R. v. F.Q., 2023 BCPC 279

Citation: R. v. F.Q. 2023 BCPC 279 Date: 20230207 File No: 243375-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. F.Q. BAN ON PUBLICATION PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: B.A. Lane Counsel for the Accused: C. St. Germain Place of Hearing: Surrey , B.C.

Dates of Hearing: April 19, August 24, 25, 2022; January 9, 10, 12, 2023 Date of Judgment: February 7, 2023 Background [ 1 ] The accused, F.Q., is charged that on May 22, 2019 he sexually assaulted R.W. contrary to s. 271 of the Criminal Code . R.W. and one police officer, Cst. Rai, were the only Crown witnesses. The accused testified in his defence, and called his wife, V.Q. The identity of the accused was admitted. [ 2 ] R.W., who will also be referred to as the complainant, testified that she was sexually assaulted by the accused on May 22, 2019 between the hours of 10 to 11 p.m. at her friend O.’s apartment.

The accused testified that he had consensual sexual intercourse with R.W. on May 22, 2019 between 4 and 5 p.m. at O.’s apartment and that between 10 and 11 p.m. he was at home with his wife and children. V.Q. testified that the accused was at home with her and their children between 10 and 11 p.m., and he could not have left their home without her knowledge. [ 3 ] It is common ground that the only live issue in this case is whether the Crown has proved the absence of consent to the standard of proof beyond a reasonable doubt. The accused has not pursued a defence of honest but mistaken belief in consent.

His position is that R.W. consented to the sexual activity that occurred between them. In the unusual circumstances of this case, the time of day that the alleged sexual assault occurred is an integral aspect of the assessment of the credibility and reliability of the witnesses, and whether on the totality of evidence the Crown has proved the offence beyond a reasonable doubt.

Although defence evidence was called, the burden of proof never shifts to the accused. [ 4 ] On application by the accused pursuant to s.276 and s.278 Criminal Code , made after the commencement of the cross- examination of R.W., I ruled that certain records, screenshots of Snapchat messages between the accused and the complainant, and screen shots of text messages between the complainant and her friend N., were admissible and could be adduced by the accused at trial for the limited purposes sought. [ 5 ] These records, that include prior consistent statements of the complainant, were not led by the Crown but were put to the complainant in cross-examination to impugn her credibility.

The text messages were marked as Exhibit 2 and the Snapchat messages were marked as Exhibit 3. As will be discussed below, the accused takes the position that these records were tampered with or concocted by the complainant to deceive, and support a contention that the complainant had a motive to lie, that being to not upset her relationship with O.

The Crown takes a contrary position that from the records, in particular the text messages between R.W. and N., and the time stamps associated with the messages, the court can draw the inference that the accused was in fact with R.W. between 10 to 11 p.m. at O.’s apartment, and as such the accused is not a credible or reliable witness and puts the lie to his evidence that he was at home with his wife and children at that time. Crown Evidence Evidence of R.W. [ 6 ] R.W. testified that she is 29 years old.

On May 22, 2019, she was employed for [omitted for publication], Abbotsford, and lived in an apartment above her work place. During the day her friend O., referred to as O., contacted her and asked if she wanted to get together with him, and he offered to pick her up. He advised that he was with a friend and his friend was driving. At approximately 6:30 or 7:00 p.m. she was picked up by O. and his friend. She recognized O.’s friend as someone she had known from 10 years before, that being the accused. She and the accused had mutual friends that got together on a regular basis.

They drove into Surrey to pick up O.’s vehicle. There was only small talk on the drive. Some of the conversation between O. and the accused was in another language that she did not understand. It took about 45 minutes to get to O.’s vehicle. [ 7 ] She then drove with O. in his vehicle to O.’s apartment; he lives on the second floor of a three-floor building. It took about 15-20 minutes to get there. They arrived at O.’s around 8:00 p.m. At O.’s house, they just hung out. It is a two bedroom apartment with an ensuite in the master bedroom and another full bathroom near the front door as you enter the apartment.

The second bedroom is for O.’s daughter but she was not home. It was only the two of them until the accused arrived around 9:30 or 10:00 p.m. Five to ten minutes after the accused arrived O. left. He told her that he had to go do something but did not say what. She told him that she wanted to be on the way home by 11:00 p.m. [ 8 ] After O. left, she and the accused went onto the balcony. She had a cigarette and smoked a joint. The accused maybe only had a puff or two. She thinks she smoked half of it. He mentioned that he had been drinking. They went inside.

They both sat on the couch, with the accused to her left. The accused was on his phone and he mentioned a girl on Tinder. He put his phone down and started rubbing her left leg, and asking how she has been. There was only a small space between them. To paraphrase, he asked if they were going to do anything and it’s been so long, ten years since they had seen each other and that she owed it to him. In response, she laughed at first and told him that she did not want to have sex in O.’s house, she did not want to do it on the couch or in his bed, that it would be disrespectful.

He responded that O. would not know and that he would not tell him. She said it did not matter, as she would know. The accused responded with, “come on, it’s been so long”. She does not remember the full extent of the conversation. [ 9 ] Then the accused stood up and started pulling her by her right arm towards the bedroom. She kept saying no, and by the fourth or fifth pull she started to slide off of the couch so she stood up. He continued to pull her. She grabbed her glass of water off the coffee table and she pulled away from him and went into the kitchen.

The accused persisted grabbing her arm again and pulled her into the bedroom. She told him that she did not want to do this. O.’s bed was very big, and she was pushed against it. Her feet remained on the ground but her upper body landed on the bed. She stubbed her toe on a side table when he did that. She was on her back and the accused was to her left. His left side was partially on her body, and with his left hand, he moved up her shirt and caressed her breasts.

She kept telling him that she did not want to do this, it was disrespectful, and she did not want to do that in O.’s bed. [ 10 ] He then moved his hand down into her pants. She was wearing leggings called jeggings, or jean leggings that are very tight. He

put his hands into her pants and his fingers inside of her. She pulled his arm and told him she did not want his hands in her pants, that it was uncomfortable. She could feel the veins in his arms from resisting her efforts to pull his arm away. He told her to take her pants off because they were too tight and restricting. She did not take her pants off. She pulled at his arm for a few minutes and then his phone rang in the living room. He moved his body and she was able to slide out from under him. On her top, she was wearing a white t-shirt and sports bra.

She does not recall what the accused was wearing. [ 11 ] She then went to the living room, she picked up her phone from the table and sat back on the couch where she was previously sitting and texted her best friend at the time and told her what had happened. The accused came out of the bedroom and made a quick call. The conversation was not in English. He then sat down in the same spot on the couch where he sat before. The accused was being a bit more forceful saying that they should have sex. She reiterated that she did not want to do that to O.

He said that O. would not know and he will text before returning home. The accused suggested that they do it on the couch, but she said no, she did not want to do it at all. [ 12 ] The accused got up and started pulling her arm again. She was pulled up but veered towards the kitchen. She filled a glass with water at the kitchen sink and drank some, trying to waste time hoping that O. would return. The accused approached her and touched her body, caressing her breasts, and butt and said she looked really good. She did not touch him back. He did not kiss her. He pulled her back towards the bedroom.

She continued to tell him that O. will be home soon, and he said that O. could not get in because he left his keys. [ 13 ] In the bedroom, the accused closed the door. He grabbed her by the hair at the back of her head and pushed her face down onto the middle of the bed, not by the headboard this time. He held her down with her right arm behind her back. His left arm was holding her head down. She noticed a condom near her head. She did not see how it got there. He asked her to grab it. She used her left hand to try to throw it away hoping that he would have to move to get it so she could get away.

She threw it over her left shoulder but it did not go far. It landed beside him on the ground. He moved his left hand that was holding her head down, and switched with his right hand, which was holding her arm behind her back, thereby freeing his right hand to retrieve the condom. He bent down and grabbed the condom and pulled her pants down at the same time. She was stuck in that spot on the bed. Her pants were pulled down to below her knees. He then put the condom on with one hand, but she did not see him do it. She saw the wrapper back on the bed. [ 14 ] The accused then inserted his penis into her vagina.

It hurt as she was very dry, she could feel the condom friction. He had her in that position for a couple of minutes and then asked her to lift her leg up but she did not. He then started to do it for her and as he lifted her leg onto the bed, her right leg first, he pulled her pants off completely. She had rolled on her right side first. She ended up on her back fully on the bed, with her head towards the headboard. The accused got on top of her, all his body weight on her, and re-inserted his penis into her vagina. He did not say anything at the time, but made light moaning sounds. She just lay there.

It was not very long, maybe 5 to 10 minutes she lay there staring at O.’s headboard that had little diamonds in it, and then she started to cry. The accused lifted his body weight to look at her and asked what was wrong. As soon as he sat up, she got out from underneath him, grabbed her pants and phone, and ran into the far bathroom by the front door. [ 15 ] Once inside the bathroom the complainant locked the door, sat on the toilet and was crying. She called her sister and told her that she needed to be picked up. She was in the bathroom for at most five minutes.

During this time she also texted her friend N. who she had texted with earlier. N. said she was in Surrey but it would take her a few minutes to get to her. When she left the bathroom, she went to grab her purse from the kitchen and saw the accused coming out of the bedroom. She said she was going and left the apartment. She went to the elevator. The accused came to the elevator and asked why she was leaving, she told him he knew why and she took the elevator to ground level.

The accused did not follow her. [ 16 ] Once out of the elevator she ran towards the front of the building, onto the street, and to the corner. She stayed behind a tree at the end of the street and waited for her sister. She believes her sister picked her up after 11 p.m., as it was quite late out. She did not see O. again that night but he messaged her the next day. She cannot recall the entire conversation but he, in essence, accused her of being a slut and sleeping with his friend. She tried to tell him what happened but he did not believe her.

He told her that she was lying. [ 17 ] O. contacted her again after she went to the police, asking to hang out and saying this is a misunderstanding. She told him that she did not want anything to do with him. She stopped answering his calls and he stopped calling. She reported the incident to the police the next day or two. She originally called the Abbotsford police and was told that she had to go through the Surrey police because the incident happened in Surrey. She gave a statement to the Surrey police on May 29, 2019. She has given four statements in total all to Cst.

Rai. [ 18 ] The day after the incident, she had a Snapchat conversation with the accused and took screenshots of the chat. She cannot recall how it started but she asked him why he was messaging her. She submitted the screenshots to the police. She had exchanged Snapchat contacts with the accused the night before. [ 19 ] In cross-examination, R.W. testified that N. was her best friend at the time of the incident but no longer. Her typical shift at the [omitted for publication] was 6:30 a.m. to 3:00 p.m., Monday to Friday.

There was some conversation between her and the accused during the drive to pick up O.’s vehicle but only small talk, not detailed, friendly not hostile. [ 20 ] While at O.’s apartment at some point, O. said he had to leave but did not say where he was going. She told him that she had to be home by 11 p.m. and he said he would take her home by then. She disagreed with the suggestion that she discussed with O. that her sister was going to pick her up. O. told her to wait until he got home. She disagreed with the suggestion that she asked O. to call the accused so she could catch up with him.

She did not think she would have to see the accused after the drive to pick up O.’s vehicle. O. spoke with the accused on the phone in their own language and O. advised that the accused was coming over. The accused arrived a short time later. [ 21 ] While on the couch the conversation between her and the accused was not unfriendly, she was just passing the time with small talk. She disagreed with the suggestion that they were flirting with each other. She disagreed with the suggestion that she found him attractive and considered having sex with him.

Her statement to the police from May 29, 2019 was put to her, and she agreed she told the officer that she considered having sex with the accused. In response, she testified that she only considered it for a few seconds and then

thought no. She does not honestly remember what she was thinking at that specific time. She was not attracted to the accused. She disagreed with the suggestion that she told her sister that the incident was consensual at first. [ 22 ] R.W. disagreed with the suggestion that she wanted to have sex with the accused to find out what she was missing but did not want O. to find out.

She told him that it would be disrespectful to O. to do it in his house. [ 23 ] It was suggested to her that in her direct evidence she testified that while on the couch she was sitting with her right foot under her and her left foot hanging down. She disagreed saying it was the opposite. The transcript of her direct evidence from April 19, 2022 was put to her confirming her direct evidence on this point was as suggested.

She responded that she was trying to remember but cannot say which foot was under her at the time. [ 24 ] The accused pulled her up by the arm from the couch trying to get her to the bedroom but she resisted and moved into the kitchen sink area. The accused came with her into the kitchen. She disagreed with the suggestion that the accused was not pulling her arm.

She agreed that in her statement of May 29, 2019 she stated that on the way to the kitchen she pulled away from the accused or he released her arm. [ 25 ] R.W. disagreed with the suggestion that if she did not want to go to the bedroom she would not have gone into the bedroom. The accused pulled her into the bedroom. She did not go in willingly. In the bedroom while he was touching her, a phone rang. This distracted the accused and she was able to slip away from him and leave the bedroom.

She assumed it was the accused’s phone that rang since she did not have any missed calls and the accused then made a call on his phone. He was on the phone for two to three minutes and he spoke another language. When asked if certain, she was certain that he spoke on the phone but not the language spoken. She agreed that in her statement to the police of May 29, 2019, she advised that she did not remember why the accused took his hand out of her pants and left the room, and there was no mention of a phone ringing.

Her memory now is that a phone rang but she is not certain that the accused spoke on the phone. [ 26 ] R.W. does not recall speaking to Cst. Rai on the phone on May 24, 2019. Counsel provided a copy of Cst. Rai’s notes to her and she agreed she said those things to him. At line 28, the note reads that she tried to get out of the bedroom but he closed the door. She is unable to recall that detail at this time. [ 27 ] Regarding her direct evidence that she was pushed on the bed and the accused held her right arm behind her back, she cannot recall which of her arms was held behind her back.

She agreed that she did not include this element of the assault in her statement of May 29, 2019 to the police. She also agreed that in that statement she said she used her hand to hold her pants up. Today she does not fully remember the details since it happened so fast. [ 28 ] She also agreed that she did not include in her statements to the police that the accused lifted her right leg onto the bed. [ 29 ] In her direct evidence, R.W. explained how she was rolled onto her back but she agreed that in her statement to the police of May 29, 2019, she advised she could not remember how she ended up on her back.

She agreed that in a statement to the police she said she was flipped onto her back. Today she does not recall if the accused did that, she told the police what she was able to remember, and that she could have been incorrect in that part. [ 30 ] R.W. agreed that in her direct evidence she stated that the accused had asked her to lift her leg onto the bed but she does not recall now if he did ask her. She does not remember how her leg got onto the bed. [ 31 ] She agreed that she did not say no to the accused’s request for her to grab the condom but she tried to throw it away from him so she could get away.

Regarding him switching hands to hold her with, she cannot recall which of his hands he used. She was unable to move with him pressing against her. She disagreed that she wanted to have sex with him. She is not sure which hand he used to pull down her pants, it all happened very fast. [ 32 ] She disagreed with the suggestion that the sexual activity occurred between 4 to 5 p.m. and not 10:00 to 11:00 p.m.

It could not have been that early since she was at home and just finished work. [ 33 ] She disagreed with the suggestions that she did not text N. while at O.’s but much later, and that the text messages were created to deceive and support her false allegations. [ 34 ] R.W. agreed that after the second incident she called her sister and then texted N. She does not recall the exact time.

She agreed that by reference to the time stamps on the text messages with N., marked as Exhibit 2, she sent a text to N. at 10:52 p.m. that references the first incident and then another at 11:03 p.m. referencing the second incident. [ 35 ] R.W. agreed that her text to N. at 10:52 p.m. included an allegation that her hair had been pulled but she did not include that in her direct evidence, and now she does not recall if that occurred. She has forgotten some details.

She agreed that her evidence is that the entire second incident starting from the couch and ending in the guest bathroom occurred between 10:52 and 11:03 p.m. She disagreed with the suggestion that the second incident as she described it could not have occurred in such a short period of time. [ 36 ] R.W. agreed that in her statement to the police of June 25, 2020, she advised that O. had followed her out of the apartment after the incident, however in her first statement to the police, she advised that O. had yet to return home.

She recalls that it was the accused who followed her out but she is not sure now. [ 37 ] She disagreed with the suggestion that O. called her and confronted her about the incident right after she left the apartment. It was at least a couple of days before she spoke on the phone with O. but there might have been texts exchanged prior. She agreed that O. accused her of sexual activity with the accused and both were upset with each other. [ 38 ] The next day the accused sent her a message by Snapchat and she took screenshots of the conversation. The accused sent the first message, not her.

By reference to the conversation, marked as Exhibit 3, it appears that some of the conversation occurred at 5:08 p.m.

and a screenshot was taken at that time, and that would have been the afternoon. She disagreed with the suggestion that this Snapchat conversation with the accused occurred right after the incident; it did not happen that day. [ 39 ] She disagreed with the suggestion that she made up the allegation of sexual assault in an effort to not upset O. [ 40 ] In re-examination, R.W. testified that to the best of her recollection the Snapchat conversation with the accused occurred the day after the incident.

In her first statement to the police, she did state that the accused pulled her into the bedroom and closed the door. In the same statement, she also made reference to a phone ringing and she thought it was the accused’s phone. In her third statement of June 25, 2020, she stated that on the bed the accused had her hands behind her around her lower back. With reference to Exhibit 4, she had calls with her sister at 9:58 p.m. outgoing, 10:02 p.m. incoming and 11:04 p.m. outgoing, on May 22, 2019. Evidence of Cst. Rai [ 41 ] Cst. Rai testified that he was the investigating officer.

He received a report from dispatch on May 23 and followed up with the complainant on May 24 at 1:00 a.m. This conversation was not recorded but he obtained some preliminary details and made some notes. He took four recorded statements from the complainant and received screenshots of text messages from her. [ 42 ] The first statement was on May 29, 2019. The second statement was on December 15, 2019 and the focus of that one was finding out how to contact the accused and to inquire about the Snapchat screenshots.

The June 25, 2020 statement was focused on her response to the allegations of the accused from his statement. The fourth statement, from September 29, 2020, was to discuss a prior allegation. He obtained a recorded statement from the accused on June 23, 2020; he obtained his telephone number from O. [ 43 ] In cross-examination, Cst. Rai testified that he made typed notes during his initial conversation with the R.W. on May 24, 2019. The notes are not verbatim but he tried to be accurate. Cst. Rai noted that R.W. told him that, “I tried to get out of the bedroom, he got in front and closed the door”.

She provided O.’s address and telephone number. She did not provide the accused’s last name or any contact information for him. He hoped to obtain that contact information from O. He did make attempts to contact O. but did not document those initial attempts. His first documented attempts were on June 17, 2020, and June 18, 2020. O. contacted him on June 18, 2020 and so did the accused who agreed to attend for a statement. He agreed that he did obtain the accused’s phone number from the complainant on December 15, 2019. [ 44 ] In the statement obtained from the accused, the accused told Cst.

Rai that there was consensual sexual activity between him and the complainant on the day alleged but it was in the afternoon around 4:00 to 5:00 p.m. Cst. Rai did not obtain a statement from the complainant’s sister, K., until September 30, 2020. Defence Evidence Evidence of the accused F.Q. [ 45 ] The accused testified that he is 35 years old and lives in Surrey with his wife and two children, ages 8 and 12. In May 2019, he resided on [omitted for publication] Street in the basement suite of a residence. His wife’s family lived on the upper floor of the house.

By reference to a Google Map, the [omitted for publication] Street residence is 6.9 kilometres from O.’s residence, with a driving time of 10 to 16 minutes. [ 46 ] The accused met the complainant in 2007 or 2008 when he was in his twenties. They were just friends at the time. They went their separate ways and did not have any contact until by chance through O. on May 22, 2019. At that time he was employed fulltime but on vacation. He had plans to travel to Alberta the following night. He was on a break from his wife although they continued to live in the same residence.

He usually slept on the couch. [ 47 ] On May 22, 2019, the accused drove his oldest child to school for 8:30 a.m. and returned home. His friend O. texted him and asked if he was free and could give him a ride. He agreed and picked up O. and drove him to Langley and then to Abbotsford. On the ride to Abbotsford, he learned that they were going to pick up O.’s friend, R.W. This led to him learning that O.’s friend was the complainant. They arrived at around 12 p.m. and picked her up. He then drove them to O.’s house in Surrey. On route, there was friendly conversation and laughter.

He dropped them off at around 2:00 p.m. and he returned home. At home, he had lunch with his friend, A., who had come by. He left the house to pick up his daughter from school. He returned home by 3:30 p.m. [ 48 ] At home, the accused received a text from O. inviting him over to his house. He arrived at O.’s before 4:00 p.m. After about 10 minutes, O. said he needed to go somewhere. He mentioned something about groceries. He was left alone with the complainant in the apartment.

There was no discussion about keys to the apartment and the accused did not have the keys. [ 49 ] The accused smoked some marihuana on the balcony; he only had two or three puffs. They returned to the living room and sat on the couch. He did not consume any alcohol that day, as he does not drink and drive. They conversed about their lives. He said that they never had sex and she said she knew that. He told her that he wanted to have sex with her and she said sure, but she was concerned about O., and said she did not want him to know that they had sex. He agreed not to tell O.

The accused did not know when O. was coming home so he texted him, and O. responded that he was coming home soon. He told the complainant that O. would let them know when he was returning. [ 50 ] They were happy and laughing. His hand was on her lap but they were not kissing. She agreed to go into the bedroom with him. It was his suggestion in case O. returned they would have time to get dressed out of view. Once in the room they kissed. He looked for a condom and found one in the nightstand drawer next to the bed. When he turned back the complainant’s pants were down and off her body, her top was still on.

He took his pants off and put the condom on. The complainant laid down with her back on the bed. He was standing and one of her legs was on top of his shoulder. They had sex in this position for a few minutes, the complainant then moved all of her body on the bed and he moved on top of her resuming intercourse. The complainant was participating, she had her hands around his back, they were kissing, she was moaning, making “sex noises”, and they had sex for a while, less than 10 minutes.

They heard a noise and stopped, they thought it could be O., but it must have been a neighbour; they both laughed, and continued until he ejaculated.

He got up and went to the washroom, and the complainant did the same after. They both got dressed and returned to the living room. [ 51 ] The accused messaged O. again to inquire where he was and O. advised he would be there soon. The accused also messaged O. that he had sex with complainant but the complainant asked him not to tell. O. responded with Lol – laugh out loud, and a happy face emoji. He does not know why he told O. that they he had sex with the complainant. [ 52 ] The accused and the complainant exchanged Snapchat contact information.

The complainant said that O. was taking too long and she had to go. He offered to give her a ride but she said no, her sister was going to pick her up. The accused did not want to drive right away since he had smoked. [ 53 ] The accused walked with the complainant to the elevator, they hugged and she left in a good mood, they were laughing. She left the apartment around 4 p.m., or sometime between 4:00 and 5:00 p.m. He returned to the living room to wait for O. While waiting he received a Snapchat message from the complainant saying, “what the fuck did you tell O., that we had sex, I told you that I liked him”.

He told her to hold on, he would talk to O. The accused was shown the series of Snapchat messages marked as Exhibit 3. The accused testified that the messages are not complete and they are out of order. [ 54 ] The complainant’s message asking, “what the fuck did you tell O.” is not included. The messages have been tampered with. He started screenshotting the messages and she is able to see that he did so, so she started doing so. She asked why, and he told her because she was accusing him of something he did not do. All of those messages are not included.

Their messaging was between 5:30 and 6:00 p.m., and ended when he blocked her. Then her friend N. messaged him and he blocked her too. He then left O.’s house and went home. He arrived home before 6:00 p.m. At home, he played with the children and after they all went to Penzer Park in Langley. By reference to a Google Map, the accused’s residence is 14.5 kilometres from Penzer Park, with an estimated time to drive of 18-30 minutes. [ 55 ] The accused was shown some videos taken by his wife from the day of the alleged offence. There is a video of his youngest child and A. in their backyard.

This was taken when he met up with A. for lunch. The next two videos are from the park later in the day around 9:00 p.m. On the drive home from the park, the children fell asleep in the car. Once at home he and his wife carried the children inside and got them ready for bed. They got home around 10:00 p.m. It was dark outside. Later, he did his laundry to get ready for his trip the next day. [ 56 ] In cross-examination, the accused testified that he deleted the screenshots of the Snapchat messages with the complainant when he changed phones. He changes phones every year and wipes the old ones clean.

He did not make any effort to preserve the screenshots since he did not think he needed them anymore. He disagreed with the suggestion that he deleted them because they were incriminating, and he did not delete them until one year after. He thinks there are helpful to him since he did not do anything wrong. [ 57 ] The break with his wife was due to a misunderstanding and was from April to June or July. It is just an estimate. He agreed that he was free to have sexual relationships with other women in this time frame. [ 58 ] The accused agreed that O. could have returned to the apartment at any time.

He disagreed with the suggestion that O. left the apartment keys behind. [ 59 ] After returning from the park, he and his wife woke up the children, gave them a bath, and put them to bed. He laid down with his daughter until she fell asleep. This took about one and a half hours. He then went to do some laundry for his trip. He slept on the couch that night and did not go out. His wife helped him with the laundry, as she is the one who usually does it. [ 60 ] The accused does not smoke marihuana often, when he does he feels safe to drive after eight hours.

Before smoking, he makes sure he does not have to drive anywhere. It was put to him that his evidence is that he smoked around 4:00 p.m. and left O.’s residence at 5:30 p.m. so he did not wait eight hours. He responded that he only had two to three tokes and was not high. He disagreed with the suggestion that he went back to O.’s residence at 10 p.m. [ 61 ] The accused would not have told O. about having sex with the complainant if he thought it would upset him. O. had a girlfriend. [ 62 ] He was at Penzer Park by 9 p.m., it was maybe 10:00 p.m. when they left, as it was getting darker out.

They got home maybe at 10:00 or after 10:00 p.m. He agreed that it could have been 9:45 p.m. [ 63 ] It was his suggestion to go to the bedroom to have sex since the complainant did not want to do it in the living room, and having O. possibly walking in on them. [ 64 ] The accused told his wife about the allegations after the police came to his house, maybe February 2020. They gave him some papers with the court date. He did not tell her the whole story until he did a criminal record check and the sexual assault charge was on there. He gave her the basic details and said the sex was consensual.

He believes this was in 2020. O. told him the police were looking for him, and in response, he contacted the police and went in to give a statement. O. might have told him this in 2019 and the police visited his house in February 2020. [ 65 ] His first language is English, and he speaks English with O. They do not share any other language. He is from Liberia and O. is from Nigeria. [ 66 ] He left O.’s residence at 5:30 p.m. before O. returned. He left the door unlocked. The complainant left before 5:00 p.m.

He disagreed with the suggestion that he looked at the time of the Snapchat screenshot of “5:08” p.m. and made up times to align with the messages. He believes that if O. had not mentioned to the complainant that he knew of the sex there would not have been any problem. Evidence of V.Q. [ 67 ] V.Q. testified that she has been married to the accused for 10 years and they have two children together. From April to June 2019 they were separated but living at the same residence. She usually slept in the bedroom and he slept on the couch or slept with one of the

children. She learned of the sex assault allegation in February 2021 when the police showed up at their residence to speak to the accused. A few days later she saw the accused’s criminal record check that indicated a sexual assault charge. The accused told her that he had consensual sex with a woman when they were separated but he did not go into the details. The accused gave her the date of the incident and she searched her phone for data from the day. She found some videos. [ 68 ] The first video depicts their son and friend A. in the backyard of their house, and the accused’s arm crosses into the screen.

This is from 2:15 p.m. She took the video and it accords with her memory of the date and time. [ 69 ] The next two videos are from later that day at Penzer Park in Langley with the accused and the children. The time indicated is 9:13 and 9:14 p.m. [ 70 ] The videos helped refresh her memory from May 22, 2019. The accused was on vacation from work, and he took their daughter to school that day. The accused went to meet O. during the day and returned home around 2:00 p.m. Before that, A. came over with some food. The accused left their home at 2:30 p.m. to pick up their daughter from school.

It takes 30 minutes to get there. He returned home but left again saying he was going to meet O. They had plans to go to the park and he was leaving the next day to go to Edmonton. He returned home around 7:00 p.m. They left for the park and arrived there around 8 p.m. They stayed at the park until around 9:30 p.m. [ 71 ] On the drive home, the children fell asleep in the car. It was dark out when they got home. They took the children inside, got them cleaned up and changed. They each took one child to bed, and laid with them until the children fell asleep. The children sleep in separate bedrooms.

After, she recalls hearing the accused in the laundry room. The noise annoyed her, as she did not want the children to wake up. The accused came into their son’s room and asked her if he had the right detergent. This was around 10:30 p.m. She laid with her son and cannot recall if she fell asleep there.

She does not recall the accused leaving the house after, it would be abnormal for him to leave at night, and it is very hard to leave without her noticing since the front door makes a loud suction noise when opened and shakes the wall. [ 72 ] In cross-examination, V.Q. testified that she does not know the complainant and the accused had never mentioned her. The accused returned at 7:00 p.m. and after the park, they were home by around 10:00 p.m. Their son was not in school at that time but their daughter was in a special school program with gymnastics for half a day and regular school the other half.

She usually gets up at 7:00 a.m. After returning home, they changed the children for bed, brushed their teeth, and put them to bed. She could not recall anything else about preparing the children for bed. [ 73 ] She does not have a specific memory of falling sleep and does not recall if she woke up in their son’s room. She does not recall where in the house the accused slept that night. If the accused had left she would have been woken up by the door. She is a light sleeper and the door makes lots of noise.

She disagreed with the suggestion that the door could have been opened without her noticing it. [ 74 ] In February 2021, the accused told her the date of the incident in response to her question, she then searched for and found the videos. [ 75 ] On the following day, May 23, they all went to the same park as the night before, and from the park they drove to the airport to drop the accused off. She is sure it was the same park. Submission on behalf of the accused [ 76 ] The accused submits that the Crown has failed to prove the offence charged beyond a reasonable doubt.

The complainant’s evidence is not sufficiently reliable to found a conviction. The accused points to a number of inconsistencies in her evidence. [ 77 ] The complainant told the police she thought about having sex with the accused for a “few seconds”. However, in her evidence she downplayed this apparent attraction to the accused and testified she was not attracted to him, but ultimately conceded she “guessed” she was.

The accused submits that this is a material inconsistency as it goes to the issue of whether she desired to have sex with the accused or not. [ 78 ] The complainant’s evidence that she had no interest in the accused and all his advances were unwanted is inconsistent with her statement to the police that for a few seconds she considered having sex with him. The complainant gave specific evidence about the position of her body on the couch with right foot under her and the other hanging down.

She reversed this in cross-examination, and ultimately could not remember. [ 79 ] In her police statement of May 29, 2019, the complainant initially told the police there were not any phone calls, then later in the statement she recalled that a phone rang. In direct evidence, she testified that she was certain that a phone had rung and the accused left the bedroom to answer it and spoke in a foreign language. Then she was not certain whether he spoke in a foreign language or whether he had spoken on the phone at all.

This is not a trivial inconsistency as the complainant testified that it was the phone ringing that interrupted the first incident in the bedroom. [ 80 ] Another inconsistency in the complainant’s evidence is whether the accused blocked the bedroom door preventing her from leaving the room. It was put to her that she told this to Cst. Rai over the phone. The complainant was unable to give clear evidence as to whether this happened or not.

The accused submits that being blocked from an attempt to escape the room, if it did happen, would be something that the complainant would remember due to its significance. [ 81 ] The complainant was also inconsistent as to whether O. was present when she left his apartment that night. In one of her statements to the police, she said O. was present. She testified that only the accused was there when she left, but ultimately in cross- examination testified that she could not recall. [ 82 ] The complainant’s description of how she was pinned to the bed is implausible.

In her initial statement to the police, she did not state that the accused had one of her arms pinned behind her. However, one year later in a subsequent statement she remembered this detail. She was also inconsistent as to whether she was flipped over onto her back or rolled over. The accused submits that the

complainant embellished her evidence to suggest that the incident was more forceful than originally reported. She could not say whether her text to N. that he pulled her hair in the first incident was truthful or not. [ 83 ] The accused submits that the complainant has a motive to lie about being sexually assaulted, that is, to salvage her relationship with O.

She liked him and did not want him to know that she had sex with the accused, but the accused had told him. [ 84 ] Regarding the Snapchat messages, they cannot be used to buttress the complainant’s evidence, due to the law regarding the use of prior consistent statements. However, their timing and context can be used to assist with a credibility assessment. There is no expert evidence to assist the court regarding the times on the messages, or whether there has been any tampering. [ 85 ] The accused’s evidence was detailed and reliable. At the very least, his evidence raises a reasonable doubt.

The accused testified that the parties had consensual sexual intercourse with the complainant being an active participant. The events of the day were largely corroborated by the accused’s wife and the video evidence. Submissions on behalf of the Crown [ 86 ] The Crown submits that the accused’s evidence should be rejected, it is not logical and exhibited inconsistencies, and does not raise a reasonable doubt. The complainant was a credible and reliable witness.

Her evidence was detailed, and it would make no sense to make up that at one point she stubbed her toe, or that she threw the condom over her shoulder but it landed beside the accused. Her evidence that she texted N. between incidents and after, and called her sister, is corroborated by Exhibits 2 and 4. The discrepancies in her evidence suggested by the accused are peripheral or minor. The suggestion to the complainant that she provided the police with tampered or concocted screenshots and text messages to help her case makes no sense. [ 87 ] The accused evidence should be disbelieved.

Aspects of his evidence were inconsistent with the evidence of his wife, such as giving the children a bath, and what park they went to the following day. His evidence was inconsistent regarding smoking marihuana and driving. He testified that he waits eight hours, but agreed he only waited a short time after smoking with the complainant. His evidence that during intercourse when a noise was heard they did not jump up, was inconsistent with the supposed plan to get up and dress if they heard O. returning.

The complainant’s evidence that she did not want to have sex with the accused in O.’s apartment as it would be disrespectful to him makes sense. [ 88 ] The text messages and Snapchat messages are admissible as electronic documents pursuant to s.31 of the Canada Evidence Act and were led by the accused.

The contents of these documents contain prior consistent statements and cannot be used for the truth of their contents, however, the court is permitted to use the evidence for the purposes of narrative as circumstantial evidence and to rebut an allegation of recent fabrication. [ 89 ] From the text messages between the complainant and N. and the associated time stamps, it can be inferred that the complainant is at O.’s residence and the time stamps of 10:37 and 10:52 are consistent with the timeline of the sexual assault alleged.

The text from the complainant at 11:15 that she is waiting to be picked up by her sister is also consistent with the complainant’s telephone log of an outgoing call to her sister at 11:04, and her evidence that she called her sister at the time requesting to be picked up at or near O.’s residence. [ 90 ] The screen shots of the Snapchat messages establish that the accused is the person who sent the first message, “Hey what’s up? How are u?” The accused evidence that the complainant started the conversation, and some messages were not included, is not believable.

The accused testified that he also took screenshots of the messages, and the complainant would be aware of this as he was aware that she took screenshots, but he deleted them after a year when he obtained a new phone. It makes no sense that the complainant would alter messages when she knew that the accused had also taken screenshots. [ 91 ] The accused is relying on the time stamp of the screenshot of 5:08, 5:09, and 5:36 p.m., to concoct his evidence that the sexual contact occurred prior to 5:08 p.m. on May 22.

The complainant’s evidence is that the messages and screenshots are from the following day, May 23, after 5:00 p.m. The defence video evidence does not provide the accused an alibi for his whereabouts between 10:00 and 11:00 p.m. His evidence and that of his wife that he was at home during that time should be disbelieved.

Legal Principles General Principles of Law [ 92 ] There are two principles fundamental to every criminal trial, the presumption of innocence and the requirement that the Crown prove its case beyond a reasonable doubt. [ 93 ] The presumption of innocence remains with an accused throughout the trial. It is defeated only if, after considering all of the evidence, the court is satisfied beyond a reasonable doubt of the accused’s guilt.

The Crown’s burden of proof beyond a reasonable doubt applies to each essential element of each offence. [ 94 ] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense, and one that logically arises from the evidence or absence of evidence. Beyond a reasonable doubt is an exacting standard that is more than proof on a balance of probabilities but less than proof to an absolute certainty. As the Supreme Court explained in R. v.

Starr , 2000 SCC 40 at para. 242 , it lies along that measure “much closer to ‘absolute certainty’ than to ‘a balance of probabilities’”. Proof beyond a reasonable doubt is achieved if, after considering the totality of the evidence, the court is sure that the accused committed the offence charged or an included offence. [ 95 ] The credibility and reliability of the witnesses, primarily the complainant and the accused, are the principle issues in this case. CREDIBILITY

[96] The credibility of the witnesses and the reliability of their evidence is a key issue. [97] The distinction between reliable evidence and credible evidence was discussed by Doherty J.A. in R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.) at page 526: Testimonial evidence can raise veracity and accuracy concerns. The former relates to the witness’s sincerity, that is, his or herwillingness to speak the truth as the witness believes it to be.

The latter concerns relate to the actual accuracy of the witness’s testimony.The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the eventsin issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with theaccuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is notcredible cannot give reliable evidence on that point.

The evidence of a credible, that is, honest witness, may, however, still be unreliable.... [98] In Bradshaw v. Stenner, 2010 BCSC 1398, at para. 186, Dillon, J. set out a non-exhaustive list of factors the court may considerwhen assessing credibility: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v.

Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Farnya at para. 356). [99] There is no principle of law that requires a trier of fact to believe or disbelieve a witness' testimony in its entirety.

On thecontrary, a trier may believe none, part or all of a witness' evidence, and may attach different weight to different parts of a witness'evidence. [100] The accused testified. The analysis set out in W.(D.) applies: R. v. W.(D.), (SCC), [1991] 1 SCR 742. [101] The conclusions a trier of fact may reach when considering the totality of the evidence at the end of a case are set out in W.(D.)and supplemented by Justice Binnie in J.H.S.: R. v. J.H.S., 2008 SCC 30 , [2008] 2 SCR 152. These conclusions are as follows: 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, if, after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.

Fourth, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused. [102] The accused’s evidence could be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truthof conflicting credible evidence, without the need to identify a problem with the accused’s evidence. See. R. v.

F.M., 2020 BCSC 120 atparagraphs 130-132. [103] It is not for the accused to prove consent — the Crown must prove absence of consent, and this burden remains on the Crownthroughout.

Section 273.1 of the Criminal Code defines consent for the purpose of s. 271: 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question. [104] In R. v. Barton, 2019 SCC 33 at paras. 87-90, the Supreme Court of Canada addressed the proper treatment of the consent issue: [87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accusedcommitted the actus reus and had the necessary mens rea.

A person commits the actus reus of sexual assault “if he touches anotherperson in a sexual way without her consent”. The mens rea consists of the “intention to touch and knowing of, or being reckless of orwilfully blind to, a lack of consent on the part of the person touched”. [88] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity inquestion”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter”, and it must befreely given.

This consent must exist at the time the sexual activity in question occurs, and it can be revoked at any time. Further, as s.273.1(1) makes clear, “consent” is not considered in the abstract. Rather, it must be linked to the “sexual activity in question”, whichencompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does notinclude “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases”. [89] Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainant inher mind wanted the sexual touching to take place”. Thus, at this stage, the focus is placed squarely on the complainant’s state of mind,and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and thetrier of fact accepts this evidence, then there was no consent — plain and simple. At this point, the actus reus is complete. Thecomplainant need not express her lack of consent, or revocation of consent, for the actus reus to be established.

[90] For purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused”. Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”. [Citations omitted.] [ 105 ] In R. v.

E.A.G. , 2020 BCSC 1691 at paras. 185-192 , Justice Warren summarized the W.(D.) principles in the context of a “he said/she said” case. And, at para. 185, she underscores the point that an accused is not to be found guilty merely because the trier of fact concludes that the complainant's version of events is more likely to be true: Sexual assault cases often involve “he said/she said” scenarios, where the complainant and the accused are the only witnesses to the alleged criminal conduct.

In these kinds of cases, it is vitally important that judges do not decide that an accused is guilty merely because the judge concludes that the complainant’s version of events is more likely to be true. In other words, a criminal trial is not a credibility contest in which an accused must present a more credible version. Deciding a “he said/she said” case merely on the basis of which version is more likely to be true would misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt.

The correct application of the burden of proof requires the judge to acquit the accused if the evidence as a whole raises a reasonable doubt about guilt. In other words, it is possible that a judge might find the complainant’s version of events to be more believable but still have a reasonable doubt about what actually happened. In that situation, the benefit of the doubt must go to the accused. [ 106 ] In R. v. Langan , 2019 BCCA 467 , the court addressed the “narrative as circumstantial evidence” exception to the general rule against prior consistent statements.

At paragraph 44, 51, and 52 the court held: [44] It is also possible that some of the text messages may have been admissible under the “narrative as circumstantial evidence” exception to the general rule against prior consistent statements. In Gill , Justice Fitch provides a concise

summary of this exception to the rule: [76] … The exception permits the introduction of a prior consistent statement if the fact that it was made and the circumstances in which it was made, including its timing, are such that the statement may be useful to the trier of fact in assessing the credibility and reliability of the declarant’s in-court testimony. The prior consistent statement is not admitted for the truth of its contents or as a form of self-corroboration of the trial testimony of the witness.

The trier of fact also must not rely on the statement to support the prohibited inference that repetition enhances truthfulness. Rather, “the probative value of the statement lies in the inferences that can be drawn from the timing and circumstances of the statement, rather than the simple fact that the [witness] has said the same thing before.” [51] Since drafting these reasons, I have had the privilege of reading in draft form my colleague the Chief Justice’s reasons in dissent. I wish to briefly clarify and respond. [52] My colleague and I agree on the law.

There are a variety of legitimate purposes to which prior statements may be put.

One of those purposes—an exception to the rule against prior consistent statements—is “narrative as circumstantial evidence.” Citing Justice Paciocco’s article, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2012) 17 Can Crim L Rev 181, my colleague notes, as I have, that the narrative as circumstantial evidence exception does not allow prior consistent statements to be used for the “prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony.” A misperception repeated remains a misperception; an incorrect memory repeated remains an incorrect memory; a fabrication repeated remains a fabrication.

Analysis [ 107 ] Most often in sexual assault prosecutions, the time of day the incident occurs is not material or in conflict. However, in the unique circumstances of this case, the time of the incident is integrally tied to the credibility and reliability of the witnesses.

For instance if I find as a fact, and have no reasonable doubt about this fact, that the sexual contact did transpire at O.’s apartment between 10:00 and 11:00 p.m. on the evening of May 22, 2019, the accused’s credibility and reliability would be significantly undermined. [ 108 ] On the other hand, if I find as a fact that the sexual contact occurred in the afternoon between 4:00 and 5:00 p.m., the complainant’s credibility and reliability would be significantly undermined as it would impact several aspects of her evidence including the veracity of Exhibit 2, her text messages with N., that suggest the first incident occurred just prior to 10:37 p.m.

Even a reasonable doubt about her evidence on this point could undermine her reliability. Due to the specific and adamant evidence from both the accused and complainant regarding the time of day the sexual contact occurred, this is not a situation where one of the parties might be innocently mistaken as opposed to being untruthful.

Credibility and reliability of the accused and V.Q. [ 109 ] I will now address the credibility and reliability of the accused and his wife V.Q. [ 110 ] After considering the totality of the evidence, I do not believe the evidence of the accused regarding the issue of consent or the time of day that the sexual touching occurred, and it does not raise a reasonable doubt.

I also do not believe the evidence of V.Q. that the accused remained home with her and the children after returning from the park and it does not raise a reasonable doubt as to the accused’s guilt on its own or combined with the evidence of the accused. [ 111 ] I do find as a fact that the accused was at Penzer Park in Langley with his wife and children on the evening of May 22, 2019. They were at the park at 9:14 p.m. and still playing when the second video was taken.

I also accept, by reference to the Google Map, that the distance from Penzer Park to the accused’s home is 14.5 kilometres and takes 18-30 minutes to drive. I also accept that the distance from the accused’s home to O.’s home is 6.9 kilometres and takes 10-16 minutes to drive. The reasonable inference from these facts is that the accused likely arrived home from Penzer Park by 9:45 p.m. or perhaps closer to 10:00 p.m. However, this timeline leaves the accused with ample opportunity to arrive at O.’s shortly after 10 p.m. which accords with the complainant’s evidence as to when the

accused did in fact arrive at O.’s. [ 112 ] I do not believe the evidence of the accused for the following reasons: 1. I believe the evidence of R.W. that she did not consent to any of the sexual contact with the accused, and that the assault occurred at O.’s apartment between 10:00 and 11:00 p.m. on May 22, 2019. 2. The accused’s version of the circumstances around the sexual contact is not logical, defies common sense, and is inconsistent with the evidence that I do accept. 3.

I do not accept the accused’s evidence that despite their friend O. having left the apartment and could return at any time, the parties mutually agreed to proceed with sexual intercourse on their friend’s bed in the bedroom, believing they could avoid detection by jumping up and getting dressed. This makes no sense considering the layout of the two bedroom apartment. 4.

Although agreeing with the complainant that he would not tell O. of the sexual contact, within minutes of its completion, that he says occurred sometime between 4:00 to 5:00 p.m., he texted O. about his success, and O. responded with a LOL (laugh out loud) and a happy face emoji. If this is to be believed, then for some unknown reason within minutes, by reference to the Snapchat messages between the accused and the complainant, O. had already confronted the complainant about the sexual activity, was upset by it, and so the accused offered to talk to him – “Hole (sic) on let me talk to him.

He didn’t get what I said on the phone with him”. I also note that the accused testified that his contact with O. was by text message and not by talking to him on the phone. 5. The accused testified he left O.’s apartment at 5:30 p.m. and headed home leaving O.’s apartment unlocked, which I find to be unlikely as it would be an unusual to leave a friend’s apartment unsecured. Although the accused fluctuated with the times of day, he testified that he arrived home by 6:00 p.m.

I note that V.Q. testified that the accused did not arrive home until 7:00 p.m., which aligns closer in time to the evidence of R.W. as to when the accused dropped her and O. off at O.’s vehicle earlier in the evening. I further note, the accused testified that after returning home from the park after 10:00 p.m., he and V.Q. bathed the children, whereas V.Q. made no mention of that in her evidence when pressed for details in cross-examination. 6. The accused’s evidence of being at home between 10:00 and 11:00 p.m. is inconsistent with the time stamps on the complainant’s text messages with N.

I accept the evidence of the complainant that the text messages were not concocted or tampered with and the time stamps accord with her recollection as to when the incident occurred. 7. The accused’s evidence that the Snapchat messages between him and complainant, marked as Exhibit 3, were tampered with and does not include the beginning of the conversation is not credible. This evidence is inconsistent with the first message from him that reads, “Hey what’s up? How ar u”.

I have no doubt that this is the start of the conversation, not a mid conversation message, and the accused sent the first message. [ 113 ] Also, I do not believe the evidence of V.Q. that the accused did not leave their residence after they returned from Penzer Park with the children. V.Q. is either mistaken or being untruthful, most likely the latter.

I disbelieve her, and her evidence does not raise a reasonable doubt, because I accept as a fact and proved beyond a reasonable doubt, that the accused was with R.W. at O.’s apartment after 10:00 p.m. on May 22, 2019. [ 114 ] As indicated above, I accept the evidence of R.W. as credible and reliable. Her evidence was detailed and the discrepancies in her evidence were peripheral and expected due to the passage of time. The offence date is May 22, 2019. R.W. reported the incident the following day. She spoke to Cst. Rai on the phone on May 24 at 1:00 a.m.

This was followed up with four statements, May 29, 2019, December 15, 2019, June 25, 2020, and September 29, 2020. The trial did not commence until April 19, 2022. On this date, R.W. testified in direct and was briefly cross-examined. Shortly after cross-examination commenced, the accused applied for an adjournment to file

Section 276 and 278 applications. Cross-examination of R.W. did not resume until August 24, 2022. It is not surprising that over such a long period of time R.W.’s memory for peripheral details would fade and some uncertainty would set in. [ 115 ] For instance, in the complainant’s evidence there are discrepancies as to which leg was under her body on the couch, how she was pinned to the bed, and whether she rolled over or was flipped over when the position of sexual intercourse changed.

In my view, these type of inconsistencies are to be expected, and they do not detract from my assessment of the complainant as a truthful and reliable witness. I believe her evidence that she did not consent to any sexual contact with the accused on the evening of May 22, 2019. The submission that R.W. had a motive to lie, that being to salvage her relationship with O., is not supported by the evidence, does not detract from her credibility, and does not raise a reasonable doubt. [ 116 ] Furthermore, I found the complainant’s evidence to make sense.

She had finished work at 3:00 p.m. and was not picked up until after dinner, arriving at O.’s around 8:00 p.m. She had not seen the accused for 10 years, and although she might have briefly entertained the notion of some sexual activity with the accused, she liked O. and believed it would be disrespectful to him to have sex in his apartment, and he could return at any moment. [ 117 ] I accept the complainant’s evidence that she did not tamper with the Snapchat messages or text messages in order to enhance her credibility.

I also accept her evidence that the text messages with N. are from May 22, 2019 and the time stamps, between 10:07 p.m. and 11:15 p.m., are consistent with her memory as to when the sexual assault occurred. [ 118 ] Having accepted the complainant’s evidence that she was with the accused at O.’s apartment between 10 and 11 p.m., the time stamp on the screenshots of the Snapchat messages between her and the accused, starting at “5:08” p.m. that discuss the sexual contact, must be from the following day or the day after that.

It cannot be from May 22, the day of the incident as alleged by the accused in his evidence. I recognize that the time stamp of 5:08 p.m. is the time when the screenshot was taken, not necessarily the time when the messages were exchanged; however, I am satisfied that it does accurately reflect the time the messages were sent since the screenshot of the first page of the exhibit also includes a message that is still “sending”. Then on the third page of the exhibit the message that was sending, has been sent, and a screenshot of it has a time stamp of 5:09.

So, it is apparent that the complainant was taking screenshots during the conversation to preserve a copy.

[ 119 ] Applying the W(

D) test, I do not believe the evidence of the accused or that of his wife, V.Q., and it does not raise a reasonable doubt. Considering the evidence that I do accept, I am satisfied that the Crown has proved beyond a reasonable doubt that the complainant did not consent to any sexual contact with the accused on May 22, 2019, and was sexually assaulted by the accused in the manner described by the complainant including forced sexual intercourse. [ 120 ] Accordingly, I find the accused guilty of sexually assaulting R.W. contrary to s.271 of the Criminal Code . _____________________________ The Honourable Judge J. Solomon Provincial Court of British Columbia