R. v. L.G.H. Date:, 2017 BCPC 433

Citation: R. v. L.G.H. Date: 20171211 2017 BCPC 433 File No: 24766-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Smithers, B.C. REGINA v. L.G.H. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Ban on Publication 486.4(2) CCC Counsel for the Crown: Feinberg, L. Counsel for the Defendant: Joseph, C. Place of Hearing: Smithers , B.C. Date of Hearing: December 6 and 7, 2017 Date of Judgment: December 11, 2017 Introduction

Introduction [ 1 ] L.G.H. is before the court charged with sexually assaulting J.W. on July 19, 2017. J.W. was drinking with L.G.H. and others on the afternoon of July 19, 2017. At a time when they were all intoxicated, L.G.H. grabbed J.W. around the waist and tried to pull him closer to him. J.W. says she resisted L.G.H.’s advances and pushed him away three times. He then stuck his finger up her butt and told her “I am going to eat you out like no one has done before.” J.W. says she did not consent to this sexual touching.

The defence did not call evidence, however, says J.W. should not be believed because of her level of intoxication. Moreover the defence argues the evidence indicates the incident giving rise to the charge was equally consistent with an accidental touching as to a deliberate assault because both parties were highly intoxicated at the time and standing on insecure ground. Issue: [ 2 ] The issues in this matter are: a. Has the Crown proven the identity of the accused beyond a reasonable doubt? b.

Has the Crown proven beyond a reasonable doubt L.G.H. sexually assaulted J.W. on July 19, 2016? [ 3 ] The Defence concedes the Crown has proven date, time and jurisdiction of the offence beyond a reasonable doubt. Procedural History [ 4 ] The incident giving rise to the offence occurred on July 19, 2017, in Smithers, British Columbia. L.G.H. was arrested and detained and in custody at the time of trial. I heard the trial over two days, December 6 and 7, 2017, in Smithers Provincial Court.

The Crown called three witnesses: the Complainant, J.W., one of the investigating officers, Constable Wong and civilian witness, L.G. There was only one exhibit tendered in trial which was a booklet of photographs Constable Wong had taken at the hospital. The defence did not call any evidence. This is my decision and reasons for judgment. Background facts: J.W.’s Evidence [ 5 ] J.W. is 25 years old she resides in [omitted for publication], British Columbia with her boyfriend J.M. They have been a couple for approximately 13 months. [ 6 ] July 19, 2017, was a hot and sunny summer day.

J.W. was wearing a long silk dress, underwear and flip flops. She was spending the day in Smithers, B.C. As her boyfriend was not with her, J.W. agreed with H.W. they would hang out together. [ 7 ] J.W. went to the Broadway shelter in Smithers at 11:30 and had a fish sandwich. After she ate, J.W. went to the stage (the “Stage”) at Bovill Square on Broadway Avenue and Main Street to socialize with her friends. While at the Stage J.W. met up with H.W., J.B. and her cousin, F.P. H.W. had a mickey of vodka from which J.W. took a couple of shots. [ 8 ] J.B. introduced J.W. to L.G.H.

J.B. told J.W. and H.W. that L.G.H. invited them to a house on [omitted for publication] Avenue to hang out. He had a cooler and a mickey to share. [ 9 ] While at the Stage H.W. began flirting with L.G.H. and they discussed going to L.G.H.’s hotel room. Although she was couple of feet away talking to her cousin, F.P., J.W. overheard some of L.G.H. and H.W.’s conversation.

J.W. became upset at the prospect of H.W. “ditching” her to go to L.G.H.’s hotel room because H.W. had agreed to spend the day with her. [ 10 ] While at the Stage, J.W. did not pay much attention to L.G.H.; instead, she socialized with H.W. and F.P. [ 11 ] J.W. and H.W. decided to accept L.G.H.’s invitation to go to a house on [omitted for publication] Avenue to hang out and drink alcohol. They agreed to go for just a little while and then planned to return to the Stage. [ 12 ] At some point L.G.H. left the Stage with J.B. to go to the house on [omitted for publication] Avenue.

J.W. and H.W. went to the Liquor Warehouse on Broadway Avenue, less than a block from the Stage. J.W. did not have any money, but H.W. had $20. H.W. purchased a mickey of Silent Sam vodka. [ 13 ] J.W. estimates that by this time both she and H.W. were a “5” on an intoxication scale of 1 to 10, one being sober and 10 being passed out drunk. [ 14 ] J.W. and H.W. went to the house on [omitted for publication] Avenue in the late afternoon where they met up with J.B. and L.G.H. There they socialized outside the residence for two to three hours. J.W., H.W. and L.G.H. shared three mickeys of Silent Sam vodka.

J.B. was consuming a “skinny” of wine which L.G.H. had purchased for him. [ 15 ] After being at the house on [omitted for publication] Avenue for two to three hours, J.W., H.W. and L.G.H. returned to the Liquor Warehouse on Broadway to purchase more alcohol. While walking back to the Liquor Warehouse, L.G.H. was kissing H.W. on the neck. She told him to wait until they got to the hotel room. [ 16 ] H.W. went inside the Liquor Warehouse to purchase more Silent Sam vodka.

J.W. and L.G.H. waited for her in the gravel parking lot across the street. [ 17 ] J.W. says she was drunk, but can still remember the events of that day. Although she took anxiety medication from time to time, she did not take any that day, nor had she consumed any recreational drugs.

[ 18 ] When L.G.H., J.W. and H.W. returned to the Liquor Warehouse in the late afternoon of July 19, 2017, L.G.H. was intoxicated and badly slurring his words. [ 19 ] While H.W. was in the Liquor Warehouse, L.G.H. and J.W. were standing, talking in the gravel parking lot. L.G.H. tried to get close to J.W. by grabbing her and putting his arms around her waist. She told him she was a married woman and pushed him away. L.G.H. grabbed her again. She pushed him away again.

He said to her: I’m gonna eat you out like no one has done before. [ 20 ] While saying this L.G.H. shoved his finger up J.W.’s buttock through the fabric of her clothing. She felt him insert the tip of one finger in her “bum hole” which I take to be her anus. [ 21 ] J.W. was shocked and pushed L.G.H. away really hard. She said she felt scared and disgusted. She started walking towards her friends at the Stage. [ 22 ] While walking away from L.G.H., H.W. emerged from the Liquor Warehouse with their alcohol and caught up with J.W. J.W. told H.W. about the assault.

L.G.H. followed them to the Stage as H.W. was carrying his alcohol. [ 23 ] When she arrived at the Stage with H.W., J.W. encountered L.G., H.T. and L.M. J.W. told L.G. about the incident with L.G.H. L.G. grabbed L.G.H. and pushed him away from the Stage and ordered him to leave, which he did. [ 24 ] J.W. did not consent to L.G.H. touching her in the manner he did and she did nothing for him to think it was okay. She did not flirt with L.G.H. or encourage him. She told him she had a boyfriend and when he tried to put his arms around her, J.W. pushed him away three times.

She does not agree his actions may have been accidental, particularly while inserting is finger in her “butt”, he said to her, “I am going to eat you out like no one has done before.” [ 25 ] Later that afternoon J.W. returned to the Broadway shelter and told the shelter worker Abby about the incident. Abby persuaded J.W. to make a complaint to the police, which she did. [ 26 ] J.W. met L.G.H. for the first time on July 19, 2017, however spent at least two to three hours with him that day.

She described L.G.H. as a brown skinned male about her height with short black hair wearing a cowboy hat and a red and black jersey. She said L.G.H. showed the group a tattoo that covered his back which included the word “Outlaw”. J.W. also described L.G.H. as having a goatee and a scar on his face under his eye. [ 27 ] J.W. identified the accused in court as the person she spent time with and assaulted her on July 19, 2017. Her description of L.G.H. is consistent with the photographs comprising Exhibit 1. L.G.’s Evidence [ 28 ] L.G. is 48 years old and has lived in Smithers her entire life.

She has known J.W. since birth. She did not know L.G.H. but could identify him in court as the man she first met and encountered twice on July 19, 2017. L.G. is also a professed alcoholic. [ 29 ] On July 19, 2017, L.G. and her partner, K.A., started drinking after they awoke, which is their habit. Because panhandling was tight that day, L.G. only drank a “skinny” of 74 Sherry, which was significantly less than she ordinarily drinks. She did not have money to buy more alcohol. [ 30 ] L.G. encountered L.G.H. early in the day, when he asked her if she knew J.B.’s whereabouts.

She saw him again later in the afternoon following J.W. and H.W. to the Stage. L.G. described L.G.H. as a native gentleman from up north with a moustache and wearing a cowboy hat. [ 31 ] L.G. said that in the late afternoon on July 19, 2017, she was hanging out at the Stage in Bovill Square in Smithers with her spouse, K.A., and their friends, H.T. and L.M. Also present, for a while at least, were D.L., A.J. and W.W. It was a hot day and the group were drinking and playing with water.

They were moving back and forth from the library to the Stage. [ 32 ] While at the Stage, L.G. could hear someone on Broadway saying “ow ow ow”, and she looked down the street to investigate. She saw J.W. and H.W. about a quarter block away walking away from the Liquor Warehouse toward the Stage. When J.W. saw L.G., she ran toward her calling out “mum, mum, mum”. L.G. explained that to street kids she was “mum”. L.G. has been “mum” to J.W. since J.W.’s biological mother left J.W.’s father, L.W., years ago. [ 33 ] J.W. and H.W. ran up to L.G. at or near the Stage.

They were both intoxicated and talking loudly at the same time. J.W. turned around and L.G. saw that she had her skirt and underwear thong stuck in her butt until L.G. “slapped them out.” [ 34 ] L.G. saw the man she identified in court as the accused, following approximately four to five feet behind J.W. J.W. turned around pointed to the accused and said “he stuck his finger up my bum.” [ 35 ] L.G. became angry and began pushing and hitting L.G.H.

He ran off across Main Street toward the Royal Bank and L.M. went after him. [ 36 ] J.W. began sharing the “40 pounder” of Silent Sam vodka H.W. had picked up at the Liquor Warehouse. [ 37 ] L.G. was aware that J.W. complained to the police about the incident. On July 20, 2017, the police asked L.G. for a statement. She told the police at the time of the statement she was under the influence and that in addition to alcohol, she had consumed some pills, morphine and a bowl of weed.

The police took her statement anyway. [ 38 ] L.G. was adamant that she could recognize the accused as the person who had asked her about J.B., the man she saw following

J.W. on July 19, 2017, and the man she had pushed and hit as a result of J.W.’s accusations. Constable Wong’s Evidence [39] Constable Jason Wong has been a member of the Royal Canadian Mounted Police (“RCMP”) for 7 ½ years. He is nowstationed in Burnaby, B.C., however on July 19, 2017, he was still stationed in Smithers, B.C. [40] At about 5:50 p.m. the RCMP in Smithers received two back to back telephone calls. The first call was from a womancomplaining she had been sexual assaulted. The second call was from someone reporting an unconscious male lying on the sidewalk inthe vicinity of Second and Queen.

Constable Wong went patrolling for the unconscious male; Constable Van Leiuwen responded to thesexual assault complaint. [41] Constable Wong located the unconscious male at 6:10 p.m., lying on the grass on the corner of Second Avenue and QueenStreet, in Smithers. He was wearing a cowboy hat, jeans, a black and orange B.C. Lion’s jersey and sunglasses. His face was bloodied. [42] Constable Wong tried to rouse the man, who was obviously very intoxicated. The man was able to tell the officer his name wasL.G.H., but was too intoxicated to provide his date of birth.

Constable Wong had difficulty keeping L.G.H. conscious. L.G.H. hadglossy eyes and slurred speech; he had trouble focusing and just wanted to go back to sleep. Because he had blood on his face, ConstableWong called the ambulance who took L.G.H. to the hospital to have him medically assessed. [43] Constable Wong followed L.G.H. to the hospital, where L.G.H. was finally able to tell Constable Wong his date of birth.

Withhis consent, Constable Wong took a series of photographs of L.G.H., which were tendered into evidence as Exhibit1. [44] The photographs indicate L.G.H. was wearing the clothes Constable Wong described. Constable Wong also took a photographof L.G.H.’s back showing a large skull tattoo below the word “Outlaw”. He took photographs of L.G.H.’s face showing a prominent scarunder his eye and that his face had been bloodied.

L.G.H. also had a moustache and goatee. [45] Constable Wong said that on an intoxication scale of 1 to 10, where one is sober and 10 is passed out, L.G.H. was between 8and 9 because he was unconscious when Constable Wong first came upon him. [46] While Constable Wong was at the hospital, Constable Van Lieuwen took a statement from J.W. who complained L.G.H. hadsexually assaulted her earlier that day. Constable Van Lieuwen told Constable Wong that L.G.H. was arrestable for sexual assault. Constable Wong left the hospital shortly after Constable Van Lieuwen arrived and took charge of L.G.H.

Legal Framework Elements of the offence of sexual assault [47]

Section 271of the Code sets out the offence of sexual assault. In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330,at para. 23, the Supreme Court set out the five essential elements of the offence of sexual assault has follows: a. three criminal act (actus reus) elements: i. touching ii. the sexual nature of the contact iii. the absence of consent b. two criminal intent (mens rea) elements: i. intention to touch ii. knowledge, recklessness or wilful blindness about lack of consent [48] Major J., for the majority of the court in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para.28, stated inpart: 28.

The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, bothphysical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of humandignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the securityof the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’sright to physical integrity is a fundamental principle . . .

It follows that any intentional but unwanted touching is criminal. Criminal Act: Element 1: Touching [49] A sexual assault can be any form of assault as that term is defined the s. 265 of the Criminal Code, which includes: a. direct or indirect application of force (touching); b. acts or gestures that attempt or threaten to apply force; and c. accosting or impeding another person while armed with a weapon. Criminal Act: Element 2: Sexual Nature

[50] For a sexual assault, the contact must be of a “sexual nature”. In R. v.

Chase (SCC), at para. 11, McIntyre J.held that sexual assault is “committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.” Thesexual nature of the contact is determined objectively, on the standard of the reasonable observer, and involves a consideration of thefollowing factors: a. the body part touched; b. the nature of the touching; c. the surrounding situation or circumstances; d. the accompanying words or gestures, including threats; and e. the intent or purpose behind the touching, including sexual gratification.

Criminal Act: Element 3: Absence of Consent [51] In R. v. J.A., 2011 SCC 28 , [2011] S.C.J. No. 28, McLachlin C.J. stated “It is a fundamental principle of Canadian lawthat a person is entitled to refuse sexual contact.” [52] Sexual assault requires an absence of consent, meaning “the voluntary agreement of the complainant to engage in the sexualactivity in question”: s. 273.1 of the Criminal Code. The Complainant must subjectively agree to the specific physical act, its sexualnature and the identity of the partner: R. v.

Hutchinson, 2014 SCC 19 , at para. 54. [53] Consent exists in the mind of the person touched. Whether the complainant subjectively consented in her mind at the time is aquestion of fact to be gleaned from: (

a) the complainant’s direct evidence as to her state of mind at the time; (

b) other relevant evidence,including the complainant’s “words or actions, before and during the incident. [54] The Crown must prove the absence of consent beyond a reasonable doubt. [55] Consent is a voluntary agreement to engage in sexual activity. If the Court finds the complainant did not consent in her mind,consent cannot be “implied” by objectively construing her actions in the circumstances. There’s no defence of “implied consent” or “defacto consent.” Consent cannot be inferred from silence, passivity or ambiguity: Ewanchuk, para. 51.

This means the Court cannotimply consent by the complainant’s failure to resist sexual activity, submission to sexual activity or even apparent willingness toparticipate in sexual activity. The accused’s view of the complainant’s conduct is not relevant to whether the Crown has proven thecriminal act. [56] The Supreme Court in Ewanchuk, R. v. M. (M.L.), [1994] 2 SCR 3, (SCC), and R. v. Esau, (SCC), [1997] 2 SCR 777 has unequivocally and repeatedly stated the complainant’s passivity is not consent. A complainant is notrequired to offer some word or gesture of objection to the sexual activity, however minimal.

The Court cannot equate her lack ofresistance with consent. Criminal Intent: Element 4: Intention to Touch [57] Even if the complainant did not subjectively consent to the sexual activity, the accused must have intended to touch thecomplainant, meaning it was not accidental or inadvertent. [58] Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch thecomplainant in order to satisfy the basic mens rea requirement: Ewanchuk at para. 41 citing R. v.

Daviault, [1994] 3 SCR 63, (SCC). [59] Because sexual assault is a general intent offence, s. 33.1 of the Criminal Code applies, and self-induced intoxication will notsupport a defence that the accused lacked general intent or the voluntariness required to commit the offence. [60]

Section 273.2 of the Criminal Code statutorily precludes the defence of mistake of fact as to actual consent where the accused’sbelief is based on self-induced intoxication, recklessness or wilful blindness. Parliament has precluded the defence of mistake of fact asto consent where the accused has failed to take reasonable steps to ascertain that the complainant was consenting. [61]

Section 273.2 applies to all sexual assaults. It is engaged whenever a mistake of fact as to actual consent is advanced. In thiscase, the defence has not asserted a mistake of fact as to consent. Criminal Intent: Elements 5: Having knowledge or being reckless of or wilfully blind to a lack of consent [62] The Crown must prove an accused intended to touch the complainant in a sexual manner and that he had knowledge or wasreckless or wilfully blind about her lack of consent.

Whereas consent, as an integral element of the criminal act is considered from theperspective of the complainant, consent, as an integral element of the criminal intent, is considered from the perspective of the accused:Ewanchuk, para. 44. [63] The accused can negate criminal intent with an honest, but mistaken belief the complainant was communicating consent by herwords or conduct to the sexual activity in question. [64] The defence of honest but mistaken belief is limited by statutory and common law.

As referenced above, s. 273.2 ofthe Criminal Code provides that it is not a defence to a charge of sexual assault that the accused believed the complainant consented tothe sexual activity where that belief arose from the accused’s self-induced intoxication, recklessness or wilful blindness, or “the accuseddid not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”

[65] The accused’s mistaken belief in consent need not be reasonable in order for the defence to be available, only honest. It isavailable where there is a denial of consent which the accused interprets as consent in circumstances of ambiguity or equivocalityshowing the possibility of mistaken believe without being wilfully blind or reckless: R. v. Davis, (SCC), at para. 86.

Application of the Law to the Facts in this case Elements not in issue: [66] The following elements of the offence of sexual assault are uncontested: a. the date and time of the incident; and b. the jurisdiction of this court; Analysis Assessing reasonable doubt [67] In R. v. W. (D), , the Supreme Court of Canada provided the trial Courts with an analytical framework to assessreasonable doubt in the context of conflicting testimony in a criminal trial. Justice David M. Paciocco, in his paper, Doubt about Doubt:Coping with R. v. W(

D) and Credibility Assessment, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [68] In cases such as this where the defence does not call evidence, any evidence inconsistent with guilt must necessarily arise fromthe Crown’s case.

Assessing Credibility and Reliability [69] In order to evaluate the evidence, I must assess its credibility and reliability. In doing so, I can accept all, some or none of awitnesses’ evidence. [70] In order to assess the reliability of a witness’s evidence, I must assess his or her ability to perceive, recall and communicate theevidence. [71] In order to assess the credibility of each witness, I have taken into consideration the following factors: (

a) the internalconsistency with other parts of the witness's evidence given at trial; (

b) the consistency of the witness’s account over time; (

c) theexternal consistency of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) theinherent plausibility of the evidence; (

f) the ”balance” of the evidence, meaning the witness’s apparent willingness to be fair andforthright; and (

g) to a lesser extent, the attitude and demeanour of the witness. Constable Wong [72] I find Constable Wong to be a reliable and credible witness. Police officers are trained to observe and remember and to recordtheir observations. Constable Wong recorded his observations in his notebook and with photographs. I accept Constable Wong’sevidence without hesitation or reservation. J.W. [73] The incident giving rise to the charges before the Court occurred on July 19, 2017, a little over four months before the trialcommenced.

It occurred on an afternoon when the complainant, the accused and civilian witnesses were all intoxicated. [74] Notwithstanding her intoxication at the material time, I find J.W. able to perceive, recall and communicate her evidencereasonably well. [75] Although J.W. was somewhat combative and recalcitrant at times, I find her a credible witness. Her evidence was internallyand externally consistent notwithstanding a lengthy and probing cross examination. I also find J.W.’s version of events plausible andcorroborated to some extent by L.G.’s evidence.

In terms of balance, it was apparent that J.W. would have preferred not to have beencompelled to court. Although she remained steadfast in recounting the incident, I did not get the impression she embellished orexaggerated her evidence to L.G.H.’s prejudice. Accordingly, I accept J.W.’s evidence that: a. L.G.H. repeatedly grabbed her around the waist trying to bring her close to him; b. He stuck his finger in her buttock through the fabric of her dress and underwear while saying “I am going to eat you out as noone has before”;

c. She did not consent to L.G.H. touching her in this manner; d. L.G.H.’s actions were not accidental or involuntary; and e. She recognized L.G.H. as the person who committed the acts she complained of. L.G. [ 76 ] I find L.G.’s evidence was at times internally and externally inconsistent. For example, in her direct evidence, L.G. described L.G.H. staggering and in cross-examination she said she did not see him staggering.

I also accept L.G. was under the influence of multiple intoxicants when giving her statement to the police on July 20, 2017 and as a result her description of the events in her statement varied from her evidence at trial. [ 77 ] There was nothing about L.G.’s demeanour which suggested to me she was intoxicated when testifying at trial. As the offence was just over four months prior to the trial commencing, I accept that L.G. does have an independent memory of the events of which she testified. I also note her evidence is corroborated by that of J.W.’s and in some respects, by Constable Wong’s photographs .

I accept L.G.’s evidence as it relates to the matter before the court, that: a. she saw J.W. and H.W. near the Stage shortly after the incident giving rise to the charge before the court; b. J.W. and H.W. were intoxicated; c. J.W.’s dress and underclothing were still stuck in her buttocks and L.G. adjusted them for her; d. L.G.H. was following behind J.W. and H.W.; e. J.W. told L.G. that L.G.H. and stuck his finger in her bum; f. As a result of this accusation, L.G. struck L.G.H.; and g. L.G. recognized L.G.H. from her encounters with him on July 19, 2017.

Issue #1: Has the Crown proven beyond reasonable doubt the identity of the accused? [ 78 ] A threshold issue in this case is whether the Crown has proven the accused was the person who J.W. alleges to have sexually assaulted her on July 19, 2017. [ 79 ] J.B. had introduced L.G.H. by name to J.W. on July 19, 2017 and J.W. went on to spend two to three hours with L.G.H.

L.G. saw L.G.H. twice that day, the last time being when J.W. accused him of “sticking his finger up her bum.” [ 80 ] J.W.’s description of L.G.H.’s clothing and distinguishing marks, including a tattoo and facial scar, are corroborated by Constable Wong’s photographs taken shortly after the incident. [ 81 ] L.G.H. identified himself by his name and date of birth to Constable Wong. [ 82 ] L.G.H.’s physical appearance in court matched J.W.’s description of him and the person photographed in Exhibit 1. [ 83 ] L.G. encountered L.G.H. on two occasions on July 19, 2017, and on the second occasion, she attacked him.

I accept that she recognized him at court as the person she had hit after hearing J.W.’s allegations and observing the state of J.W. ’ s clothing. [ 84 ] I am satisfied the Crown has proven beyond a reasonable doubt L.G.H. was the person who committed the acts giving rise to the charge before the court. Issue #2: Has the Crown proven beyond a reasonable doubt that L.G.H. sexually assaulted J.W. on July 19, 2016. [ 85 ] I am satisfied the Crown has proven beyond a reasonable doubt that L.G.H. sexually assaulted J.W. on July 19, 2017 in the manner she described.

I find that by inserting his finger in her buttock through the fabric of her clothing L.G.H. touched J.W. in a sexual manner, particularly as this act was accompanied by his words that he was “going to eat [her] out as no one had ever done before.” [ 86 ] I do not find, as the defence submits, the sexual touching was accidental or inadvertent as a result L.G.H. and J.W. being unsteady on their feet due to their level of intoxication and J.W. wearing flip flops while standing on a gravel parking lot. [ 87 ] I accept J.W.’s evidence that she did not consent to L.G.H.’s touching.

She had a boyfriend and told L.G.H. so. She pushed L.G.H. away three times when he tried to draw her closer. I am satisfied L.G.H. knew J.W. did not consent to the sexual touching or was reckless or wilfully blind about her lack of consent. Even if L.G.H.’s recklessness or wilful blindness as to consent was the product of his self-induced intoxication, this does not assist him. [ 88 ] L.G.H. has not advanced a defence of honest but mistaken belief in her consent and there is nothing in the evidence before me to suggest such a defence exists.

Disposition [ 89 ] I find L.G.H. guilty of sexually assaulting J.W. in Smithers, B.C. on July 19, 2017 as charged under Information 24766-1. ______________________________

Judge J. T. Doulis Provincial Court of British Columbia