ 90 ] Dacosta was extensively cross-examined by Mr. Cochrane and Mr. Coleman.

Without question, cross-examination undermined the reliability, and ultimate credibility, of Dacosta in relation to events through October 10, 2009, and into October 11, 2009. [ 91 ] In examining his evidence in direct examination and cross-examination, I have also cautioned myself that I should not be quick to devalue his evidence on the basis of perceived inconsistencies where the evidence is transferred through the use of a court interpreter. [ 92 ] While far from perfect in his presentation of his evidence, I am nonetheless satisfied in balancing and weighing all of the evidence that Dacosta has established a reasonable doubt, in particular, with relation to his observed time at the ATM.

Accordingly, I acquit him of the sexual assault of MU. [ 93 ] Jorge was also extensively cross-examined by Mr. Cochrane and by Mr. Hopkins. The cross-examination of Jorge undermined the reliability of his evidence which negatively impacted his credibility. [ 94 ] I find in this case that it was strikingly odd, if not absurd, that Jorge would freshen up at Dacosta’s suite by having a shower with the expectation that he would be returning to MU’s suite. Indeed, with Dacosta gone to the ATM, Jorge had the opportunity to “make out” with MU.

There is no evidence before me which would suggest MU gave any informed consent to advance from making-out to engaging in intimate sexual activities with Jorge. [ 95 ] I found it noteworthy that in cross-examination Jorge was extremely vague when it was put to him by Mr. Cochrane that there was no mention in his statement to the police that he had taken a shower at Dacosta’s suite. That would clearly have been a circumstance one would expect to be noted in Jorge’s statement to the police. [ 96 ] Notwithstanding the Admissions of Fact, when it was put to Jorge by Mr.

Cochrane that MU’s DNA was found on his penis, the following exchange took place: Q And there was some contact with MU; in particular, her DNA was found on your penis? A I'm not aware of that. I was told that, but just to me there's -- I have no explanation to that . Q Okay. You -- you entered her; you penetrated her -- A No. Q -- with your penis -- A No. A If I had, I would have told.

Q In fact, what you told police was that there was no sex of any kind with MU during -- A We -- Q -- your encounter with her on -- A We did not have sex, but we made out . (emphasis added) (Transcript, September 15, 2011, p. 31, lines 38-47; p. 32, lines 1-6) [ 97 ] Further into his cross-examination of Jorge, Mr. Cochrane returned to the DNA theme and the following exchange took place: Q Yes. And you have no explanation for how it is that a substance from MU ended up on your penis during that encounter? A Substance?

Q Her DNA. A I -- Q It's a complete mystery to you -- A I -- Q -- as to how her -- A I cannot explain how -- how this DNA because I did not insert my penis in her, and if I had, I would have had so. (Transcript, September 15, 2011, p. 33, lines 2-13) [98] I find the reasons for Jorge leaving Dacosta’s suite off the patio balcony do not make sense. During the ongoing commotion,Jorge testified he left the suite because he essentially had enough of MU’s hysteria and wanted to have a cigarette. This explanationlacks any reliability after his assertion that Dacosta had assaulted MU and he had protected her.

Why then would he leave MUunprotected and alone with Dacosta? I reject his evidence on that point. [99] In relation to the DNA evidence, it is clear that in criminal investigations DNA evidence can be significant, if not powerfulevidence, identifying a perpetrator to an offence. However, DNA evidence is but one part of a criminal case. All of the admissibleevidence must be properly weighed to determine whether or not the Crown has discharged its burden. [100] I further note that a trial judge cannot be overwhelmed by DNA statistical probabilities and attributions. See R. v.

McLeod,2010 SKCA 43 , at para. 23. [101] As noted by the Court of Appeal in McLeod at para. 22, a trial judge must be guided in the assessment and weighing ofevidence, including DNA, through the application of the principles set out in Lifchus and Starr. [102] The lack of any plausible explanation by Jorge as to how his DNA was associated to MU negatively impacts his credibility. Ifanything, the evidence of Jorge is dismissive of the DNA and he does not appear to agree that there was any matching DNA profilenotwithstanding the Admissions of Fact.

I find the DNA evidence is powerful evidence implicating Jorge to the sexual assault of MU. [103] Overall, I found the evidence of Jorge to be unreliable and I reject his evidence that it was Dacosta who was assaulting MU andthat he was her saviour. I have considered the evidence of Barroso, but find his evidence to be of limited value in enhancing the credit ofJorge. [104] The salvation for MU on this particular evening was, perhaps the return of Dacosta from the ATM, but principally her yellingand screaming during the assault, which resulted in the intervention of Ouellet.

MU’s injuries were a direct result of the physical assaultupon her. I find that she sustained those injuries when she fought back against the physical assault. [105] I conclude that all of the evidence establishes beyond a reasonable doubt that MU was assaulted by Jorge on October 11, 2009. That assault was for a sexual purpose, being his personal sexual gratification. I reject the explanation of Jorge as unreliable and lackingin credibility with respect to his suggested “making out” with MU with her implied consent.

Accordingly, I find Jorge guilty of thesexual assault of MU. [106] I also find that the circumstances surrounding the threats that MU may have received in the ensuing mêlée with Jorge andDacosta after he returned from the ATM establish that there was a high degree of confusion at that time. It is highly likely that MU wasthreatened, but I have concluded it would be dangerous to convict either Jorge or Dacosta of that offence. Accordingly, both areacquitted. ________________________________ The Honourable Judge G.M.

Rideout Provincial Court of British Columbia CORRIGENDUM – Released January 30, 2012 In the Reasons for Judgment dated January 30, 2012, the following changes have been made: [1] On page 11, paragraph 48, the Accused Jorge did not require the assistance of an interpreter and therefore the paragraph shouldread as follows: [48] Jorge testified in direct examination that he was 31 years of age and had completed the equivalent of grade 12 with some post-secondary training. [2] On page 16, paragraph 74, first sentence, the Accused Jorge did not require the assistance of an interpreter and his name shouldbe removed from the paragraph.

The opening sentence should read as follows:

[74] In this particular case, the evidence of MU and Dacosta was impacted by the filter of interpreter assistance.