R. v. Morales, 2018 BCPC 31

Citation: R. v. Morales 2018 BCPC 31 Date: 20180214 File No: 241613-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. DAVID ALVARO GARCIA MORALES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT BAN ON PUBLICATION 486.4(2) CCC Counsel for the Crown: J.M. Robinson Counsel for the Defendant: A. Picard and K.L. Hill Place of Hearing: Vancouver , B.C. Dates of Hearing: July 18, 19, 20, 24, 26; November 23, 2017 Date of Judgment: February 14, 2018 A Corrigendum was released by the court on February 26, 2018.

The corrections have been made to the text and the Corrigendum is appended to this document. A. INTRODUCTION [ 1 ] David Alvaro Garcia Morales (the “accused”) has been charged with sexually assaulting J.H. on December 21, 2013, in

Burnaby, British Columbia, contrary to s. 271 of the Criminal Code of Canada (the “ Code ”). [ 2 ] He has also been charged that he enabled or assisted himself to commit the alleged sexual assault of J.H. by attempting to choke or suffocate her by grabbing her throat and covering her mouth contrary to s. 246 (

a) of the Code . [ 3 ] J.H. and the accused were complete strangers to each other prior to December 21, 2013. Both had consumed alcohol during the course of the evening. They met up as J.H. was walking eastbound on the sidewalk on the south side of Kingsway. [ 4 ] The weather conditions were inclement. There was snow and ice on the sidewalk, adjacent parking lots, and laneways.

They walked over multiple blocks until J.H. became tired and stopped to rest at the parking lot of a closed Chinese food restaurant. [ 5 ] J.H. testified that the accused directed her to the rear of the restaurant where he violently sexually assaulted her. The sexual assault included attempted anal intercourse and unprotected vaginal intercourse to the point of ejaculation. The accused then fled. [ 6 ] J.H. called 911. Shortly after that the police arrived on scene and an investigation commenced. Part of the investigation included a medical examination of J.H.

The doctor who performed the medical examination took both internal and external swabs of J.H.’s vagina. Subsequent DNA analysis identified profiles that matched both the accused and J.H. [ 7 ] The accused testified that J.H. fully consented to having a sexual encounter. During the course of the sexual encounter, the accused was performing oral sex and digitally penetrating J.H. while he was masturbating.

He testified that he was so aroused that he ejaculated near the area of her vagina, which he says, would explain the presence of his semen inside J.H.’s vagina. [ 8 ] The accused testified that after he ejaculated he lost his erection and was unable to perform sexual intercourse, which angered J.H. She told the accused to “fuck off”. He took off leaving J.H. in the parking lot behind the restaurant. B. ISSUES TO BE DETERMINED [ 9 ] The accused and J.H. were the only people present during the sexual encounter behind the restaurant. [ 10 ] Their versions of events are diametrically opposed.

As such, their credibility and the reliability of their evidence must be determined. [ 11 ] Ultimately, in assessing and weighing all of the evidence, it must be determined whether the Crown has discharged their burden of establishing beyond a reasonable doubt the essential elements of the offences laid against the accused. C.

ADMISSIONS OF FACT [ 12 ] Pursuant to s. 655 of the Code , the accused admitted certain facts that are summarized as follows: • On December 21, 2013, at approximately 12:34 hrs., members of the Burnaby RCMP detachment were dispatched to 6408 Kingsway, following a 911 call from J.H. reporting that she had been sexually assaulted by an unknown male; • The integrity of the crime scene for the completion of a forensic examination was not compromised; • The forensic examination revealed two sets of footprints leading down the south side of the restaurant to the rear area.

One was that of a smaller footprint and one was that of a much larger footprint; • At the rear of the restaurant was a larger area where it appeared that a struggle may have taken place. There were footprints, and what appeared to be some handprints in the snow; • A set of footprints were observed in a location leading away from the area where a struggle may have taken place up to a chain-link fence; • The integrity and continuity of all exhibits relating to the DNA evidence; • Laboratory testing, examinations of profiles, and conclusions relating to the DNA evidence. D. DETAILED BACKGROUND (

i) J.H.’s Evidence [ 13 ] In direct examination, J.H. testified that in the afternoon hours of December 20, 2013, she went with her then boyfriend, R.C., to a restaurant or pub in New Westminster where she believed she had a couple of drinks of either bourbon or whiskey. [ 14 ] Following that, in the late afternoon or evening, J.H. and R.C. made their way to Metrotown in Burnaby, as J.H. wanted to buy some earrings. She found and purchased the earrings that she was looking for. Afterwards, they met some people, and hung out in the area of the food court.

J.H. had a couple of drinks of whiskey or bourbon from a “to-go cup”, which she brought from home. [ 15 ] J.H. described herself as not being “very intoxicated” and that she was aware of her surroundings. [ 16 ] After the mall closed, J.H. left with R.C. The plan was to go to the Edmonds Skytrain station. While it was not snowing at the time, there was snow and ice on the sidewalk as they walked towards the Skytrain station. As they travelled eastbound along the sidewalk, she described the sidewalk conditions as becoming “super slippery and icy”. She described being “slightly intoxicated”, but “coherent”.

[ 17 ] J.H. got into an argument with R.C. As a result of the argument, R.C. left on a bus leaving J.H. on the sidewalk. She described she slipped and fell when she felt the presence of someone behind her in the area of a Whitespot or Triple-O restaurant. The presence turned out to be the accused. [ 18 ] J.H. recalled the accused put his arm around her and said words to the effect, “I’ll help you, like I’ll help you get home”. She responded by telling the accused that she was fine and she could get home on her own, and to please leave her alone. [ 19 ] The accused continued to walk with J.H.

At one point, the accused asked her if she wanted to go home with him and she responded with a no. She was not sure how long they walked together, but at some point, the accused sexually propositioned J.H.

She then described what occurred following the sexual proposition: … Umm, I'm not entirely sure how long we walked for, umm, and to be honest I don't know -- I don't know exactly how we got behind the building and, umm, I know that the accused had offered in exchange of sex for, like -- well, it started with like a blow job for money and then it escalated and I -- I -- I just remember saying, like, please leave me alone.

And, umm, and I don't know why I did this and I think it might have been out of desperation to just try and just get him to leave me alone, but I lifted up my shirt quickly and after that I know that I was, umm, on the ground and, umm, then the incident happened. THE COURT: And tell me about the incident. A. Umm, well, he -- I don't know what came first, if the hand and the arm around my neck happened first or my pants were pulled down first.

Umm, when he had me flipped onto my back with my knees up onto my chest and, umm, and I was screaming the whole time and - - so my pants came down and I know that -- I didn't see his genitals but I felt his hand over his genitals and he tried to put himself -- he tried to put himself into my anus and that didn't work so -- so he put himself inside my vagina and, umm, then he finished and I remember seeing him walk -- like, walking away in the opposite direction that we came from.

And I'm not sure if I stood up or if I had just sat up and I saw my phone and I called the police and -- and then they came and got me. (Transcript, July 18, 2017, p. 14, ll. 41-47; p. 15, ll. 1-23) [ 20 ] J.H. testified that the accused was not forceful in directing her to the back of the restaurant; rather, he guided her to the rear with his arm around her. She described being terrified.

She described being confused and not knowing “what the hell was going on and I, unfortunately, just went with it”: ibid , p.18, ll. 37-40. [ 21 ] In a move described by J.H. as a desperate solution to appease the accused, she lifted up her jacket, shirt and bra, and in doing so she exposed her breasts to the accused.

The next thing she recalled was being either pushed or thrown to the ground resulting in the back of her head striking the ground. [ 22 ] J.H. recalled that the accused pulled her tights down to her ankles, and that her legs were up by her chest and neck area, and that either his arm or his hand was pushing on her neck with sufficient force that she had trouble breathing. [ 23 ] The accused first attempted to penetrate J.H.’s anus. She experienced considerable pain from this attempt. Ultimately, the accused penetrated her vagina with his penis to the point of ejaculation.

Similar to the attempt to penetrate her anus, the penetration of her vagina caused her to experience considerable pain. Throughout the ordeal, she described feeling “terrified” and constantly screaming out R.C.’s name. [ 24 ] After the accused ejaculated, J.H. recalled that he just walked away in the opposite direction from where they had come from. She did not recall seeing a chain-link fence.

She then made the 911 call. [ 25 ] She described sustaining several injuries, including, vaginal bleeding, laceration to a finger, bruises and scrapes to either or both knees and, she was pretty sure, she had a swollen neck. The physical pains from the injuries lasted for a couple of days. [ 26 ] She “absolutely” did not consent or encourage the sexual encounter with the accused. [ 27 ] In cross-examination, J.H. agreed that it was possible that she had consumed some drugs on December 20, 2013, though she was “fairly certain” that she had not.

She admitted she was impaired by alcohol that evening, and described her level of impairment as “slightly intoxicated”. She denied that she was drunk. [ 28 ] J.H. agreed that her memory of events through the evening of December 20, 2013, and into the early morning hours was less- than-perfect, but denied that she could not remember specific facts of events that occurred that evening. [ 29 ] J.H. testified that she had a “very vivid memory” of the events surrounding the evening, though there were also “bits and pieces” that she could not quite remember.

She agreed that in her statement to the police, some 30 to 35 hours after the encounter with the accused, she stated the events of the evening were a “blur”. She explained that she had been through a traumatic event, but that did not mean she could not recall the events of that night. [ 30 ] J.H. did not recall a dispute or incident between a security officer and R.C. at the Metrotown Mall. [ 31 ] After leaving the mall with R.C., J.H. recalled that they crossed Kingsway to the north side to buy some cigarettes at a service station.

They then crossed back to the south side of Kingsway to make their way towards the Edmonds Skytrain station. While walking to the Skytrain station, an argument broke out between R.C. and her. She could not recall what the argument was about, though denied that it had anything to do with her being drunk. [ 32 ] She denied that she fell because she was drunk. Rather, she fell because the sidewalk was icy.

[ 33 ] J.H. recalled both texting and trying to call R.C. on her cell phone. She wanted R.C. to come back to get her. She denied that she sent word to R.C. that someone had sexually touched her. She had no memory of R.C. coming back to confront her about any touching allegation. [ 34 ] J.H. testified that it was her intention to either get on a bus or continue walking along Kingsway to the Edmonds Skytrain station.

Either way, she agreed that she did not have any money on her that evening to pay for the bus or the Skytrain. [ 35 ] J.H. recalled the accused putting a hand on her shoulder or her arm to help her up to her feet. Words were spoken between the two of them, though she could not recall the conversation. She denied that she “yelled” that she had just been raped when she first came into contact with the accused. [ 36 ] J.H. agreed that the two of them continued to walk eastbound along Kingsway and that she had opportunities to “ditch” the accused.

She did not recall if there were any open businesses which would have given her an opportunity to avoid the accused. She testified that she did not know what to do and that she was afraid. [ 37 ] It did not cross J.H.’s mind while she was walking with the accused that she could have used her cell phone to contact friends or the police to seek assistance. She had no recollection of talking to R.C. on her cell phone and yelling at him for abandoning her. [ 38 ] J.H. denied that the accused offered to pay for a cab for her to get home. Rather, she recalled the accused inviting her to go to his home.

She also recalled that on two occasions the accused offered to pay her money for oral sex, though she could not recall the amount he was prepared to pay. [ 39 ] When they got to the area of the Chinese food restaurant, J.H. characterized the suggestion that the accused told her that he would wait in the parking lot of the restaurant with her until a cab came to take her home as “impossible”. [ 40 ] J.H. agreed that she was tired and voluntarily went into the parking lot of the restaurant to rest.

She denied that, at her request, the accused crossed the street to go to a Super-Save gas station to buy her some cigarettes. Had he crossed the street to get cigarettes, she would have left. [ 41 ] J.H. had a vague recollection that the accused directed her to the rear of the restaurant with his arm around her back. She denied this took place after he told her he was unable to get her any cigarettes.

She agreed that she was not pushed or dragged to the rear of the restaurant, but chose to go with him because she was afraid. [ 42 ] J.H. agreed it was not a rational act to pull up her clothing to display her breasts to the accused behind the restaurant. She agreed that it was hard to believe that she did such a thing, reiterating that she was not thinking rationally. [ 43 ] While admitting that she lifted up her clothing to show her breasts, J.H. denied the suggestion that the accused proposed that they find a different place to go, and that she said, “no, let’s just do it right here”.

She denied the suggestion that she then put her jacket on the ground and then lay on the ground where she was joined by the accused, and they began kissing which then led to the accused performing oral sex on her. [ 44 ] J.H. denied that there was any conversation about sexual intercourse. She denied that her legs were wrapped around the head of the accused while he performed oral sex. Rather, her legs were pinned up by her chest and throat area.

The accused had pulled her tights down to her ankles and that is when she felt his penis and not his fingers, penetrate her vagina. [ 45 ] J.H. denied any conversation respecting sexually transmitted diseases. She denied that he was masturbating while performing oral sex on her, and ejaculated onto her. [ 46 ] J.H. described the accused having a hand or forearm on her throat when her legs were pinned up by her chest and throat area, which caused breathing difficulties.

She described experiencing pain and being terrified. [ 47 ] J.H. denied the suggestion that she was upset that the accused had ejaculated prior to intercourse, and that she told the accused to “fuck off and get lost”. She agreed that the accused did leave the rear of the restaurant by walking westbound, but did not see him jump over any fence. She then got up and started walking or running towards Kingsway where she phoned 911. [ 48 ] J.H. denied the suggestion of the accused that she regretted the sexual encounter with the accused and that is why she called 911.

She agreed that she did not try to physically resist the accused, but she was screaming like “bloody murder”. [ 49 ] When it was suggested that it was open to her to fight back J.H. responded: Q It was open to you to fight -- A I did not -- Q -- to fight him -- fight back? A I did not consent to have intercourse with this person. I didn't want to. I wanted to be left alone.

And regardless of anything, I didn't want to have sex with him and it was forced upon me. (Transcript, July 18, 2017, p. 109, ll. 21-27) [ 50 ] At the time of her sexual encounter with the accused, J.H. was using an Intrauterine Device (“IUD”) as a means of birth control. She had been using such a device for two years and recalled on one occasion experiencing spotting attributed to the use of the IUD. [ 51 ] In response to questions by the Court, J.H. estimated that she was approximately 142 to 145 pounds on the date of the encounter

with the accused. [ 52 ] J.H. recalled that her cell phone fell into a puddle during her encounter with the accused. [ 53 ] Other than her tights, J.H. probably was not wearing any underwear that evening. (ii) Police Evidence [ 54 ] The Crown called various police officers to give evidence at this trial.

That evidence included: • Observations made by police officers at the alleged crime scene, including footprint impressions; • A review of photographs taken at the alleged crime scene; • Closed circuit television (“CCTV”) canvassing of various businesses in the area from Metrotown to the alleged crime scene area; • Distances; • Taking of witness statements including a statement taken from R.C., and; • Securing exhibits. [ 55 ] Constable Sarah-Louise McIsaac testified that she was dispatched at or around 0034 hrs. in response to an emergency call that a female had been sexually assaulted in an area later identified as 6408 Kingsway in Burnaby.

At 0037 hrs., Constable McIsaac was waved down by J.H. [ 56 ] Constable McIsaac was asked to describe J.H.’s demeanour when she first made contact with her: Q Okay, and what was her demeanour like when you first encountered her? A She was extremely upset. She was shaking. She was complaining that she was wet, she had fluids spilling down her legs. She wanted to know, did we catch the person? Did we catch the guy? And she wanted help. (Transcript, July 20, 2017, p. 4, ll. 13-19) [ 57 ] Constable McIsaac observed that J.H.’s clothing was wet.

J.H. also complained that her leggings were wet. [ 58 ] At Constable McIsaac’s request, J.H. gave a statement in relation to the alleged sexual assault. As she gave her statement, Constable McIsaac observed that J.H. was shaking, she was upset, there were tears on her face, she appeared scared and she looked cold. [ 59 ] Constable McIsaac described J.H. as being very cooperative. She described her repeatedly asking, “have you found this person?” [ 60 ] J.H. declined EHS assistance. Constable McIsaac then took J.H. to the VGH to have a sexual assault examination.

She described J.H. as being very cooperative and willing to have a sexual assault examination and to provide any evidence which may support any DNA findings. (iii) R.C.’s Evidence [ 61 ] In direct examination, R.C. testified that in the afternoon of December 20, 2013, that he went with J.H. to a location at the New Westminster Quay before going to the Metrotown Mall. He recalled that they took some premade whiskey drinks split 50-50. [ 62 ] They arrived at the Metrotown Mall between 4:00 PM and 5:00 PM.

After doing some window shopping they ended up in the food court where they ‘hung out’ with some people they met for a couple of hours. [ 63 ] At one point R.C. went outside with two of the individuals to smoke some hashish. [ 64 ] R.C. left with J.H. after being told by a security guard that the mall was closing. He did not know what time it was when they were asked to leave. [ 65 ] After leaving the mall they decided to get some cigarettes, and then make their way to the Edmonds Skytrain station.

They crossed Kingsway to the north side where they purchased some cigarettes at a Chevron gas station, before crossing back to the south side, and proceeding eastbound towards the Skytrain. [ 66 ] R.C. described that he was “fine” but that J.H. was “really drunk” as they walked eastbound along Kingsway.

After walking for 10 to 20 minutes, R.C. became frustrated over the time it was taking to get to the Skytrain, and blamed J.H. for underestimating the distance in weather conditions where it was windy and cold with snow on the ground. [ 67 ] R.C. described that they both became upset and frustrated, resulting in an argument breaking out. At one point he hopped on a bus as he did not want to be with J.H. as he was irritated with her.

While on the bus, he received a phone call from J.H. asking that he come back for her because someone was following her and had tried to grab her. [ 68 ] R.C. got off the bus and went back to join J.H. He did a reconnaissance of the area for 10 to 20 minutes, but failed to find anybody who may have accosted J.H. He felt that J.H. had made up the story as a ruse to get him back to be with her. This made him

more upset, so he again hopped on a bus, leaving J.H. to her own devices. [ 69 ] In cross-examination, R.C. described J.H. as “stumbling around” from her consumption of alcohol. He denied that J.H. smoked any hashish that day. [ 70 ] R.C. agreed with the suggestion of the accused that there was some type of dispute or confrontation with a security guard at the mall which resulted in them being asked to leave the mall. [ 71 ] R.C. denied the suggestion of the accused that he became irritated in part due to J.H.’s state of intoxication.

It was the underestimation of time they took to get to the Skytrain station in snowy weather conditions that caused his irritation. [ 72 ] R.C. agreed that J.H. expressed jealousy that he was involved with other women “on the side” during the argument. [ 73 ] R.C. agreed that after he went back to J.H., after she had complained that someone tried to grab her, she told him that this incident took place right where R.C. met up with her. [ 74 ] In the following exchange it was put to R.C. that, the next morning after J.H. returned from the VGH, she told him no sexual assault took place: Q I'm suggesting to you that the next morning there was a comment made by Ms.

H. to you. A Okay. Q Her words -- I wasn't there, so it's hard for me to know the specific words, but her words were essentially that nobody had sexually assaulted her. Someone had grabbed her arm and she had alleged a sexual assault to get your attention? A She did not say that in the morning, no.

She came home with a rape kit, crying. (Transcript, July 20, 2017, p. 46, ll. 16-25) [ 75 ] Though it was put to him, R.C. had no memory of telling the police in his statement dated December 26, 2013, that it was his opinion that J.H. was “crying wolf” or that he “called bullshit on it.” [ 76 ] R.C. agreed with the accused that J.H. had called him after he caught the bus on December 21, 2013, at 00:07 hrs. 00:08 hrs., 00:11 hrs., and 00:25 hrs. His memory was vague about what, if any, conversation may have taken place. (iv) Expert Evidence [ 77 ] Dr.

Sarah Olson was qualified to give opinion evidence in three fields: (1) medicine; (2) the forensic examination of sexual assault patients; and (3) the mechanism of vaginal injuries. [ 78 ] Dr. Olson performed the medical examination of J.H. on December 21, 2013, shortly before 4 AM at the VGH. She testified that she followed all required procedures in her examination of J.H. At the completion of her examination, she completed a Sexual Assault Service Record (the “SASR”) that was filed as an exhibit. [ 79 ] In her SASR, Dr. Olson noted that she collected six forensic samples from J.H..

They included one buccal swab, one mouth swab, one external genital swab, two internal vaginal swabs, and one cervical swab. [ 80 ] Dr. Olson was asked in direct examination to first describe her initial observations of the physical examination of J.H.: Q Please describe how the physical examination with [Ms. H.] unfolded, and perhaps with reference to your legal report if need be? A Sure. So I conducted the exam in the usual fashion I described earlier, and what I noted that she had tenderness on both sides of her neck.

She had a small one-and-a-half centimetre area that was red in the middle of her back, and she had a small -- quite small circular abrasion on her -- the fourth finger of her left hand, and then she had two five-centimetre fairly symmetric, as in similar on both sides, bruises and sort of abrasions or kind of very superficial scratches on both of her knees. (Transcript, July 24, 2017, p. 21, ll. 24-37) [ 81 ] Dr. Olson was then asked to describe her observations of the genital examination of J.H.: A Yeah. So she was quite tender externally, and I have my own sort of notation.

I put two plus signs so that's significant tenderness externally on the outside, sort of like the outer labia. Anyway, the external genitalia were very tender to touch, and then also tender -- as I mentioned before, I did not see any abrasion or injury and as you know, this is very common and I did apply that toluidine blue dye and did not see any injury. And, then, she was also very tender with the insertion of the speculum. She tolerated it but that was very uncomfortable for her. And, then, another notable finding, of course, in this case was that there was bleeding.

So she had noted to me her history, which I put a note of earlier, that she had noticed vaginal bleeding after the assault happened. I should say this was not consistent with menstruation. She was in the middle of her cycle. So not a time when we would expect to have vaginal bleeding. And, so that was seen outside a little bit, and then certainly with the insertion of this speculum, there's a fair -- fairly large amount of blood seen. And I saw it sort of pooling behind.

So inside the vaginal wall, then you'll see the cervix, which is the bottom of the womb, and often blood will kind of pool or collect just behind that. No matter what the reason for bleeding that's often where blood will be, and so I noticed that there.

(Transcript, July 24, 2017, p. 22, ll. 25-47; p. 23, ll. 1-8) [ 82 ] Dr. Olson testified that the blood pooling that she observed was likely coming from J.H.’s cervix. She described the blood pooling as significant as it was a “more bright red kind of blood … And not something I’ve seen much in my sexual assault exams”: ibid at p. 23, ll. 38 - 44. [ 83 ] Dr. Olson described the bleeding as active but was unable to say whether or not the cause of the bleeding was injury related. She described J.H. as “tender and uncomfortable” which made it challenging to determine the cause of the bleeding. [ 84 ] In Dr.

Olson’s experience, it was very rare that she would observe vaginal injuries arising from consensual sexual contact. Sexually active women could sustain small abrasions or raw areas arising from consensual sex.

However, in those scenarios, most of those patients have other medical issues including, “increased discharge, itching and other things that are increasing the sensitivity of their skin”: ibid at p. 25, ll. 8 - 11. [ 85 ] In sexual scenarios involving rough consensual sex or sex without adequate arousal lubrication, a woman could definitely experience increased discomfort, and even sustain some small tears or abrasions: ibid at ll. 18 -23. [ 86 ] Dr. Olson was asked for her opinion as the possible cause of J.H.’s injuries: A Yeah.

My opinion is that -- is that the tenderness of both sides of her neck is consistent with her history of being -- of being strangled, of having hands placed around her neck. Generally speaking, the abrasion and the small area in the back -- around the hand and the redness in the back are consistent with being handled roughly. It's impossible to say the exact mechanism of that. And she gave a history of being pushed to her knees. She has got these symmetric injuries on her knees. That's very consistent with that history.

And the tenderness -- the tenderness over the external genitals is definitely consistently with force recently applied to that area. As I mentioned, the -- and the tenderness inside, as well, which is notable for her. So she had not tenderness just on the outside but internally. And the bleeding is, again, more difficult to say with certainty because I didn't see a laceration, but certainly that could also be consistent with force applied, recently applied to that area. (Transcript, July 24, 2017, p. 26, ll. 22-44) [ 87 ] In cross-examination, it was suggested to Dr.

Olson that, while she made a conclusion that her observations were consistent with sexual assault, that such a conclusion was not necessarily a result of sexual assault. In response she testified: A It doesn't -- yeah. It's -- it's -- as we've said, it's -- it's possible for women to have discomfort, injuries and so on after consensual sex. That's -- that's reported, that's -- yes. But as I've said, I've seen that very, very rarely in my general practice in many, many, many sexually active women and have not seen a degree of tenderness that I've described. (Transcript, July 24, 2017, p. 29, ll. 21-28) [ 88 ] Dr.

Olson described J.H. as cooperative but upset at times. She denied that J.H. was drunk or passed out at any time. [ 89 ] Dr. Olson agreed that J.H. did not complain of any injury to her head, of any difficulty breathing or that there was any observable injury to her neck. She also agreed that theoretically a person running, jogging or walking in an icy area, which causes them to slip and fall to the ground, could result in some injuries to their hands and knees. [ 90 ] With respect to the blood pooling observed by Dr.

Olson, she testified that it was difficult to quantify the amount of blood, but comparatively, it would be in an amount more typically seen on the first day of a woman’s menstrual cycle. She further testified that J.H. told her that the bleeding started after the alleged sexual assault and before the medical examination. [ 91 ] Dr. Olson confirmed that J.H. used an IUD as a means of birth control. She agreed that a woman using an IUD could experience bleeding during consensual intercourse, but in this case, the amount of blood she observed was much more than she would expect following consensual sex.

If she was aware that the bleeding resulted after consensual sex, she would perform further investigations such as having an ultrasound performed. [ 92 ] It was suggested to Dr. Olson that she did not note anywhere in her records that the amount of blood she observed was an unusual amount of blood. In response to the suggestion she testified: A But I know my notations. So on the record where you see the plus sign. Q Yeah. A So I made -- this is the same notation that I use in all my clinical practice. So I put a plus sign so plus blood.

So for me that means not just a small amount, not just a smear, not just a brown-ish discharge. Plus blood, I know that notation. That means to me that it was significant. I'm -- I went further to say that it was maybe coming from the cervix, coming from the cervix. So it was notable enough that I took those extra steps. (Transcript, July 24, 2017, p. 41, ll. 1-13) [ 93 ] Dr. Olson agreed that J.H. reported that she experienced tenderness to her vagina, as a result of the alleged sexual assault. Dr.

Olson agreed that the insertion of fingers, if it was rough and tough, could cause similar tenderness, though she was of the opinion that the insertion of fingers would not easily cause the same tenderness as penile penetration or another object. [ 94 ] Dr. Olson agreed that if multi-fingers were inserted into J.H.’s vagina that it was possible that it could cause discomfort.

[ 95 ] Dr. Olson also agreed that it was within the realm of possibility that J.H. could have sustained injuries to her vaginal area if she had made a quick decision to have consensual sex with a partner that involved finger insertion, rather than penile penetration when she was not lubricated. [ 96 ] It was suggested to Dr. Olson, when taking into account the totality of the circumstances surrounding the alleged sexual assault of J.H., that her reported complaints could have occurred through a combination of events, including consensual sexual activity. In response to the suggestion Dr.

Olson testified: A It seems very unlikely especially including the neck and the degree of -- the degree of bleeding that was there, but it's possible. (Transcript, July 24, 2017, p. 44, ll. 41-43) [ 97 ] Lindsay Carter was qualified by the Court to give opinion evidence in relation to the

interpretation of the results of body fluid identification testing, the

interpretation and comparison of DNA typing profiles, and in determining the statistical significance of DNA matches. [ 98 ] In direct examination, Ms. Carter reviewed various laboratory reports prepared in relation to the DNA evidence seized in this case. She testified that a total of six forensic samples were analyzed for the presence of DNA, including one buccal swab, one mouth swab, one external genital swab, two vaginal swabs and one cervical swab. [ 99 ] DNA profiles were generated from the forensic samples. It was Ms.

Carter’s opinion that the DNA typing profile obtained from the external genital swab was of mixed origin consistent with originating from two individuals, J.H. and the accused. [ 100 ] Ms. Carter was also of the opinion that the DNA typing profile obtained from the first of the two vaginal swabs was of mixed origin, consistent with having originated from two individuals, J.H. and the accused. There was also a trace component that was insufficient to generate a match. Further examination of the first genital swab revealed the presence of spermatozoa. [ 101 ] Ms.

Carter was also of the opinion that the DNA typing profile obtained from the second vaginal swab was of mixed origin consistent with having originated from three individuals, J.H., R.C. and the accused. It was assumed that the cast off DNA sample related to a consensual partner, R.C. [ 102 ] In cross-examination, Ms. Carter agreed that DNA found in various bodily substances can survive in open air for some period of time, at least for a few minutes. [ 103 ] Ms. Carter also agreed that DNA can be found in other bodily substances, including skin cells mixed with saliva.

While the RCMP laboratory does have a test for salivary amylase, the test is not described as a confirmatory test because amylase can be found in different body fluids. [ 104 ] Ms. Carter agreed with the suggestion that it was possible that saliva was present on the external vaginal swab, and on the two vaginal swabs. [ 105 ] It was suggested that it was possible that the DNA identified to the various vaginal swabs was deposited from saliva and not from spermatozoa. In response to this suggestion, Ms.

Carter testified: A With respect to the conclusions that I have read off today and the male components that I was talking about, it is my opinion that those profiles, those male profiles, they were found in the semen fraction. So it's my opinion that they were -- those profiles are from spermatozoa. Q It's your opinion, but is it possible that they were from skin cells from the saliva? A Not respect to those male components that I'm seeing, no, in my opinion. (July 24, 2017, p. 76, ll. 3-12) v.

The Accused [ 106 ] In direct examination, the accused testified that on the evening of December 20, 2013, he met up with a friend, “Alex”, at around 9 PM, at the Great Bear Pub located several blocks east of Metrotown on the north side of Kingsway. [ 107 ] Over several hours they both consumed a pitcher of beer. Each pitcher contained between five to six pints of beer. The accused described becoming intoxicated from the alcohol. The alcohol caused him to experience a “buzz” sensation. [ 108 ] Around midnight they both left the pub to go home.

At that time Alex lived in Vancouver, and the accused lived in New Westminster. A bus stop was located outside of the pub for people traveling westbound on Kingsway. At the time, the accused described the weather as cold, and there were several inches of snow on the ground. [ 109 ] While the accused was speaking to Alex at the bus stop, his attention was drawn to a screaming female (J.H.) running eastbound on the sidewalk on the south side of Kingsway. He was under the impression that she appeared to be running away from somebody.

As he was looking at J.H., she suddenly fell forward onto her hands and knees. [ 110 ] The accused described J.H. rolling onto her back where she remained for approximately one minute. Out of concern, he ran across the street to see if she was “okay.” Alex remained at the bus stop for his bus to arrive. [ 111 ] The accused asked J.H. if she was all right. She told him that “someone tried to rape her”. The accused looked around, but did not see anyone. He then put his hand out, which she grasped, and pulled her to her feet. He described J.H. as acting “normal” when she

got to her feet. [ 112 ] While he was familiar with the impact of alcohol on individual interactions, the accused was unable to say whether or not J.H. was intoxicated, due to his state of intoxication. He did not notice anything abnormal about her speech. [ 113 ] The accused asked J.H. where she was going. She told him she was going home. She was on her way to take transit at the Skytrain Edmonds station. The accused offered to walk with her to the station. He described that they were walking side-by-side, along the sidewalk when they came to a bus stop.

They stopped and J.H. informed the accused that she did not have any money for the bus so they just kept on walking towards the Edmonds station. [ 114 ] At the time, the accused had approximately $50 which was left over from the $150 that he spent at the pub. He agreed that $150 was quite a lot of money to be spent on drinks. He explained that he was buying people drinks at the pub. It did not appear to cross his mind at the time that he could have given some money to J.H. so she could catch a bus. [ 115 ] The accused described that they were walking normally.

J.H. never expressed any concerns that she needed help in any way. She did not say anything that would suggest she would have preferred that he not walk with her. [ 116 ] At one point, J.H. pulled out a cell phone and contacted somebody. During the course of that conversation, she was screaming into the phone saying words, “Basically along the lines, I have been raped. Where are you? Come get me”: (Transcript, July 26, 207, p. 17, ll. 12 -14).

The accused described J.H. as hysterical. [ 117 ] Though he described J.H. as hysterical, the accused was not concerned, as he assumed she had phoned the police because she said that she had been raped. While she was a total stranger to him, the accused said he had no reason to disbelieve her. [ 118 ] They continued to walk eastbound when she made a second cell phone call. The second call was made within seconds of the first call. The accused described the content of the second phone call as similar to the first phone call. J.H. was screaming and yelling and saying repeatedly, “I have been raped.

Where are you?” He again described J.H. as hysterical. [ 119 ] The accused did not recall having any conversation with J.H. respecting the two phone calls. He did recall that physically, while they continued to walk, J.H. was “kind of stumbling”, which he assumed may have been due to her being drunk or because of the snow. Her demeanour was otherwise normal. [ 120 ] The accused was asked about the impact of the snow and ice on the sidewalk. In response he testified: A It was on -- I honestly don't remember. I know there was snow.

I think it was like wet snow on the sidewalks or some solid snow, bits of solid snow. Q Was there any ice? A Possibly, yes. Q And was the ground slippery? A Somewhat. Not -- not... Q And in terms of this snow or ice, was this continuous all along the sidewalk or are there gaps where it's clear? A I don't remember. I -- yeah, I don't remember. Q Okay. And so you mentioned you said she was stumbling? A Yeah, a little bit, for like just for a second though. Like, I don't know... Q Did she fall at this point in time?

A When she was with me, she didn't -- she didn't fall. (Transcript, July 26, 2017, p. 22, ll. 7-25) [ 121 ] J.H. made a third phone call when they arrived at the corner of Kingsway and Gilley Street. Similar to the other phone calls, the content was the same. J.H. was yelling into the phone. The only difference was how the telephone call ended. Whoever was on the receiving end was told, “Fuck you then”, and she hung up. [ 122 ] At this point the accused testified that his opinion of J.H. changed. He no longer believed that she had been raped.

In his mind, it was obvious that she was not calling the police as no police officers had arrived. He was unaware that anyone was pursuing them: ibid . p. 25, ll. 41 -47. [ 123 ] It was also at the corner of the Kingsway and Gilley that the accused recalled asking J.H. to call a cab on her phone, as he did not have a cell phone. He told J.H. that he would pay for the cab to his residence and with whatever change he had left she could use it to get to her residence. [ 124 ] J.H. did not call for a cab. She told the accused that she was tired and needed to take a break.

At this point they were situated by the Chinese food restaurant parking lot at 6408 Kingsway. J.H. suggested they could wait in the parking lot for the cab. Again, the accused did not see J.H. call for a cab. Rather, he assumed, she would call for a cab after resting for a while.

[ 125 ] They entered the parking lot and travelled to the east side of the restaurant. At that point, rather than calling a cab, J.H. asked the accused for some cigarettes.

He did not have any cigarettes and offered to go to a gas station located on the north side of Kingsway to get some cigarettes. [ 126 ] The accused was optimistically thinking that, since J.H. would take a cab ride with him, if he also got her some cigarettes this would “increase the chances” that she would go to the accused’s home: ibid . p. 32, ll. 22 -25. [ 127 ] When the accused was asked that perhaps all J.H. really wanted was a cab ride home he responded: A Yeah, it's possible. I mean, I was on my way home anyway. It's always a fifty-fifty, right?

I was going to ask her in the cab whether or not she wanted to stay with me at my place. She could have said no, I would have just went home. She could have took the cab, go wherever she wanted to go. (Transcript, July 26, 2017, p. 32, ll. 44-47; p. 33, ll. 1-3) [ 128 ] The accused went to a gas station and tried to buy some cigarettes. The clerk refused to sell him any cigarettes, because all the accused had was a $50 bill, and the clerk told him he could not break a $50 bill. The clerk told the accused to leave the gas station. [ 129 ] The accused ran back to the restaurant.

He noted that J.H. was no longer standing to the east side of the restaurant. As he got closer to the east side of the restaurant, he could see that J.H. was standing behind the restaurant. [ 130 ] Up to this point, the accused agreed that he had only touched J.H. on one occasion and that was to help her up from the sidewalk, when he first saw her fall, after he left the pub. Other than hoping she might want to go home with him, there was no conversation respecting sexual advances between the two of them. [ 131 ] The accused walked up to J.H. and told her that he could not get any cigarettes for her.

She told the accused that was fine, and then lifted up her shirt to expose her breasts. The accused found her behaviour to be, “strange, weird, odd”: ibid . p. 41, ll. 6 - 9. [ 132 ] The accused suggested that they go to her place or to his place.

J.H. declined the suggestion stating that they do it “right there”: ibid . ll. 15 - 21. [ 133 ] The accused testified that it was obvious to him that J.H. wanted some sort of sexual contact and that he was up to it, notwithstanding that her conduct was “a little strange, weird or odd.” [ 134 ] The accused was asked whether J.H.’s emotional behaviour that evening, in asserting that she had been raped earlier and then proposing that the two of them have sex behind the restaurant, was strange. He responded: A At the time I didn't think anything of it. I was just -- I had -- I got caught in the moment.

THE COURT: You got caught up in the moment? A Yes. Yeah, I didn't really think anything of it. THE COURT: You've got to -- got to keep your voice up. I didn't hear -- A Sorry. I didn't really -- I didn't really think anything of it at the time. It just kind of just happened. (Transcript, July 26, 2017, p. 43, ll. 1-9) [ 135 ] The accused testified that he was open to following the lead of J.H. The fact that it was cold, and there was snow on the ground played no role in his thinking. [ 136 ] The accused testified that J.H. took off her jacket and placed it on the snow.

She then lay down with her back onto the jacket. Her breasts were still exposed. He followed her to the ground, began kissing her on her cheek, on her neck, and breasts, as he moved down toward her vaginal area. J.H. was responsive and she began “moaning.” [ 137 ] The accused did not ask J.H. if she was okay with him performing oral sex on her because the events were happening very fast.

The accused described that he was caught up “in the moment.” He interpreted J.H.’s lack of resistance to his advances to mean that she was okay with him performing oral sex on her. [ 138 ] The accused testified that he took J.H.’s pants off, but could not recall if he completely removed them. He described that her pants were far enough down that she was able to wrap her legs around his head and shoulders, as he performed oral sex on her. [ 139 ] After a short period of time, J.H. told the accused that she wanted him in her, which he interpreted as request for sexual intercourse.

In response, the accused testified that he asked J.H. if she was “clean”, as he did not want to have unprotected sex with her if she did not know whether she was clean or not: ibid . p. 48, ll. 2 -7. [ 140 ] The accused then began to digitally penetrate J.H. while he masturbated. After approximately one minute, he ejaculated “toward” J.H., but he did not see where his ejaculate landed. The accused believed that he was on his knees at the time, and that his hands were pretty close to each other : ibid . ll. 39 -47. [ 141 ] Shortly after he ejaculated, J.H. again requested that he perform sexual intercourse.

As he had just ejaculated, the accused told her, “No, I can’t.” J.H. responded by telling the accused to, “Fuck off” and to, “Leave her alone”: ibid . p. 49, ll. 42 -45. [ 142 ] The accused was under the impression that J.H. was disappointed by the turn of events. He then pulled up his pants and walked

away without saying another word to her.

He did not offer any assistance to J.H., because she had just told him to “fuck off and to leave her alone”. [ 143 ] The accused could not recall how he left the parking lot behind the restaurant, but eventually he made his way home. [ 144 ] In cross-examination, the accused testified that in December of 2013, he was between 5’6” to 5’8” tall, and weighed between 180 pounds to 200 pounds. [ 145 ] The accused denied having a problem with alcohol though he has taken some counselling and gone to Alcoholics Anonymous, but could not recall if that was before or after 2013. [ 146 ] The accused agreed that it was possible that when he was at the Great Bear Pub on December 20 th , 2013, he could have consumed more than five to six pints of beer throughout the evening.

He described being intoxicated, but not “like completely drunk, like blackout drunk”: ibid . p. 62, ll. 9 - 23. [ 147 ] The accused recalled that when he crossed Kingsway to assist J.H., he suggested to her that she should call the police after she told him that she had just been raped.

He could not recall her response, other than she accepted his assistance to get her back onto her feet and they started walking together. [ 148 ] Though the accused assumed J.H. had called the police during the first telephone call, he made no inquiries to confirm whether, in fact, she had called the police or whether they should stop and wait for the police to arrive. [ 149 ] The accused could not remember if he said anything to J.H. following her second telephone call.

He did express his doubts that her claim that she had been raped may have been a lie. [ 150 ] The accused had difficulty in remembering the conversation he had with J.H., as they walked eastbound along Kingsway. He recalled that it was his intention to try to get to know her better, though he was troubled that she may have been lying about having been raped. [ 151 ] As far as what the accused got to know about J.H., she told him that she lived in Coquitlam but he could not recall if she gave him her name.

He described his memory as being “fuzzy” about any details of what information was exchanged so they could get to know each other better: ibid . p. 84, ll. 7 - 43. [ 152 ] The accused could not remember if J.H. asked any personal questions about himself or whether or not he asked her if she had a boyfriend.

When they got to the intersection of Kingsway and Gilley Street, J.H. made her third telephone call which persuaded the accused that J.H. was lying when she said she had been raped that evening. [ 153 ] At this point, the accused testified that he wanted to go home so he asked J.H. to call a cab after her third telephone call. While wanting to go home, he also agreed that there was still a possibility, “50-50” that he might get lucky, and J.H. would agree to go to his home. [ 154 ] When it was suggested to the accused that he wanted to sleep with J.H., he responded, “I don’t know. Yeah.

Crossed my mind.” He agreed that his chances of sleeping with J.H. could improve when he offered to buy her cigarettes: ibid . p. 89, ll. 22 - 28. [ 155 ] The accused agreed that he did not specifically ask J.H. if she had called for a cab; rather, he assumed she had done so, though he was not really paying attention over whether she called a cab or not.

He did not think that J.H. had actually called for a cab at the time that they were standing at the east side of the restaurant located at 6408 Kingsway. [ 156 ] At this location and time, the accused agreed that he was actively working on getting J.H. to come home with him. The fact that he believed she had been lying about being raped was something that happened in the past, and he put that circumstance behind him: ibid . p. 91, ll. 6 - 13. [ 157 ] The accused testified that since J.H. had expressed some interest in taking a cab with him that was a cue that she may have wanted to go home with him.

When pressed during a series of questions concerning the expectations of the accused, he agreed with the suggestion that if J.H. agreed to go to his home that, if the “opportunity arose”, it was possible that sexual activity could take place: ibid . p. 98, ll. 8 - 33. [ 158 ] When he went to purchase the cigarettes, the accused described the clerk at the gas station as “standoffish”.

He could not recall what the clerk was thinking though it was the accused’s impression that he had problems in breaking a $50 bill. [ 159 ] When the accused was asked if he was told to leave the gas station he responded: A He possibly -- no, like -- honestly, he -- possible, it's possible. I just don't really remember that whole thing. I just remember him being standoffish a little bit and I asked him if he could break the 50. He said he couldn't break it. He didn't want to sell me smokes. And I was like, "Okay, whatever, fine." You know.

I just left. (Transcript, July 26, 2017, p. 93, ll. 16-23) [ 160 ] When the accused returned from gas station, he did not see J.H. in the parking lot; and he agreed that he was disappointed. However, he considered it was lucky for him when he located her behind the restaurant. [ 161 ] It was suggested to the accused that when he located J.H. behind the restaurant that he must have asked her what she was doing there? He recalled that he possibly asked her that question. He recalled telling her that he could not get her any cigarettes.

[ 162 ] The accused was again asked if he questioned J.H. concerning why she was behind the restaurant in the following exchange: Q At that point did you think she was there so that you could participate in sexual activity with her? A No. Q Did you ask her why she was there? A No. It didn't even cross my mind to ask. Q What did cross your mind at that point? A I just told her I couldn't get the cigarettes. I told her, "I can't get you cigarettes." Q Right. I didn't ask you what you told her. I asked what crossed your mind at that point. A Nothing, just the cigarettes.

That's the only thing -- that was the only thing that crossed my mind. That and the cab, whether it was coming or not. (Transcript, July 26, 2017, p. 99, ll. 37-47; p. 100, ll. 1-3) [ 163 ] The accused agreed that when he located J.H. behind the restaurant, and she lifted up her shirt to show her breasts, that there had been no prior sexual behaviour between the two of them. There had been no flirtatious behaviour. He did not even know her name at this point. When he was asked if he even cared who she was he responded, “Not at that point, once that happened, no.

I was - - I was in that the moment, said okay, fine…”: ibid . p. 101, ll. 22 - 24. [ 164 ] When she showed her breasts the accused expressed experiencing some shock, but he was otherwise thrilled with what had occurred. He had done nothing for J.H. and now had the good fortune of having her display her breasts. By displaying her breasts, he felt that she was sexually interested in him. [ 165 ] The accused agreed that he did not ask J.H. what sort of sexual interaction she was expecting. He also agreed that while she was a total stranger, it never crossed his mind to question what was happening.

He testified that everything was happening very fast, and reiterated that he got caught up in the moment: ibid . p. 104, ll. 4 - 14. [ 166 ] The accused testified that he did not care that it was cold and snowy. When asked if he was concerned that J.H. might get cold because she took off her jacket, he responded that everything was happening very fast and he was “caught up in the moment”: ibid . ll. 35 - 46. [ 167 ] The accused agreed that he made no inquiries of J.H. as to whether or not she was okay with this happening, as she had earlier alleged that she had been raped.

He simply followed her lead. [ 168 ] The accused agreed that it did not cross his mind that she may have been drinking that evening or that she may have been raped that evening. That being said, he expressed being concerned about J.H.’s welfare, but not concerned enough to ask her name: ibid . p. 106, ll. 12 - 26. [ 169 ] The accused agreed that he never asked J.H. if she was okay to have him perform oral sex upon her.

He felt that she gave off physical and verbal cues which amounted to consent. [ 170 ] The accused agreed that he asked J.H. if she was “clean” because he was concerned that she might have a sexually transmitted disease. It did not cross his mind to tell her that he was clean because he was caught up in the moment. [ 171 ] The accused testified that he was concerned as he did not have a condom. He agreed that there was no conversation between the two of them with respect to whether or not he had a condom. [ 172 ] The accused could not recall whether or not he asked J.H. if he could penetrate her digitally.

It was his assumption that she was consenting to digital penetration, as she had told him that she wanted him in her. As she did not specify whether she wanted digital penetration or penile penetration, he assumed that she was fine with digital penetration: ibid . p. 111, ll. 4 - 27. [ 173 ] The accused agreed that after J.H. told him that she wanted him in her, he pulled his pants down, leaving his underwear in place.

He agreed that at no time did his penis ever make any contact with J.H.’s body. [ 174 ] The accused agreed that with one hand he was digitally penetrating J.H., and with his other hand masturbating until ejaculation. [ 175 ] When he was asked if he had ejaculated on J.H., he responded: A It was towards her.

I couldn't say, I didn't see exactly, like, where it landed or where it went, but it was towards her. (Transcript, July 26, 2018, p. 113, ll. 28-30) [ 176 ] When he was asked how he thought his ejaculate ended up in J.H.’s vagina, he responded: A Could have got on my fingers or something, could have -- like, [indiscernible] put it in there, it could have been -- it could have been close enough towards -- it just went in there. Like, I don't know. I can't really say, but I'm like -- it was -- it -- I -- it went towards her.

Q What was towards her? A Like, I ejaculated towards her. Q But you can't even say whether or not you ejaculated on her genitalia, right? A Yeah. Q It was in her general direction, that's all you can say? A Yes. Q And those are my words, not -- you didn't say general direction. You said towards her. A Towards her. Q Did it -- but, I mean, if your hands are in her, your penis isn't right next to her vagina, is it? A No. Q Couldn't be. (Transcript, July 26, 2018, p. 114, ll. 3-23) [ 177 ] The accused described J.H. moaning throughout the sexual encounter.

After he ejaculated and told J.H. that he could not perform sexual intercourse, her passion turned to anger and disappointment at which time she told the accused to “fuck off” and to leave her alone. [ 178 ] When it was suggested to the accused that by making no inquiries whatsoever about why she was upset, or when explaining that he did not want to have unsafe sex without a condom, he demonstrated concern solely for himself, and not for J.H., he responded, “You could say that”: ibid . p. 117, l. 40. [ 179 ] The accused offered no assistance to J.H., and when he left she was lying on her back in the snow.

In the following exchange it was suggested his behaviour was uncaring: Q Uncaring. A Well, she told me to leave, so I left. Q But surely you must have been at least a little concerned for her safety? A She seemed to be able to handle herself. Q Did she? A Yes. Q How? A She was -- I was following her lead the whole time, so... Q You were following her lead the whole time. A During the whole interaction, yes. Q So she -- she orchestrated all of this? A Yeah. (Transcript, July 26, 2017, p. 118, ll. 30-43) E. POSITION OF THE PARTIES (

i) The Crown [ 180 ] The Crown relied on both written submissions and oral submissions. The Crown also provided the Court with a book of authorities, many of which formed part of their written and oral submissions. Where relevant, those authorities shall be discussed in my legal analysis. [ 181 ] The Crown’s submissions can be summarized as follows: • J.H. gave consistent, credible, and reliable evidence that she was choked and sexually assaulted by the accused on December 21, 2013; • The accused’s evidence that J.H. was an active, willing, and eager participant is not credible;

• J.H.’s account of what occurred is corroborated by, but not limited to, the 911 call, her emotional condition observed by police officers, and the expert evidence; • Based upon the totality of the evidence, the Court should only come to one of two conclusions, (1) she consented to the sexual encounter, or (2) she did not; • Courts have generally refused to allow the defence of honest but mistaken belief in consent in situations where an accused, as in this case, has based his defence of voluntary consent in which he testified that J.H. was an active, eager, and willing partner, whereas J.H. has vigorously denied that there was any consent whatsoever to do anything sexual with the accused; • Myth and stereotypes that have evolved from an idealized standard of conduct have no place in a rational and just system of law, as they jeopardize the Court’s truth finding function.

In particular, myths and stereotypes have no place in the determination of J.H.’s credibility; • The Court should have no difficulty in finding that the account of what happened, as described by J.H., was harmonious with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”; • The medical and scientific evidence clearly establishes that sexual activity took place between the accused and J.H. J.H. was emphatic that she was violently sexually assaulted.

She was emphatic that she did not consent to the violent sexual assault; • The accused’s account of what happened is utterly implausible and inconsistent with the evidence. The accused would have the Court believe that suddenly and inexplicably J.H. was so overcome with desire for the accused, who was a complete stranger that she had to “… engage in sexual relations with him. Right then and there. In the laneway. As she was lying in the snow”; • There was no plausible evidence advanced to explain how the accused’s DNA was found in J.H.’s vagina.

His explanation that he ejaculated “towards her” does not provide any plausible or possible explanation to account for his DNA being found both externally and internally in J.H.’s vaginal area; • While J.H. admitted that she exposed her breasts to the accused, such behaviour was at best ambiguous, and would not amount to an informed consent to engage in the type of sexual activity described by the accused; • The accused’s conduct of leaving J.H. partially naked in the snow behind the restaurant following the sexual encounter, demonstrates a callous disregard for her well-being.

His post offence conduct in this case is probative and admissible circumstantial evidence consistent with guilt; and; • J.H.’s evidence was “clear, consistent, coherent, and compelling and that did not change even after she was extensively and vigorously cross-examined.” (ii) The Accused [ 182 ] The accused relied upon oral submissions. The accused also provided the Court with several authorities in support of their submissions.

Where relevant, those authorities will be referenced in my legal analysis. [ 183 ] The submissions of the accused can be summarized as follows: • As the Court has been provided with two versions of events.

The credibility and ultimate reliability of the testimony of both the accused and J.H. are critical; • Some aspects of the versions coincide, while other aspects of the versions are diametrically opposed; • He admits that he was with J.H. behind the restaurant and that his DNA establishes that fact; • He challenges the reliability of J.H.’s memory of events on the evening in question and challenges her ability to recall events; • J.H. minimized or lied about her state of intoxication and the amount of alcohol she consumed with R.C. which impacts her credibility and reliability; • As result of her intoxication, or poor memory, she could not recall an incident with the security guard at the Metrotown Mall which resulted in R.C. and J.H being told to leave the mall; • She also had a poor recollection of businesses that she passed as she traveled eastbound on the sidewalk next to Kingsway; • R.C. testified that after he abandoned J.H. she called him, yelling at him to come back to her as she had been sexually assaulted.

This allegation was a fabrication and should reduce her credibility if the Court was to find that R.C. was credible and reliable on this point; • J.H. admitted that she did fall onto the sidewalk. The location of her fall would be consistent with the evidence of the accused that he was across from her with his friend outside of the Great Bear Pub. This fall could account for abrasions later observed by Dr.

Olson; • While J.H. testified she did not want the accused around her, she does not go to any businesses which may have been open to seek assistance, even though she did not have any money to get on a bus as it would be unlikely that she would be told to leave or to use her cell phone to call a family member, friends or even the police;

• J.H. could not recall the series of calls to R.C. between 12:07 AM and 12:25 AM on December 21, 2013. The accused testified these calls were made in quick succession. Each time J.H. was screaming at somebody telling them that she had been sexually assaulted. If the Court accepts that she made these calls with that content that would call into question her credibility and reliability as to what took place behind the restaurant; • When they got to the restaurant, J.H. went into the parking lot with the accused.

There is no evidence that she tried to leave his company; • There was nothing sinister in his efforts to try to buy some cigarettes for J.H.

Rather, it was an effort by the accused to get to know J.H better with the idea of perhaps establishing a bond; • Whether J.H. was led behind the restaurant or she voluntarily went behind the restaurant, there is no evidence that there were any threats or physical force directed at her by the accused; • While J.H. testified that the accused offered her money for oral sex, she was unable to provide any specifics of the offer, where it happened, and how much money was involved.

He denies any such conversation took place; • They agree that when they were behind the restaurant, J.H. lifted up her top to expose her breasts which is consistent with her consenting to some sort of sexual activity; • He provides detailed evidence that the sexual activity that took place between the two of them was orchestrated by J.H.

It did not involve the application of any force or threats of force by him; • While J.H. testified that the accused ejaculated in her vagina, it is equally possible in the accused’s version of events that he ejaculated onto his hand while digitally penetrating J.H., which resulted in his DNA being deposited in her vagina; • After J.H. told him to leave she began to experience a great deal of regret over what had taken place and, while she tried to figure out what happened, she invented the belief in her mind that she had been sexually assaulted; • J.H.’s level of intoxication was not to the extent that he needed to make any inquiry whether it was okay to engage in sexual activity; • J.H.’s testimony that she sustained injuries to her head, hands and knees behind the restaurant can equally be explained as occurring when she slipped and fell to the sidewalk across from the pub; • Dr.

Olson’s observation that there was approximately a quarter cup of blood in J.H.’s cervical cavity could plausibly be consistent with a reaction to “rougher sex”, particularly so if J.H. was not sufficiently lubricated; • J.H. was unable to provide any explanation why she called R.C. at 12:25 AM on December 21, 2013, and the police approximately eight minutes later; • It is possible that no sexual assault took place, and her near hysteria in her 911 call to the police could be explained as a way for her to get back at R.C. for ignoring her that night; and, • His evidence was not shaken in cross-examination. F.

LEGAL FRAMEWORK (

i) Sexual Assault [ 184 ] The accused has been charged with the offence of sexual assault.

Section 271 of the Code provides: 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 185 ] Consent in relation to the intention to commit a sexual assault is limited by both the common law and by the provisions of ss. 273.1(2) and 273.2, which provide: 273.1 (1) …

(2) No consent is obtained, for the purposes of sections 271 , 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to theactivity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. [186] Section 265(1)(

a) of the Code defines assault where there is an absence of consent: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; … [187] Sexual assault is only indirectly defined in the Code. The Supreme Court of Canada (the “SCC”) in R. v. Ewanchuk, [1999] 1SCR 300, at para. 24, ruled that the offence is comprised of an assault committed within a sexual context, such that the sexual integrityof the complainant is violated. [188] In R. v. Ewanchuk, ibid at para. 25, the Court defined the actus reus of sexual assault: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and(iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actionswere voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 and R. v.Chase, (SCC), [1987] 2 S.C.R. 293. [189] Sexual assault is a general intent offence.

The Crown is not required to prove that an accused had any mens rea with respect tothe sexual nature of his or her behaviour. Rather, the Crown needs only prove that the accused intended to touch the complainant in orderto satisfy the basic mens rea requirement: ibid. at para. 41. [190] For the purposes of determining the absence of consent as an element of the actus reus for sexual assault, the actual state ofmind of the complainant is determinative on this issue. It is the complainant’s perspective that is relevant.

The approach is purelysubjective: ibid. at para. 27. [191] A complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all of the evidence,including any ambiguous conduct. An accused’s perception of the complaint’s state of mind is not relevant unless an honest but mistakenbelief in consent is raised during the course of the mens rea stage: ibid. at para. 30. [192] It follows from the foregoing that the trier of fact may only come to one of two conclusions: the complainant either consented orshe did not. There is no third option: ibid. at para. 31 [193] The SCC in R. v.

Park, (SCC), [1995] 2 SCR 836, at para. 26, summarized when the defence of honest butmistaken belief in consent should be put to a jury: 26 To summarize, when the complainant and the accused give similar versions of the facts, and the only material contradiction is in theirinterpretation of what happened, then the defence of honest but mistaken belief in consent should generally be put to the jury, except incases where the accused's conduct demonstrates recklessness or wilful blindness to the absence of consent.

On the other hand, courtshave generally refused to put the defence of honest but mistaken belief in consent to the jury when the accused clearly bases his defenceon voluntary consent, and he also testifies that the complainant was an active, eager or willing partner, whereas the complainant testifiesthat she vigorously resisted. In such cases, the question is generally simply one of credibility, of consent or no consent. (ii) Enabling Sexual Assault [194] The accused has also been charged with grabbing J.H.’s throat and covering her mouth to enable sexual assault.

Section 246(a)of the Code provides: 246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (

a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle,attempts to render another person insensible, unconscious or incapable of resistance, or [195] The mens rea of this offence is the intention to render another person insensible, unconscious or incapable of resistance; but theintent to choke or strangle a person can be inferred from all of the accused’s actions. (iii) The 911 Call

[196] J.H. made her 911 call to the police shortly after her encounter with the accused. In her 911 call it would be fair to characterizeher state of mind as demonstrably agitated to the point of near hysteria. [197] What was said, her tone and phraseology, is relevant. The 911 call demonstrates her mental condition or state of mind at a timeconcurrent with her encounter with the accused: R. v.

Stapleton, 2003 BCCA 444, at para. 9 [198] In addition the 911 call can be used to (1), rebut a suggestion of recent fabrication and (2), to understand the state of mind of J.H.at the time she made the call: Ibid. at para. 10 [199] The 911 call cannot be utilized as confirmation of the truthfulness of J.H.’s testimonial evidence: Ibid. (iv) The W.(D.) Framework [200] The accused elected to testify in his own defence. Accordingly, the framework for assessing his evidence as set out by the SCCin R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, at para. 28, applies: 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. Atrial judge might well [page758] instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.

Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [201] To be added to the framework are the comments of Wood J.A. found in R. v. (C.W.), (BCCA), at p. 14: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [202] The principle in the SCC’s decision in W.(D.), supra is straightforward: the ultimate issue in any criminal case is not who thejudge believes, but whether in light of all of the evidence a reasonable doubt persists: R. v.

D.S.l.C. 2004 NSCA 135, at para. 19. [203] As much of this case is dependent on the testimony of J.H., her credibility and reliability should be considered in light of all theother evidence. The emphasis is on reliability: R. v. Barwich, 2001 BCSC 1623, at para. 10. [204] Credibility and reliability are different. The difference has been succinctly explained in R. v. Khan, 2015 BCCA 320, at para. 44: 44. Credibility and reliability are not the same. In R. v. Perrone, 2014 MBCA 74 at para. 26, appeal dismissed 2015 SCC 8, the Courtreferred to the description of the difference in R. v.

H.C., 2009 ONCA 56 at para. 41. Credibility concerns the veracity of a witness;reliability involves the accuracy of the witness's testimony. Accuracy engages consideration of the ability of the witness to observe,recall and recount. G. DISCUSSION AND ANALYSIS (

i) Discussion [205] J.H. testified that the accused grabbed her behind the restaurant, threw her to the ground and sexually assaulted her by attemptedanal penile penetration and complete vaginal penile penetration to the point of ejaculation. Following the sexual assault, the accusedimmediately left the area leaving J.H. on the ground. His DNA was found deposited on her genitalia both externally and internally. [206] The accused testified that the sexual encounter was orchestrated by J.H. and that she was an active, eager and willing participantin the encounter.

He opines that his DNA got onto her and into her vagina when he ejaculated “towards her” while he was masturbatingand performing oral sex on her. He testified that he left J.H. behind the restaurant on the ground because she was disappointed that hewas unable to perform penile penetration so told him to “fuck off” and to leave her alone. [207] Prior to the sexual encounter, the accused and J.H. were complete strangers to each other. At the time of the sexual encounter,neither of them knew the other’s name.

In fact, the accused testified he did not care what J.H.’s name was after she had lifted her top todisplay her breasts as he was “in that moment”. [208] It was a winter evening. There was both snow and ice on the ground. Photographs of the area behind the restaurant where thesexual encounter took place depict a dark and relatively narrow passageway. Also, where the sexual encounter took place, there was alayer of slush, snow and water on top of the asphalt.

There are feet impressions around the area where the sexual encounter took place. [209] It is with this context in mind that the stories advanced by the accused and J.H. are examined to determine if they are consistentwith the probabilities that surround the conditions existing at the time of the sexual encounter. That examination must also take intoaccount all of the other evidence tendered prior to and after the sexual encounter. (ii) Analysis

(

a) J.H.’s State of Mind [ 210 ] Overall, I found that J.H. gave her evidence both in direct examination and cross-examination in a straightforward, coherent and thoughtful manner. I did not find that she embellished or exaggerated her evidence. [ 211 ] J.H. admitted she had consumed alc

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