R. v. Davies, 2020 BCPC 302

Citation: R. v. Davies 2020 BCPC 302 Date: 20201211 File No: 233831-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JACOB THOMSON DAVIES BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(2.1) OF THE C.C.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. SIDHU Counsel for the Crown: P.Bhatti appearing by teleconference Counsel for the Accused: J. Michaels Place of Hearing: Surrey , B.C. Date of Judgment: December 11, 2020 [ 1 ] THE COURT : These are my reasons for judgment in the matter of Jacob Thomson Davies. [ 2 ] Mr. Davies, the accused, is charged with a sexual assault of N.M., contrary to s. 271 of the Criminal Code on indictment 23381- 2.

[3] To convict Mr. Davies of sexual assault, the Crown must prove beyond a reasonable doubt that Mr. Davies made physicalcontact with N.M., the complainant, of a sexual nature, that N.M. did not consent to the contact, and that the contact by Mr. Davies wasintentional and that he knew, was reckless, or willfully blind that N.M. was not consenting. [4] In the facts of this case, the issue is not whether there is contact of a sexual nature, that is not in dispute, but rather the issue iswhether N.M. was a consenting party.

Both the complainant and the accused testified and offered diametrically opposed versionsregarding the offence. [5] N.M. testified that the sexual contact was without her consent. The accused, on the other hand, testified that N.M., through bothher words and conduct, clearly communicated her consent and, in fact, was the aggressor during the incident. As such, this is not a casewhere I need to consider the defence of mistaken belief of communicated consent.

Legal Principles Presumption of Innocence and Reasonable Doubt [6] The presumption of innocence is the hallmark of the Canadian justice system and enshrined in the Charter of Rights andFreedoms. It is a fundamental principle in which an accused person is presumed innocent unless and until the Crown proves beyond areasonable doubt each and every element of the offence with which the accused is charged. The burden of proof rests on the Crownthroughout the entire case and never shifts to the accused.

The accused need not prove anything. [7] In determining whether the Crown has met its burden, I must consider all of the evidence before the court. The burden of proofdoes not apply to individual pieces of evidence but rather to the evidence taken as a whole. [8] What is reasonable doubt? Reasonable doubt is not based on an imaginary or frivolous doubt. It is not based on sympathy, orprejudice, nor is it based on speculation, myths, or stereotypes. Reasonable doubt is based on reason and common sense. It is a doubtwhich is logically connected to the evidence or the absence of evidence.

Reasonable doubt, however, does not require the Crown toprove anything to an absolute certainty, as that would be an impossibly high standard. Beyond a reasonable doubt requires the trier of factto be sure that the accused committed the offence before a conviction can be registered. [9] Reasonable doubt in the context of sexual assault trials can be particularly challenging. I find the comments of Judge Malloy inR. v. Nyznik, 2017 ONSC 4392 , 2017 O.J. 4138 at paragraphs 11 and 12 to be applicable here.

It states: As I have stated, the presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case justthe same as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard adifficult one. First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from thecomplainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other– the classic “he said/she said” scenario.

In that situation, it would be wrong for the trial judge to decide the case based on which is themore credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond areasonable doubt… [10] As noted, reasonable doubt applies to the issue of credibility of witnesses and I must instruct myself in accordance with R. v. W.(D.). Accordingly, if I believe the evidence of the accused I must acquit. If I do not believe the evidence of the accused but am left with areasonable doubt by it, I must acquit.

Even if I am not left with a reasonable doubt of the accused, I must ask myself whether, on thebasis of the evidence that I do accept, am I convinced beyond a reasonable doubt by that evidence of the accused's guilt. [11] A fourth step has been added to the W.(D.) analysis; that is, if I am unable to decide whom to believe, I must acquit: (R. v.C.W.H., (BC CA), 1991 68 CCC (3d) 146 BCCA 155). [12] It is important to note that this is not a credibility contest where a court must choose one version of the story over the other.

Evenif I were to reject the accused's evidence and am left without a reasonable doubt, I must still go on to assess the evidence as a whole,including the evidence of the complainant and other witnesses. If I am still left without a reasonable doubt after considering thatevidence, it is only then that I can convict the accused. Reliability and Credibility [13] Typically, the outcome of a sexual assault trial comes down to the credibility and the reliability of the evidence of thecomplainant. The reliability of the evidence has to do with the accuracy of the witness and the ability to recount details.

The credibilityof the witness has to do with the truthfulness of the witness' evidence. A witness who is not credible cannot be reliable. However, acredible witness can be honest but unreliable. On any given point I may believe a witness, disbelieve a witness, or not be able to decide. Ido not have to fully believe or disbelieve one witness or a group of witnesses: (R. v.

Tom, 2015 BCSC 2660). [14] If I have a reasonable doubt about the guilt of the accused arising from the credibility of the witnesses, I must find him not guilty. [15] In assessing credibility and reliability I find the comments of Justice Donegan in R. v. Tom, supra, at paragraph 6 instructive. Shewrites: First, I will make some general comments about assessing credibility and reliability. It is trite to say that a court can accept some, all, ornone of the evidence of a witness. Assessing credibility can be a difficult task and involves examination of a number of factors.

Thefactors include the witness' ability and opportunity to observe events; the firmness of her memory; the ability to resist the influence ofinterest to modify her recollection; whether the witness' evidence harmonizes with independent evidence that the court accepts; whetherthe witness changes her testimony during direct and cross-examination; whether the witness has unexplainable differences between,

perhaps, her statement to police or others and her testimony; whether the witness' testimony seems unreasonable, impossible, or unlikely;whether a witness has a motive to lie; whether a witness was under the influence of an intoxicant at the time of the events or suffered theeffects of a mental condition so as to render her recollections less reliable; and the demeanour of the witness generally. I must add that Iam cautious about placing too much weight or emphasis on demeanour.

The courtroom setting is often a foreign and stressful place for awitness and nervousness can manifest itself in a number of different ways which can be difficult to interpret. [16] It is important to note as per Justice Donegan's comments that a witness' motive to lie is just one factor along with others toconsider. Where the case is largely dependent on the evidence of the complainant, it is essential that credibility and reliability of thecomplainant's evidence be tested in light of all the other evidence present in court: (R. V.

R.W.B., 1993 24 BCAC 1 at para. 28). [17] The court must ask, does the evidence of the witness harmonize with the other evidence in the case? Minor inconsistencies in awitness' evidence may not diminish a witness' credibility. Inconsistencies on such matters are normal and to be expected. However, aseries of inconsistencies or even one serious inconsistency may become significant. Where the inconsistency involves a material matterabout which an honest witness is unlikely to be mistaken, it can adversely affect credibility as it demonstrates that that witness is carelesswith the truth: (R. v.

M.G., (ON CA), 1994 73 OAC 356). [18] One of the most valuable means to assess the credibility of a witness is to examine the consistency between the evidence of thewitness and what that witness has stated on prior occasions: (R. v. M.G., supra).

This equally applies to the evidence of the accused. [19] Before proceeding, I wish to comment about the myths and stereotypes, particularly those which can arise in sexual assault cases.Such myths and stereotypes, like the belief that unless a complainant physically resists, continues to say no, or suffers physical injury,that he or she must be taken to consent to the sexual contact, have no place in the courtroom. Without some evidentiary foundation, thesemyths and stereotypes can undermine a complainant's testimony. [20] However, there is a flipside as well.

Myths and stereotypes can artificially bolster the complainant's evidence. For example, thecomplainant's credibility can be bolstered on the basis that no woman would consensually engage in the particular alleged conduct. Suchstereotypical assumptions and generalizations can operate against the accused. I remain mindful of those concerns. [21] I am also mindful of movements such as #MeToo and #BelieveAllWomen. Such movements certainly have their place in societyand can be very empowering for those women who have been subjected to sexual abuse, particularly vulnerable women.

However, thiscourt is not a court of public opinion. This is a court of law and I must only examine the evidence that is before me and apply theapplicable legal principles. Public opinion, whether they operate for or against the complainant or the accused, have no role in this court. Evidence at Trial [22] I will next review the evidence that was before me. As much depends on the credibility and reliability of the complainant, theaccused, and other witnesses, it is important to examine the evidence in some detail. [23] The Crown case relies primarily on the evidence of the complainant, N.M.

In addition, the Crown called three additionalwitnesses who I will refer to by their initials, B.B., L.B., and K.B., as well as the SANE nurse examiner Tracy Purcello. [24] The Crown tendered text messages sent by the accused to L.B. and K.B. and they were marked as exhibits. Ms. Purcello's reportwas also tendered as evidence. [25] The accused testified in his own defence. The defence called one further witness, Shelly Davies, the accused's mother. The Evidence of N.M. [26] N.M. testified as follows. [27] In April 2019, N.M. was 16 years old.

Although she and B.B. went to different schools they were good friends as they had knowneach other for a long time. Their families were close. [28] On April 19, 2019, the two girls had made plans to go to Crescent Breach in South Surrey and then to spend the night with B.B.'sfriend. They met up earlier in the evening and B.B. drove her vehicle to Crescent Beach. They arrived there around 8:30 to 9:00 p.m.N.M. had brought a 26 ounce bottle of Bacardi Gold rum which was either half full or three quarters full.

They walked on the beach andequally consumed the entire contents of the bottle with N.M. likely having drank more than B.B. [29] The girls subsequently learned that they were no longer invited to sleep at the friend's house who had made other plans. They satin B.B.'s car wondering what to do as B.B. was unable to drive after having drank. B.B. texted the accused and asked what he was doing.The accused was working nearby and would be getting off shortly. She told N.M. that the accused could drive them home.

N.M. knewthe accused and had hung out with him once or twice but he was not someone she considered to be in her circle of friends. [30] At approximately 9:30 p.m., the accused arrived at Crescent Beach. N.M. described her level of intoxication as 6 or 7 out of 10 atthis time. The girls got into the accused's vehicle and they decided to park at Blackie Spit, a nearby location which is a two-minute driveaway. She sat in the back seat of the vehicle and the accused and B.B. were in the front. The rear doors on the car had the interior panelsremoved and the doors did not have handles.

The accused showed them how to get in and out of the vehicle. She had no difficulty withthe door. [31] At Blackie Spit, they hung out, talked and listened to music. N.M. brought up her relationship with her boyfriend, K.B., and howthey were going through a hard time. At some point, she moved into the front seat and B.B. sat in the back. N.M. recalled the accusedputting his hand on her thigh. They left Blackie Spit to go to the accused's house to get more liquor. She could not recall whose idea thatwas.

[ 32 ] N.M. did not kiss the accused at Blackie Spit and B.B. did not encourage her and the accused to hook up or to kiss.

While N.M. and the accused engaged in flirting and flirtatious touching at Blackie Spit, on the way to the accused's residence, N.M. changed her mind and was no longer interested in having physical contact with the accused. [ 33 ] When the accused went into his residence, she was sure that she and B.B. had discussed the accused's hand on her thigh and about how uncomfortable she felt, however, she could not specifically remember the conversation. [ 34 ] The accused returned to the car with a mickey of white rum and a six-pack of coolers called Hey Y'All.

The accused drove to White Rock beach and they parked in a parking lot at West Beach. They talked, listened to music and B.B. got out of the back seat and danced in front of the car. She and the accused remained seated in the front seat of the vehicle. They were having a good time just hanging out. [ 35 ] She denied that there was any conversation from anyone about the accused and N.M. hooking up. She did not flirt with, kiss, or touch the accused while at West Beach. She had a few sips of the rum, about two ounces, and drank a cooler.

After consuming those drinks, she rated her level of intoxication as an 8 out of 10. The alcohol made her memory foggy and she could not recall full conversations, tiny details or small gestures. The alcohol also impacted her ability to assess the passage of time and affected her level of control. Because of her consumption of alcohol, she felt that she was pushed to do things which she did not want to do. She was on an antidepressant medication and was aware that she should not mix that medication with alcohol. [ 36 ] As the night wore on, B.B. decided she wanted to go home.

Both girls were tired and the alcohol was starting to wear off for N.M. The plan was to drop B.B. off at her residence first and then for the accused to take N.M. home as she lived close by him. B.B. was dropped off at her house. [ 37 ] When the accused went past N.M.'s street, she remarked that he had passed her street. The accused asked N.M. if she wanted to go for a drive and chat; N.M. agreed. They discussed her relationship with her boyfriend. [ 38 ] The accused parked the car at a lookout in White Rock. The area was dark and secluded. N.M. was a little nervous and sat with her arms crossed in front of her.

While seated in the vehicle, the accused asked her how her boyfriend would like it if he kissed her. She replied that her boyfriend probably would not like that. The accused kissed N.M. and she pulled away. Other than the kiss, there was no other physical contact but perhaps a hand on her shoulder. [ 39 ] After the kiss, it was awkward and they talked a bit. The accused kissed her again. This time he touched her face and her waist. N.M. stopped the kiss, pulled away and sat back in her seat. After the kiss they continued to talk and laugh. [ 40 ] The accused then unzipped his pants and pulled them down.

N.M. was shocked and did not say anything. Suddenly he pushed her head down, holding her hair and forced N.M. to put his erect penis in her mouth. N.M. had his penis in her mouth for three to four minutes. Her body was tense and she put her hands up. She had her mouth open and did not properly perform fellatio. He let go of her head and she sat back in her seat. She told him that she needed to make a phone call. [ 41 ] She got out of the vehicle and contacted two friends, asking them to pick her up. Unfortunately, her friends were at a party and too intoxicated.

The accused called her back to the vehicle. [ 42 ] N.M. had no other way home and she was drunk. To avoid having to sit next to the accused, she got into the rear back seat. The accused came into the back seat. N.M. was scared, uncomfortable and sitting with her legs crossed. She asked him when he was going to take her home but could not remember his response. [ 43 ] The accused grabbed her legs such that she was laying on her back on the rear seat. Her head up was up against the door. He pulled down her pants. She was tense and he told her to relax and that it was okay.

He made a comment implying that it was her turn. She was on her menstrual cycle and wearing a tampon. He removed the tampon and threw it out the window. She froze and her body could not move. He put his finger in her vagina for a very short period of time, a few seconds. It felt awkward and uncomfortable. He then began to perform oral sex on her. Her legs were tense and she squeezed her thighs near his head. The accused brought his head up and told her to relax her body and to calm down. He continued to perform oral sex. N.M. told him no and to stop.

He told her to relax. [ 44 ] After four to five minutes she pushed him away with her legs. He unzipped his pants and got on top of her. He proceeded to have vaginal intercourse with her. She tensed and squeezed his thighs with her legs until he said "ow". He continued to have intercourse with her and tried to kiss her on her lips; however, she was too tense and not participating. He got off her, sat back, and masturbated himself until he ejaculated. She did not recall scratching his back with her nails. [ 45 ] She grabbed her phone to try to get someone to pick her up.

She noticed that her co-worker, L.B., had recently befriended her on Snapchat. She messaged him to ask if he could pick her up. She told him that she was with the accused. She did not recall sending pictures to L.B., just texts. She told the accused that a friend was coming to pick her up. [ 46 ] When she saw L.B.'s vehicle, she told the accused to stop and got out of the car. The accused yelled and swore at her, calling her a whore. At this point, she was crying, upset and hyperventilating. While in the car with L.B., she did not tell him much or give him details as she did not know L.B. that well.

He drove her home but she did not want to go into the house. He contacted B.B. and N.M. told B.B. what had happened but she did not want to go to B.B.'s house because she did not want to have to tell B.B.'s mother. [ 47 ] L.B. went to McDonald' s and got some food. She was still upset and crying. L.B. was stopped by the police and the officer asked her if she was okay. They drove around and eventually parked the car and stayed out all night. L.B. dropped her off at home around 9:30 a.m. She noticed that she had blood in her pants but that she had not bled through her clothing.

Later that day, she told her parents and went to the hospital for a SANE examination. She was sore all over her genital area; however, she did not believe that the accused was trying to physically hurt her. [ 48 ] N.M. talked to K.B. and told him what had happened. She later saw the text messages between K.B. and the accused. She

provided a statement to the police a few days later. [ 49 ] N.M. was cross-examined extensively on her prior statement she made to the police, the SANE nurse examiner, L.B. and K.B. She was asked about the following inconsistencies between her evidence and her statement to the police. [ 50 ] In her statement to the police, N.M. stated that all the doors on the accused's vehicle, other than the driver's door, had the interior panel cover removed. She also told the police that when she was in the back seat with the accused she was unable to get out of the car on her own as she was crying, freaking out and in shock.

In cross-examination, N.M. explained that while it was not hard to open the door, when she was trying to move from the back seat to the front at the end of the night, she was unable to push the pin and asked the accused for help. [ 51 ] In her statement to the police, N.M. stated that she was crying and bawling her eyes out while she was in the vehicle with the accused. When asked about this in cross-examination, she replied that she did not cry in front of the accused, however, she was visibly upset, had tears in her eyes and was shaking.

She testified at the time she gave her statement to the police, she was traumatized and had spent the whole night crying. [ 52 ] In her statement to the police, N.M. stated that the accused threw her tampon out of the car window or door. She told the officer she believed that the accused then picked up her tampon and put it in a bag, although she was not sure.

On the stand, she maintained that she still did not know exactly what had happened to her tampon and was still unsure if the accused picked it up. [ 53 ] The complainant was also cross-examined on the differences in her statement, and the evidence about the number of times she said no to the accused, and the extent to which she physically tried to stop him. She told Cst. Carter that she kept telling the accused no and to stop. She also stated that she was kicking him while he was performing oral sex on her.

The complainant was asked about her statement to the police and what she described feeling frozen, unable to move and think properly. She had told the police that when she had been frozen in such occasions, she felt as though she was fighting, kicking, screaming and pushing, but she was actually paralyzed and unable to move. [ 54 ] In her statement to the police, the complainant stated that the accused had digitally penetrated her for a few minutes and that it was painful. She told the police that the accused had long nails and felt like he was scratching her.

She indicated that she noticed a bunch of blood on her pants and thought that it may be from that, although she had her period as well. [ 55 ] In addition, N.M. was cross-examined about her statement to the SANE nurse examiner regarding the accused “slapping her butt”. She testified that the accused grabbed her butt but did not slap it. She also testified about her comment that she kept telling the accused no and that she was trying to move from his hands.

The complainant advised that she did not recall what exactly she had said to the nurse that day. [ 56 ] The complainant was also cross-examined on the details she provided to L.B. and K.B. about the assault. She stated that she could not recall what she had told L.B. that night as she was distraught, crying and hysterical. She also stated that she did not know L.B. very well and would not have told him all the details. With respect to K.B., she admitted that she did not tell K.B. the truth, but instead another version because he was already upset at her for what had happened.

Evidence of B.B. [ 57 ] Other than a few differences, the evidence of B.B. was generally consistent with both the complainant and the accused regarding events that took place prior to the incident. B.B. testified as follows. [ 58 ] She was currently 19 years old. The accused was her best friend at the time of the incident and she had known him for several years. [ 59 ] B.B. and N.M. arrived at Crescent Beach around 7:30 or 8:00 p.m. They had a 26 ounce bottle of spiced rum which was at least half full.

When they learned that they would not be able to sleep over at a friend's house, they did not know what to do as B.B. had been drinking and could not drive. The accused texted her at approximately 9:00 p.m. B.B. asked him if he wanted to come and hang out with them and then he could drive her home. [ 60 ] B.B. testified that the accused had removed all the interior panels on the doors of his vehicle except for the driver's door. It was difficult to open because there was no door handle on the inside.

That evening, she used the window to get in and out of the car. [ 61 ] B.B. noticed that there was a little bit of flirting between N.M. and the accused. At one point she saw the accused put his hand on N.M.'s thigh but did not think much about it as he had done that to her on occasions as well. B.B. was aware that the accused had romantic feelings for her, as they had discussed them in the past. She did not reciprocate the feelings towards the accused. [ 62 ] At the time, N.M. had a boyfriend who B.B. thought treated N.M. poorly and whom she did not like.

Seeing this as an opportunity to have the accused being interested in someone else, she played the role of a wingman and encouraged N.M. and the accused to get together. At one point she made a comment about how it would be funny if the accused and N.M. kissed. [ 63 ] The accused suggested that they go to his house and get some more alcohol. On the way, she may have made a remark about the accused having a six pack.

While the accused was in the house, N.M. told B.B. that while she was fine with kissing the accused, she did not want to do anything else with him. [ 64 ] At White Rock beach, B.B. noticed that the accused put his hand on N.M.'s thigh again. B.B. consumed one can of the cooler and N.M. drank some of the rum from the bottle as well as a cooler. B.B. categorized herself as being a 4 out of 10 regarding her level of intoxication. She indicated that she felt buzzed but could talk and walk without difficulty. She also believed that the alcohol had no impact on her memory.

[ 65 ] The accused did not have any alcoholic drinks that night. [ 66 ] B.B., N.M. and the accused were dancing outside the car. At one point, B.B. saw the accused and N.M. seated in the vehicle kissing. The accused and N.M. were sitting side-by-side with N.M. in the front passenger seat. She did not see N.M. on top of the accused in the driver's seat kissing. [ 67 ] At approximately 11:20 p.m., B.B. decided she wanted to go home as she was tired.

B.B. asked N.M. if she wanted to sleep at her house but N.M. replied that the accused would drive her home. [ 68 ] At approximately 1:00 a.m. or 1:30 a.m., while B.B. was in bed watching Netflix, she received a text message from the accused. It stated, "Fuck N.M. She's going to hook up with L.B. now." She found the message odd as N.M. and L.B. did not know each other well. She was then contacted by L.B. who asked if N.M. could come and stay at her house. N.M. spoke to B.B. and told her that the accused had raped her.

B.B. stated that N.M. could stay at her house but that she would have to tell her mom what had happened, which N.M. did not want. [ 69 ] B.B. then received a text from the accused which stated, "Bitch didn't even swallow." B.B. blocked the accused from contacting her on the phone. She was aware that the accused was trying to contact her the next day through other people. [ 70 ] B.B. spoke to N.M. a few days later about the details of the assault. B.B. subsequently provided a statement to the police. [ 71 ] B.B. was cross-examined on the statement she gave to the police.

She admitted that in her April 25th statement to the police that she failed to mention that she was acting as a wingman and trying to set up the accused and N.M. She also acknowledged that she did not tell the police that she saw N.M. and the accused kissing that evening. [ 72 ] Further, B.B. was cross-examined about her dealings with K.B. Initially she denied that K.B. had confronted her about trying to set up the accused and his girlfriend. However, upon being referred to her statement, she agreed that in fact had occurred.

She admitted that she told K.B. that she was not trying to set up N.M. and the accused and that she lied to him because she was scared. [ 73 ] I find that, overall, B.B. was a credible and reliable witness. I note that she was the best friend of the accused and that her loyalties were both to her best friend and her good friend. Some of the inconsistencies between her and N.M.'s evidence simply has to do with the passage of time and their consumption of alcohol.

I find that the girls did consume a significant amount of liquor over the evening which would have likely impacted their ability to recall ordinary small talk and insignificant events. [ 74 ] I accept her evidence that she received the two text messages from the accused after she came home. There is no motive for her to lie.

I also accept her evidence that she did not admit to K.B., the fact that she was trying to hook up N.M. and the accused, was because she was scared when confronted by him. [ 75 ] While I do not accept her evidence that she simply forgot about N.M. and the accused kissing in her presence, I do not believe it adversely affects her credibility such that I cannot rely on other parts of her evidence. Evidence of L.B. [ 76 ] L.B. was called as a witness for the Crown. He testified as following. [ 77 ] That on the evening of April 19th, 2019, he was at home watching TV.

At approximately midnight, N.M. came up as a suggested friend for him on the social media platform Snapchat. He knew N.M., as he worked with her at the gymnastics club but she was not a person who was in his circle of friends or someone with whom he was well-acquainted. He sent her a friend request. [ 78 ] Between 12:30 and 1:00 a.m. he received a series of photographs from N.M. on Snapchat. The photos were of N.M.'s forehead and/or face in a vehicle. At most, the photos came every 30 seconds to a few minutes apart.

He received all the photos over a course of just a few minutes. [ 79 ] L.B. then received a written message from N.M. She asked if he drove, to which he replied that he did. She then asked him if he could pick her up. He asked her from where. L.B. did not feel like going out. She indicated that she was at the beach and L.B. asked her which beach. There was some mixed messages where both parties were typing at the same time. N.M. told L.B. that she would meet him at his house. He asked her why she was coming to his house. At that point she told L.B. that she had been raped.

L.B. replied that of course he would pick her up. He asked N.M. who raped her and she told him it was Jake. As he knew a few Jakes, he asked which one. N.M. replied that it was the accused. [ 80 ] L.B. knew the accused from school and they had hung out socially together a couple of times. L.B. drove about five seconds up the hill where he saw N.M. get out of the accused's vehicle. The accused drove away. As N.M. hustled towards his vehicle he could see that she was visibly upset, crying and hyperventilating.

He remained in the vehicle during this time with his windows rolled up. [ 81 ] Once in his car, N.M. continued to cry and hyperventilate. L.B. just tried to calm her down and did not ask for details. What he did was get bits and pieces of information but nothing coherent. He drove her home but she did not want to go into her house. L.B. contacted B.B. and asked if N.M. could sleep at B.B.'s house, but B.B. told him that she would have to tell her mom about what had happened to N.M. L.B. could not take her home to his house as his father would also want to know what had happened.

N.M. continued to cry and be upset in his vehicle. [ 82 ] He drove around White Rock trying to calm her down. He went to McDonald's and got himself some food and her some water. She was still crying, although it had lessened. [ 83 ] Shortly later, he was stopped by a police officer after making a U-turn. The officer asked N.M. if she was okay and if her parents knew that she was there. The officer let L.B. go with a warning.

[ 84 ] Eventually, he and N.M. stopped and parked on Pacific Avenue where they stayed in the vehicle all night. N.M. told L.B. a few details of the incident. She told him that after the accused had dropped off B.B., they went to the beach and had run out of gas. She said that the accused told her to get something from the back seat of the car and that when she did, the accused assaulted her. [ 85 ] L.B. dropped her off at home at about 9:30 the next morning. [ 86 ] Later that day, at 4:37 p.m., L.B. received a message on his phone from the accused.

The accused provided details about what happened the night before. L.B. spoke to N.M. a few days later and subsequently gave a statement to the police. The police took photographs of the messages between L.B. and the accused which were marked as Exhibit 3. Evidence of K.B. [ 87 ] The Crown called K.B. to testify. He gave evidence as follows. [ 88 ] K.B. was currently 20 years old. In April of 2019, he and N.M. had been dating for approximately one-and-a-half years. At that time, he believed their relationship was good and problem free. [ 89 ] On April 19th, 2019, K.B. was camping in Squamish.

He learned about the incident when N.M. contacted him from the hospital. He was not aware of N.M.'s plans to go out with B.B. the previous night. [ 90 ] Prior to the incident, K.B. did not know the accused. K.B. sought out the accused on social media and sent him a message confronting him about what he had done to N.M. The accused provided a detailed version of the events to K.B. The messages were photographed by police and made an exhibit. [ 91 ] K.B. confronted B.B. about trying to set up the accused and N.M., which was denied by B.B. .B. was told the following about the incident by N.M.

That she, B.B. and the accused had gone to the beach. When the accused was driving N.M. home, he pulled over and forced himself on her. N.M. was able to get away and stayed at the beach. She was traumatized for quite a while and eventually was driven home by L.B. [ 92 ] K.B. and N.M. broke up the following month for reasons unrelated to the incident. Tracy Purcello [ 93 ] Tracy Purcello was qualified as an expert in Sexual Assault Nurse Examinations. She provided the following evidence. [ 94 ] On April 20th, 2019, between 6:18 p.m. to 6:50 p.m., Ms.

Purcello conducted a sexual assault examination of N.M. at Surrey Memorial Hospital. She found both the internal and external genital examinations were within normal limits. N.M. complained of a pain to the right, back side of her head and had a three centimeter red linear abrasion to her right breast. There were no physical findings which caused Ms. Purcello any concern. [ 95 ] Ms. Purcello took vaginal swabs from N.M. and she did not observe the presence of blood. Ms. Purcello opined that the injury to her breast was consistent with blunt force trauma, sliding force and/or friction. [ 96 ] In her report, Ms.

Purcello documented what N.M. briefly told her about the offence. N.M. told Ms. Purcello the following: He pulled the car over and leaned over to kiss me. I pushed him away and said, "Please don't." He became more aggressive and grabbed my legs. He took off my pants and took out my tampon. I kept saying, "No", and tried to move his hands away. He got on top of me and started having sex with me . [ 97 ] N.M. told Ms. Purcello the accused “slapped her on the butt” and that there was penile/oral, oral/vaginal, penile/vaginal and digital penetration.

N.M. indicated that she had one cooler and three shots of rum at 11:30 p.m. Ms. Purcello recalled that when N.M. was asked about her last menstrual cycle she had responded, "Now." [ 98 ] With respect to the evidence of the results of the SANE examination, I find that the results are consistent with both consensual and nonconsensual sexual activity. The evidence was neutral on the issue of consent. Ms. Purcello's evidence is, however, relevant to assessment the credibility of the complainant. Admissions of Fact [ 99 ] The evidence of Cst. Carter was tendered by way of admissions.

It was admitted that on April 20th, 2019, at approximately 2:02 a.m., Cst. Carter, a White Rock RCMP member, observed the vehicle being driven by L.B. in the 1500 block of Johnston Road. She stopped the vehicle and spoke to L.B., who told her that his passenger had had a rough night and that he was keeping her company. The passenger was N.M. Cst. Carter noted that N.M. appeared as if she had been crying and asked her if she was okay. N.M. replied that she was. Cst. Carter did not observe any injuries on N.M. [ 100 ] On April 25th, 2019, Cst. Carter became involved in the investigation regarding the accused.

On that day she took an audio statement from N.M. at 11:26 a.m., from B.B. at 4:18 p.m., and from L.B. at 5:05 p.m. She obtained photographs of L.B.'s messages on his phone. [ 101 ] On April 26th, 2019, she arrested the accused. [ 102 ] On April 27th, 2019, Cst. Carter took a statement from K.B. and took photographs of K.B.'s messages with the accused on his phone. Message to L.B.

[ 103 ] Exhibit 3 is a text message between the accused and L.B. The accused sent messages to L.B. in which he outlined his version of events. He told L.B. the following. [ 104 ] He spent the night with B.B. and N.M. B.B. kept pushing him and N.M. to hook up. After dropping B.B. off, he and N.M. started kissing and he asked her if she wanted to go to the back seat. N.M. was agreeable. They hooked up but did not “bang”. In the back seat, he digitally penetrated her for a while but he could not get erect. He was embarrassed. N.M. performed fellatio on him but she was texting L.B.

N.M. was fully into it and aggressively making out with him. Everything was going well. He would never do anything to hurt N.M. N.M. asked to be dropped off at L.B.'s house and he believed that she was going to hook up with L.B. The accused was upset, did not know what was going on, and had lost his best friend. [ 105 ] L.B. simply replied that he did not know what was happening and did not know what to say. [ 106 ] That was the extent of the messages exchanged between the two. Message to K.B. [ 107 ] Exhibit 4 was a series of messages between the accused and K.B. In the messages, K.B. confronted the accused.

The accused stated the following. [ 108 ] The incident was mutual and that B.B. pushed them to hook up. [ 109 ] N.M. was going to break up with K.B. but now regretted hooking up and has pitted some “bullshit story” against him. [ 110 ] The accused went on to provide these further details in the message. [ 111 ] The accused went to Crescent Beach and met B.B. and N.M. He offered to give B.B. a ride home since she could not drive after having drank. They sat in his car and listened to music and gossiped.

N.M. and B.B. talked about hooking up with other guys and N.M. indicated that she was going to break up with K.B. and go to another male's house who was a friend of K.B. [ 112 ] They went to the accused's house where they picked up some liquor and then headed to West Beach. B.B. and N.M. each had a cooler and N.M. drank a bit of the rum. B.B. was dancing. He and N.M. made out in the presence of B.B. [ 113 ] He drove B.B. home and then he and N.M. drove around White Rock and stopped at a lookout on Dolphin Street. They were sitting in the car and mutually started to make out.

It was intense as N.M. was very aggressive and it shook him. He asked if she wanted to go to the back seat and she replied yes. [ 114 ] In the back seat, he performed oral sex on her and digitally penetrated her. At no time did N.M. ever say no. He dropped his pants and she started to masturbate him and give him fellatio. He was unable to get erect and was embarrassed. He continued to digitally penetrate her and she climaxed. She asked him to give her a break because she was sensitive. [ 115 ] N.M. started to check her phone in the middle of hooking up and texted L.B.

She went back and forth between hooking up and texting on her phone. [ 116 ] He eventually became erect but N.M. had to leave to go to the washroom. He waited for five minutes and when she did not return, he went to check on her. [ 117 ] She returned and got into the back seat again. They continued to hook up. He was dead tired and asked N.M. if she could masturbate him, which she did. He ejaculated onto his shirt. The accused was angry because he was unable to get erect. [ 118 ] The accused drove to the top of L.B.'s street and N.M. left with L.B.

He went to get a milkshake and was angry at himself that N.M. was going to hook up with somebody else. [ 119 ] He went home and found out the next day B.B. had blocked him. He had no idea why B.B. would do that so he contacted L.B. He learned that L.B. was told a version of events which cast him as villain. The Evidence of the Accused [ 120 ] The accused testified at trial.

Other than a few differences, his version of events leading up to dropping B.B. off at home generally accords with the version provided by both B.B. and N.M. [ 121 ] On April 19th, 2020, the accused received a text message from B.B. posing with a bottle of liquor. She asked him to come to Crescent Beach and give her and N.M. a ride home. [ 122 ] He arrived at Crescent Beach at 9:45 p.m., and the girls got into his vehicle. B.B. was in the front and N.M. was sitting in the back. He had removed the rear door panel covers in his car as he was working on his sound system.

There were no door handles and he told the girls how to open the door by pulling a tiny clip. [ 123 ] They went to Blackie Spit where they listened to music and talked. N.M. and B.B. were talking all night about “hooking up” with different men. N.M. talked about her boyfriend and how she was going to break up with him. B.B. asked him if he had any alcohol and he advised that he had some at home. The accused was not drinking that night as he had just started anti-anxiety medication and was driving. [ 124 ] B.B. made flirtatious remarks, suggesting that he and N.M. hook up.

She made a comment about the accused's physique, specifically about his washboard abs. The accused denied kissing N.M. at Blackie Spit or touching her thigh.

[ 125 ] The accused picked up a mickey of rum and four Hey Y'All coolers from his house and then went to West Beach. They parked the car and talked and listened to music. Both B.B. and N.M. drank alcohol, however, he believed them to be absolutely sober. [ 126 ] When B.B. got out of the car and began to dance, N.M. moved from the back seat to the front. He and N.M. stayed in the front seat of the vehicle. B.B. got into the back seat and began to use her phone.

She encouraged N.M. and the accused to hook up, saying things like, "Wouldn't it be funny you guys should hook up," and, "You guys should kiss." [ 127 ] N.M. moved from her seat to get on top of him in the driver's seat. He asked her if she wanted to kiss and she replied, "Okay." While he and N.M. were kissing in the driver's seat, B.B. was in the back seat making comical statements such as, "I'm right here, guys." [ 128 ] B.B. indicated that she wanted to go home and he dropped her off.

There was no plan to drop N.M. off at home as he believed they were going to hook up. [ 129 ] He and N.M. decided to go for a drive. They talked about the men in N.M.'s life and her modelling. They parked at a lookout on Dolphin Street in White Rock, talking and listening to music. [ 130 ] He asked her if she wanted to hook up and they started to make out in the front seat. N.M. was really aggressively kissing and touching his face. At one point she even choked him. He asked her if she wanted to go into the back seat because N.M. was really into it and so aggressive.

She replied, "Yes." [ 131 ] In the back seat the accused asked if he could perform oral sex on her and she did not object. He pulled down her pants and performed oral sex on her for several minutes. She was not wearing a tampon and he did not see any blood anywhere. She climaxed and he asked her if she wanted to give him a blowjob and she replied, "Okay." She then began to perform fellatio but he was not becoming erect. She then got on top of him as he was seated and tried to have sexual intercourse. From behind her, she tried to pull his flaccid penis into her vagina.

During this, N.M. was very aggressive, really “pulling” and “tugging” him. She was kissing him and even scratched his back with her nails. [ 132 ] Unable to have penile/vaginal intercourse after 10 minutes he asked her to please get off of him. During the time of these sexual acts, she was constantly going back and forth to her phone and texting. [ 133 ] She told the accused that she needed to go to the bathroom and left. A short time later, he got out of the vehicle to look for her and she returned. She got back into the back seat and he asked for her to masturbate him. She did and he ejaculated on his shirt.

She was still back and forth on her phone during this time. [ 134 ] They got into the front seat again. N.M. was calm. She was not upset, crying, or angry. She told him that she was going with L.B. and he drove her to meet him. He believed that she was going to hook up with him. [ 135 ] They drove a short distance and came upon L.B.'s car. She got out of the car and he said, "Have a nice night." He left the area, slightly embarrassed for being unable to perform sexually. [ 136 ] He sent B.B. a message about N.M. going to hook up with L.B.

He did not send B.B. a message stating, "Bitch didn't even swallow." [ 137 ] He went to McDonald's where he picked up a cheeseburger for his mother and then went home. [ 138 ] The next day, his mother noticed the scratches on his back. [ 139 ] The next morning he realized B.B., his best friend, had blocked him on her phone. He contacted L.B. for the purpose of asking him why and hoped L.B. would talk to B.B. He assumed he lost his best friend because of what happened with N.M. [ 140 ] The following day he received a message from K.B., whom he did not know. He provided a detailed account of what had occurred.

The account he provided was an honest and accurate version of what happened that night. The accused provided the account because he wanted to get in contact with B.B. [ 141 ] In cross-examination the accused confirmed that the text message to K.B. was the most detailed and complete version of what happened that night. When asked about his omission in the message regarding N.M. getting on top of him and attempting intercourse, he testified that he left that detail out by accident.

He was also asked about his comment in the message, "She started to jerk me off, give me head, but my dick was not getting hard." He replied that the masturbating and the fellatio happened at two different times and not together. [ 142 ] The accused was cross-examined about why he sent a text message to L.B. He conceded that nowhere in his message to L.B. did he ever ask L.B. to contact B.B. [ 143 ] The accused was asked questions regarding his evidence that N.M. was texting on her phone throughout all of the sexual acts.

He stated that N.M. was communicating with L.B. while they were initially in the front seat prior to any sexual activities. He conceded that N.M. was not going back and forth between her phone and hooking up throughout the incident but that she was texting a lot. Evidence of Shelley Davies [ 144 ] Ms. Davies testified that on April 20th, 2019, she saw scratches on her son's back. She believed them to be a result of aggressive sex. [ 145 ] I accept the evidence of Ms. Davies that she saw scratches on the accused, however, I do not put any weight on her opinion as to how they may have been caused.

The scratches themselves are consistent with both consensual and nonconsensual sexual acts. Her evidence is, however, relevant in assessing the credibility of the accused and the complainant.

Analysis [ 146 ] The first step in the application of the W.(D.) analysis is to assess the evidence of the accused. If I believe the evidence of the accused I must acquit him. [ 147 ] The Crown submits that I should reject the evidence of the accused as it was illogical and contradicts the other evidence before the court. [ 148 ] The defence submits that the evidence of the accused was credible and ought to be believed. [ 149 ] There are portions of the accused's evidence which are consistent with the evidence of other witnesses, including B.B., L.B., N.M. and Ms. Davies.

However, there are also a number of inconsistencies both internal and external in his evidence which gives the court cause for concern. [ 150 ] Several of these concerns relate to the text messages he sent K.B. and his testimony in court. With respect to the message, the accused testified that it was an accurate and detailed account of what happened between him and the complainant that night.

However, his account omits a significant detail, one which he testified extensively about in court. [ 151 ] He testified that N.M. was very aggressive and really “pulling” and “tugging” him, trying to put his flaccid penis in her vagina. But nowhere in the text message does he mention that after N.M. performed fellatio that she got on top of him and attempted to have sexual intercourse. When cross-examined about this significant omission the accused stated that he accidentally forgot to mention it.

I find this difficult to comprehend, particularly since this was a significant sexual act between him and N.M., and as well because he provided so many other smaller and insignificant details and comments in his messages to K.B. [ 152 ] There are also other inconsistencies between the accused's version of events and the text messages and his evidence. These include the following. [ 153 ] In the text message to K.B., the accused writes that he digitally penetrated N.M. and she climaxed.

In his evidence, the accused stated that the complainant climaxed when he was performing oral sex. [ 154 ] In the text messages, the accused told K.B. the following. After he performed oral sex on the complainant, he then engaged in digital penetration. He dropped his pants and wrote, "N.M. started to jerk me off, giving me head, my dick was not getting hard at all." He then digitally penetrated the complainant again and she climaxed.

Thereafter N.M. went on her phone. [ 155 ] There are two things that arise from this version. [ 156 ] First, in his evidence, the accused never mentioned that he digitally penetrated the complainant. [ 157 ] Secondly, in his evidence, he testified that the masturbation and the fellatio occurred at two separate times; specifically, the fellatio occurred after he performed oral sex on N.M., and the masturbation occurred near the end of the night. When N.M. masturbated him, he was erect and able to ejaculate.

The evidence contradicts his statement in the message to K.B., as in the message the accused refers to the masturbation and the fellatio both occurring prior to his ability to become erect. [ 158 ] Furthermore, the statements of the accused in his message to K.B. are also contradicted by other evidence which is before the court. One such contradiction is the accused's comment in the text where he implies that he learned about N.M.'s version of events from L.B. He states that the version cast him as a villain.

However, the evidence from L.B. and the text messages between the accused and L.B. clearly demonstrate that L.B. did not provide any such information to the accused. [ 159 ] The accused testified that he became aware that B.B. had blocked him on her phone. He indicated that the purpose of providing the detailed account to K.B. in the message was so that B.B. would contact him. He also testified that he sent the unsolicited text to K.B. and L.B. for the same reason. He wanted L.B. to contact B.B. and tell her to contact the accused. However, in neither of these messages does the accused make any such request.

Further, not only does he not ask K.B. or L.B. to contact B.B., but he also points the finger at B.B. as a person who encouraged him and N.M. to hook up that night. [ 160 ] The accused's message to L.B. is troubling in and of itself. In the message, the accused explained to L.B. that the incident between him and N.M. was mutual and that N.M. was the aggressor. He stated that everything was fine and that B.B. had pushed them to hook up.

However, if that were true, it is difficult to understand why the accused would jump to the conclusion that B.B. had blocked contact with him because of what had happened between him and N.M., especially when nothing untoward occurred and B.B. had encouraged the accused and N.M. to hook up. [ 161 ] I agree with the Crown that the reason why the accused sent the messages to L.B. and K.B. providing details of his contact with N.M. was to get ahead of the situation and to set up his own version of events, one which was favourable to him. [ 162 ] The accused's evidence was also inconsistent with the evidence of L.B.

With respect to L.B., I must say I found L.B. to be a very credible and reliable witness who comes before the court without any bias. He is the reliable yardstick against which the evidence of both the accused and N.M.'s evidence can be measured. I accept his evidence without hesitation. [ 163 ] L.B. testified that when he observed N.M. walking towards his vehicle from the accused's, the complainant was visibly upset, crying and hyperventilating.

He testified that she continued to be upset and cry in his vehicle and he spent a considerable part of the night just trying to calm her down. [ 164 ] The accused, on the other hand, testified that N.M. was perfectly fine while she was with him at the end of the night. She was not angry, crying or upset.

[ 165 ] N.M. testified that although she did not cry in the car with the accused, she was visibly upset and on the verge of tears. [ 166 ] I find it difficult to accept that the complainant was perfectly fine one minute but suddenly, seconds later, was extremely distraught, crying and hyperventilating. I do not accept the evidence of the accused on that point. [ 167 ] The accused's evidence was also inconsistent internally and externally about N.M.'s texting with L.B. The accused testified that N.M. had been texting on her phone, presumably to L.B., throughout the sexual act.

In his message to K.B., he stated that N.M. started checking her phone after she had climaxed and then began to text L.B. He stated that N.M. went back and forth between texting on her phone and hooking up. [ 168 ] In cross-examination he resiled from that position and stated that, actually, N.M. was just texting a lot. He clarified that she had been chatting with L.B. while in the front seat prior to them going into the back seat and after she had attempted sexual intercourse with him. However, that evidence is not only contrary to N.M.'s evidence but also L.B.

L.B. stated that he friended N.M. at midnight but that he did not receive a message or photos from her until at least 12:30 a.m. He testified that he received a series of photos from her within a span of just a few minutes, if that, and then received a text message from her. The timeline is inconsistent with the version provided by the accused. [ 169 ] Finally, I do not accept the accused's evidence regarding the kissing incident at West Beach. The accused testified that N.M. went over the centre console, got on top of him while he is in the driver's seat and began to aggressively kiss him.

I find that this would be a difficult maneuver given the presence of the steering column and wheel, and the little available space in that position. I accept that N.M. and the accused kissed but not in the manner in which he described. [ 170 ] As a result of my findings, I reject the evidence of the accused. I do not find him to be credible.

I find that his version of events is implausible and one that does not make any sense. [ 171 ] I next turn to the second stage of the W.(D.) analysis. [ 172 ] Even though I do not believe the evidence of the accused, I must still consider whether his evidence raises a reasonable doubt. Given all of the difficulties with the accused's evidence on significant points, I am unable to find that it does. [ 173 ] I must then ask myself whether, on the basis of the evidence that I do accept, if I am convinced beyond a reasonable doubt by that evidence of the accused's guilt.

To determine this, I must carefully scrutinize the evidence of the complainant, N.M. [ 174 ] I have already outlined the inconsistencies and concerns regarding her evidence. [ 175 ] Overall, I find that the complainant was credible and reliable.

While there are inconsistencies between her evidence and her previous statements and/or other witnesses, the inconsistencies were not of such a significant nature that undermines her overall credibility or reliability. [ 176 ] Inconsistencies in N.M.'s evidence and her inability to recall conversations and details prior to the incident can be explained by the passage of time and her consumption of alcohol.

Specifically, I note that her inconsistencies and inability to recall relate to such matters as the comments made by B.B. about N.M. and the accused hooking up; which doors on the accused's vehicle lacked panel covers and whether N.M. had difficulty opening the door; who was dancing at West Beach; and N.M. and the accused kissing at West Beach. [ 177 ] With respect to inconsistencies between her evidence and her statement to the police, I note that the inconsistencies are primarily inconsistencies in degree as opposed to substance.

For example, was she crying with tears pouring down her cheeks in the car with the accused, or was she visibly upset and on the verge of tears? Did she say no and to stop once or many times? Did she kick the accused when he performed oral sex on her or did she push him away with her legs and feet? Did the accused digitally penetrate her for a short period of time or for a longer length of time? [ 178 ] Her evidence in the witness box was generally more conservative than the version she provided to the police just a few days after the incident.

I accept her evidence that she was traumatized when she gave her statement to the police. It is not difficult to believe that she, a young 16-year-old girl, may have been more emotional and upset at the time she gave her statement as the incident was still fresh, having occurred so recently. [ 179 ] Much has been made as to whether the complainant was wearing a tampon and if she was on her menstrual cycle at the time. This was a personal, yet completely unnecessary detail. She had no reason to fabricate this evidence and I do not find her evidence on this point to be inconsistent.

In her police statement she told the officer that her period was light at the time. In her evidence she stated that she noticed that she had blood on her pants in the morning but that she did not bleed through her clothes. [ 180 ] While the SANE nurse examiner did not observe any blood on the vaginal swabs, I note that the exam was almost a full day after the incident. Merely the fact that Ms. Purcello did not detect blood on the swab is not inconsistent with the complainant having been on her period.

There certainly is no evidence before me as to what her blood flow ought to have been at that particular time of her cycle. [ 181 ] Much has also been made about the scratches on the accused's back. The complainant testified that she did not recall ever having scratched the accused's back. It is not implausible that N.M. did not recall doing that given that she was in the midst of being sexually assaulted. [ 182 ] I find that the complainant gave her evidence in a forthright manner and did not exaggerate.

I also note that she had no motive to fabricate these events. [ 183 ] When I test N.M.'s evidence in light of all the evidence in this case, I find that it does harmonize with the evidence of other witnesses, including in areas of particular significance and those related directly to the offence. Her evidence is supported by the

evidence of L.B. and Cst. Carter, the two text messages that the accused sent to B.B., and the conduct of the accused after the incident. By that I mean the messages that the accused sent to L.B. out of the blue, and the one in which he painstakingly detailed the events of the night to K.B. [ 184 ] Taking all of the evidence into account, I find that her version of events has a ring of truth to it. [ 185 ] In conclusion, I find that the inconsistencies in the evidence of N.M. are not so significant that they are serious enough to undermine her overall credibility and reliability.

When I assess her evidence in the context of other witnesses and the evidence as a whole, I find she was credible and a reliable witness. [ 186 ] I accept her evidence that she did not consent to the following: the incident in the front seat where the accused held her head and put his penis in her mouth; all of the events in the back seat which included digital penetration, oral sex and sexual intercourse. [ 187 ] For these reasons, I find the Crown has met its burden and proven the offence beyond a reasonable doubt. [ 188 ] Mr.

Davies, please stand. [ 189 ] Your counsel has said and done everything possible on your behalf. I am satisfied beyond a reasonable doubt that you sexually assaulted N.M. and accordingly, I find you guilty. (REASONS FOR JUDGMENT CONCLUDED)