R. v. R.M.K., 2018 BCPC 415

Citation: R. v. R.M.K. 2018 BCPC 415 Date: 20181106 File No: 223696-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. R.M.K. Ban on Publication 486.4(1) CCC REASONS FOR JUDGMENT (Oral Ruling re No Evidence Motion) OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: T. Spasojevic Counsel for the Accused: P. Cote Place of Hearing: Surrey , B.C. Dates of Hearing: November 5 and 6, 2018 Date of Judgment: November 6, 2018

[1] These are my oral reasons for decision on the accused’s no evidence motion. [2] The accused is charged with a sexual assault against Z.J.S, hereinafter referred to as the complainant. The date of the allegedoffence is March 16, 2017. The Crown has closed its case and the accused has made a no evidence motion. [3] The test on a no evidence motion is the same as that on a preliminary inquiry. In other words, there must be evidence before thecourt upon which a reasonable jury properly instructed could convict.

If the evidence is insufficient, the charge will be dismissed. [4] The evidence in this case is straightforward. The complainant testified as follows. [5] She is 22 years old. She met the accused on a website called FetLife. They texted each other and then met in person. At theirmeeting in person, they spent a couple of hours together to determine if they were compatible. [6] In their conversation, they talked about their sexual histories and the use of condoms. The accused mentioned that he only hadnot used condoms on a couple of occasions. She told him that she only had sex if a condom is used.

The accused agreed that it is safestfor everyone involved to do so. He did not indicate any complaint with her statement that she only uses condoms when having sex. [7] A few days later, they agreed to meet. The accused picked her up at her friend's house at approximately 12:45 a.m. and droveher to his house in Langley, British Columbia. [8] The parties went to his bedroom and undressed. She gave him oral sex without a condom while he was on his back. After that,they kissed and he asked her to “hop on” top of him. She asked him if he had condoms and he said he did. She added that she hadcondoms if he did not.

He reached over to a side table, she heard the sound of a condom package being opened, and saw the silhouette ofhim putting on a condom. It was dark in the room. [9] They had sexual intercourse and it was agreed that he would ejaculate on her stomach, which he did. She believed he had worna condom prior to ejaculation. Nonetheless, while washing her hands in the washroom she asked to see the condom. He showed it to herand it appeared to have been used. She asked to see it because it had been dark and she wanted reassurance. [10] She previously asked him about condoms and told him she only has protected sex.

She wanted to have sex that night and hewore a condom. This gained her trust. [11] She fell asleep and woke up with the accused's erect penis poking at her from behind. She pulled away or pushed him away. Heturned away from her in the direction of the same table from where he previously retrieved a condom. She assumed he retrieved onebased on their previous interactions, however, she did not hear or see anything consistent with him opening a condom package orapplying one.

There was no discussion between them before the commencement of intercourse. [12] He came closer to her and she repositioned herself to allow for intercourse. She was more on her stomach. He grabbed her frombehind with both his hands and his penis entered her vagina. [13] After about 40 to 60 seconds, he asked her if it felt better than last time. She said yes. She thought he was talking about theposition, and that position felt better for her.

After the fact, she realized he was probably talking about the absence of a condom. [14] After a period of time, she was flipped over onto her back and his penis withdrew from her vagina. He asked her to guide it backin. She handled his penis and guided it back in. The intercourse concluded with him ejaculating into her vagina. Up until that point, sheassumed he was wearing a condom. [15] She never consented to intercourse without a condom and she would not have consented to intercourse without a condom. [16] The incident shocked her. She felt deceived. She felt that the accused did not care about her boundaries.

She trusted him basedon their previous discussions and past use of a condom. [17] She confronted him and asked him to confirm that they had unprotected sex and he agreed that they did. He was relaxed aboutthe possible consequences. He was relaxed about the transmission of disease and on the topic of possible pregnancy, he said she couldhave an abortion. [18] He later drove her to her friend's residence. [19] In a subsequent text message she asked him why he had not worn a condom and he said he had been too excited to put one on.She told him that this can be considered rape and he thought that was amusing.

He sent her a link to a porn video called, "Oh My GodDaddy Came Inside of Me". [20] Due to her anxiety over the circumstances of the unprotected sex, she went on a course of HIV medication for 28 days.

Themedication had some serious side effects that impacted her ability to work. [21] The Crown also relied on a statement made by the accused to the police where he confirmed many of the details set out above.However, he did not agree that there was any agreement between them to always wear a condom for sex especially since the first sexualact, her giving him oral sex, was without the use of a condom. [22] As indicated, the accused applies for dismissal of the charge against him on a no evidence motion. [23] The accused relies on the Supreme Court of Canada decision in R. v.

Hutchinson, 2014 SCC 19 , [2014] 1 SCR 346.Following the analysis of this case, it is submitted by the accused that there was consensual sexual relations between the parties and thatthere is no evidence that this consent was vitiated by fraud pursuant to s. 265(3)(

c) of the Criminal Code.

[ 24 ] In reply, Crown counsel submits that the sexual intercourse without a condom was not consensual and alternatively, consent was vitiated by fraud. ANALYSIS [ 25 ] There are two elements to fraud that must be proved by Crown.

At para. 67 of the Hutchinson case, the court sets these out: ...(1) dishonesty, which can include the non-disclosure of important facts; and (2) deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty... [ 26 ] The court concluded that the increased risk of pregnancy may constitute a significant risk of bodily harm. [ 27 ] In the case before me, the evidence of the complainant is that she consented to all the physical acts of sexual relations that the parties engaged in, so there is no evidence of a sexual assault under the first step set out in Hutchinson . [ 28 ] I find no merit to Crown counsel's first position that there was no consent since no condom was used.

The majority of the court in Hutchinson specifically disagreed with that analytical approach that was adopted only by the minority of the court. [ 29 ] In my view, the only issue to determine is whether there is any evidence of fraud that vitiates the consent of the complainant.

More particularly, were the actions of the accused in this case, not wearing a condom for the second incident of sexual intercourse, dishonest, and this could include the non-disclosure of important facts. [ 30 ] I find that although the actions of the accused in not wearing a condom were undesirable and unethical in light of the expressed concerns of the complainant, there is nothing particularly dishonest about him not putting on a condom prior to sexual intercourse with the complainant. [ 31 ] The accused did nothing to hide or deceive the complainant that he did put on a condom.

Within a minute of the commencement of intercourse, the accused asked her if it felt better this way. She unfortunately mistook the inference that the accused was making, and said yes. [ 32 ] Also, he asked her to guide his penis into her vagina at one point, which strongly suggests that he was not hiding the fact that he was not wearing a condom. [ 33 ] Accordingly, I am unable to find any evidence of dishonesty on the part of the accused that could result in a conviction. [ 34 ] Accordingly, the charge of sexual assault must be dismissed. (REASONS FOR JUDGMENT CONCLUDED)