R. v. N.B., 2018 BCPC 294

Citation: R. v. N.B. 2018 BCPC 294 Date: 20181126 File No: 248106 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. N.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. GORDON BAN ON PUBLICATION s. 486.4(2) CCC Counsel for the Crown: Brendan McCabe Counsel for the Defendant: Emmet Duncan Place of Hearing: Vancouver , B.C. Dates of Hearing: June 11, 12, 14, July 9, 20, September 14, 2018 Date of Judgment: November 26, 2018

INTRODUCTION [ 1 ] N.B. is before the Court on one count of Sexual Assault alleged to have occurred in Vancouver on August 13, 2015. [ 2 ] There is no issue that Mr. N.B. and the complainant, Ms. V.L., had sexual intercourse. The only issue before the Court is whether the Crown has proven beyond a reasonable doubt that Ms. V.L. did not consent to the sexual activity. CIRCUMSTANCES AND PROCEEDINGS [ 3 ] The trial commenced on June 11, 2018 and continued on June 12, 2018, June 14, 2018, July 19, 2018, July 20, 2018 and September 14, 2018. [ 4 ] During the summer of 2014, Ms.

V.L. was employed as a waitress with [omitted for publication]. By happenstance, one evening, Mr. N.B. was a passenger on a dinner cruise. The two met and spoke with one another. [ 5 ] There are significant factual discrepancies between Mr. N.B. and Ms. V.L. as to how the two came to meet. Ms. V.L. testified that Mr. N.B. approached her while she was on a break in the employee area of the ship. Mr. N.B. testified that Ms. V.L. approached him.

While who was the initiator of the conversation between the two is not in the least bit determinative of the ultimate issue before the Court, for reasons that will become clear, I find that it is more likely that Ms. V.L. approached Mr. N.B. [ 6 ] Mr. N.B. was on the cruise with his business partner, Ms. M.L. She is the mother of Mr. N.B.’s daughter, A., who was also on the cruise with them. Apparently, Ms. V.L. spent quite a bit of time speaking with Ms. M.L. as well. [ 7 ] According to Ms. V.L., notwithstanding that she and Mr. N.B. were complete strangers, she claimed that Mr.

N.B. immediately upon meeting her asked her to locate English language teachers for his international school; promising her commissions if she could do so. [ 8 ] Upon first seeing Mr. N.B., Ms. V.L. recognized him because of daily ads with his photograph in Chinese language newspapers advertising his immigration services. When she first immigrated to Canada, Ms. V.L. had read an

article about Mr. N.B. in a Canadian magazine addressing the top 40 under 40 entrepreneurs in Canada; she recognized his face from that article. She knew him to be quite prominent in the Chinese community. She testified that she is one person with a fantastic memory and therefor recognized him and recalled the article.

She acknowledged being happy to meet in person the successful man referenced in the article. [ 9 ] Before the cruise ended, the two shared contact information with one another. [ 10 ] At some point in time, the complainant left [omitted for publication] and was working for some sort of multi-level marketing coffee company. She sent a solicitation to Mr. N.B. and he responded. [ 11 ] The two arranged to meet at the coffee company business offices.

Afterward, they went for dinner at a Vietnamese restaurant at 49 th Avenue and Oak Street in Vancouver. [ 12 ] After that evening, the two had no contact with one another until Mr. N.B. sent a “We Chat” message to Ms. V.L. asking her to work at the private school that he was opening in Vancouver; (the “high school”). [ 13 ] Ms. V.L. testified that because the school had not yet opened, that she was free to apply for any position. Ms. V.L. testified that notwithstanding that she was unemployed at that time that she was not particularly interested and that Mr. N.B. pushed her into applying.

Screen shots of “We Chat” conversations between the two were filed as Exhibits at trial and clearly show that Ms. V.L. was significantly less than forthright in describing a lack of interest on her part. She was, in fact, very interested. [ 14 ] Ms. V.L.’s evidence with respect to whether she was interested in working for Mr. N.B. was one of many instances where she attempted to persuade the Court that everything about Mr. N.B. is nefarious. She testified that she wanted to work for UBC; “a reputable company”. Yet, her correspondence with Mr. N.B. showed a clear desire on her part to work for him.

She testified that she eventually went to work for Mr. N.B. only because he had hired her though the proper channels; yet, the “We Chat” messages are demonstrative of her active encouragement of Mr. N.B. ensuring that her resume be read by his business partner. [ 15 ] Ms. V.L. was interviewed by M.L. for the job. The child, A., was with her mother, Ms. M.L., during the interview. [ 16 ] Ms. V.L. did commence a form of employment with Mr. N.B.’s about to be up and running private school. Her employment commenced on August 10, 2015. [ 17 ] On August 13, 2015, Mr.

N.B. had returned to Canada from China and contacted Ms. V.L. to see if she wanted to go for lunch. He picked her up at a Starbucks in downtown Vancouver and they went to a sushi restaurant at 8 th Avenue and Ash Street in Vancouver. [ 18 ] According to Ms. V.L., the unwanted touching between she and Mr. N.B. commenced prior to entering the restaurant. The restaurant is entered by climbing several steep outdoor steps. Ms. V.L. testified that Mr. N.B. stroked her hair on the way up the stairs and that she moved away from him to create a distance between them. [ 19 ] Ms.

V.L. testified that the discussion at lunch was all business, including how to build the reputation of the school. She maintained that Mr. N.B. made notes/instructions in her notebook. Interestingly, while she returned to the restaurant to obtain a duplicate copy of the receipt as proof of her allegations against Mr. N.B., she apparently must not have provided investigating police officers with a copy of his alleged business notes in her notebook. [ 20 ] She testified as well that Mr. N.B. apparently offered to fire Ms. M.L. and promote Ms. V.L. to School Director. Ms. M.L. has a financial investment in school.

This bit of evidence appears to be one of the many fictions Ms. V.L. wove into her evidence.

[ 21 ] Ms. V.L. testified that her interest in Mr. N.B. was purely professional. [ 22 ] After the lunch, the two drove one block to the intersection of 8 th Avenue and Cambie Street to meet Mr. N.B.’s brother at a Wendy’s Restaurant. Ms. V.L. was under the impression that the brother had some sort of business interest in the school. [ 23 ] After the meeting, the two were back in Mr. N.B.’s car, driving downtown. According to Ms. V.L.’s evidence, she believed that Mr. N.B. was driving her to the business office. Instead he took her to his apartment in the [omitted for publication] area of Vancouver.

Her evidence was that she was nervous about entering his suite. [ 24 ] She testified that she hesitated entering and that he pulled her in by the elbow and closed the door. [ 25 ] He offered her a chocolate which apparently she took but didn’t eat. [ 26 ] Ms. V.L. testified that she told Mr. N.B. that she should leave, but then he insisted on boiling some water. According to her while they were waiting for the water to boil, he told her that she looks old and that it must be difficult for her to find work. Ms.

V.L.’s evidence on this point, although completely unrelated to the factual issue before me is completely incongruous. If I were to accept this portion of her evidence, Mr. N.B. would have gone within the course of two hours from offering her a position as Director of his business to telling her that she was fortunate to work for him because she was otherwise un-hireable. [ 27 ] She testified that she again told him that she wanted to leave and he said that they would as soon as he showed her around.

She testified that as they were walking he pulled her toward him by choking her and stuck his tongue into her mouth. She was apparently unable to move her head and neck while being held that way. She struggled, asked him what was happening and told him to stop. She either could or could not talk. She testified to both during her direct examination; testifying that she was able to tell Mr. N.B. to stop; and that she couldn’t tell him because his tongue was in her mouth. [ 28 ] She tried to push him away. He pulled her into the bedroom.

She struggled using both her arms and her legs. [ 29 ] She testified that she asked him what he was doing. He said that he’d liked her from the first time that he saw her and wanted her to be his girlfriend. She disagreed and tried to remind him that it was a professional relationship only. [ 30 ] Mr. N.B. flung her onto the bed and she ended up on her back, lying horizontally across the bed. He apparently then pulled both her dress and her brassiere off over her head. He pulled her pantyhose and underwear off. She testified that she tried to cover herself up with her hands.

He pressed down on her and undressed himself. His entire body was lying on top of hers. She begged him to stop. All of a sudden he began performing cunnilingus. He stopped suddenly and forced intercourse. She said it was painful. [ 31 ] Again, she asked him to stop and referenced that he was not wearing a condom. He promised that he would not ejaculate inside her. He said that he did not have any sexually transmitted diseases and “teased” her that she was too old to get pregnant. [ 32 ] She realized that he had ejaculated inside her and felt that he had totally destroyed her life. [ 33 ] Ms.

V.L. testified that at that point in time, Mr. N.B. left the bedroom and that she took the opportunity to start getting dressed. She had time to put on her underwear and brassiere, at which time Mr. N.B. returned to the bedroom. He apparently told her that he was not done and that she was to undress. [ 34 ] Mr. N.B. apparently, again, undressed Ms. V.L. and placed her back on the bed. She lay on her back and he tried to compel her to fellate him. She told him that she could not and he sweet talked her by telling her that she was beautiful.

Incongruously, in the midst of sweet talk, apparently designed to persuade her to fellate him, he apparently asked if she had performed oral sex on any of her previous bosses. He then turned around and directed her to lick his anus. [ 35 ] Ms. V.L. described certain of Mr. N.B.’s body parts including that he had a pinkish anus, a penis that was whitish in colour and certain birth marks. [ 36 ] Ms. V.L. told Mr. N.B. that she could not lick his anus and he began forcing intercourse for a second time. Again, without a condom. She described it as painful.

In the midst of the forced intercourse, he asked her to lick his nipple. She believes that the intercourse lasted for ten to fifteen minutes. [ 37 ] She told him that she had to go home to cook dinner for her daughter and that the child would call the police if she were not home on time. [ 38 ] At that point in time the rape apparently stopped and Mr. N.B. told her that he had to go have dinner with his mother and nephew. He told her he would take her home after they showered and he then showered the two of them together. [ 39 ] Ms. V.L.’s evidence was that she left the shower and dressed immediately. Mr.

N.B. told her not to tell anyone. He told her that Ms. M.L. would give her a hard time if Ms. M.L. were to find out. [ 40 ] In the midst of all of this, Ms. V.L.’s evidence was that Mr. N.B. compelled her to help him put a fresh sheet on to the bed. [ 41 ] She testified that she felt both like a tool and a sex slave. [ 42 ] Apparently, as Mr. N.B. was driving her home, he told Ms. V.L. that he wanted to come into her apartment and look around. She did not invite him in once they arrived at her building. [ 43 ] Once home, Ms.

V.L. showered and washed her underwear and pantyhose. [ 44 ] Early the next morning, she sent messages to some friends stating that she had been raped and asking what to do. One friend

provided her with the telephone number of victim services. Victim services in turn gave her the telephone number for Rape Relief. [ 45 ] Ms. V.L. had been unemployed prior to being hired by Mr. N.B.’s school. [ 46 ] Ms. V.L. went to the Vancouver General Hospital on August 14, 2015, for an examination. A volunteer from Rape Relief accompanied her. On August 21, 2015, two volunteers then accompanied her and sat with her while she interviewed by a police detective. [ 47 ] Ms. V.L. did not respond to any of Mr.

N.B.’s subsequent telephone calls or “We Chat” messages. [ 48 ] She obtained a “work absence certificate” from her general physician and had it forwarded to the school. [ 49 ] A representative from Rape Relief introduced Ms. V.L. to a civil litigator. Ms. V.L. then sued Mr. N.B. for $100,000.00; and, in the summer of 2016, settled with him outside of court for $27,500.00 without any admission of liability. [ 50 ] Though much of her evidence was contradictory, Ms. V.L. was completely unshaken in her evidence that she was sexually assaulted by Mr. N.B. [ 51 ] Mr.

N.B. testified on his own behalf. [ 52 ] The school that he runs both in Vancouver and in Toronto is a private high school. It is a Canadian based International Baccalaurean program for international students from China. [ 53 ] He testified as to his relationship with Ms. M.L. and A. A. was born in China. M.L. did not tell Mr. N.B. that he had a daughter (A.) until A. was 4 years old. Once he knew, Ms. M.L. and A. came to Canada and eventually Ms. M.L. became a smaller shareholder in the high school. [ 54 ] Mr. N.B. described how and when he met Ms. V.L.

He testified that he was seated on the boat deck and that she approached him and asked if he was N.B. She indicated that he was well known within the Chinese community and that she had read the top 40 under 40 article. The

article had apparently been published in 2003 by Vancouver Magazine. She seemed interested in him, so he kept speaking with her. She kept approaching throughout the cruise as time permitted. She commented that many women would be interested in a success story like himself. She asked to share contact information with him. [ 55 ] She called him in September and while she had him meet her at her place of employment, he felt that she had called more because she was interested in him personally. They went for dinner at a Vietnamese restaurant. [ 56 ] On July 20, 2015, from China, Mr. N.B. sent Ms.

V.L. a “We Chat” message asking if she would be interested in working for the high school. He had not made an offer to her before that date. [ 57 ] Mr. N.B. wanted to help Ms. V.L. with her underemployment situation and, therefore, offered her the position; he thought that she might be able to recruit students. He told her that M.L. would interview her for a position. [ 58 ] After Ms. V.L. had been interviewed and had incidentally met A., she asked Mr. N.B. what his relationship was to both of them (via “We Chat”). Mr. N.B. told her that she ought not to be concerning herself with such matters. [ 59 ] Mr.

N.B. returned from China early on August 13, 2015. He texted Ms. V.L. and asked if she wanted to have lunch with him. [ 60 ] Mr. N.B.’s evidence was that he wanted to introduce Ms. V.L. to his brother purely for social purposes. [ 61 ] At no point in time did Mr. N.B.’s brother have a business of financial interest in the high school. [ 62 ] Mr. N.B.’s evidence was that once arriving at the restaurant, that he and Ms. V.L. held hands while going up the stairs to the restaurant. The stairs are apparently very steep. [ 63 ] Over the course of the lunch, Ms.

V.L. asked how long he planned to stay in Vancouver and inquired into his dating/marital status. Mr. N.B. suggested that the two of them explore a personal relationship with each other. [ 64 ] Ms. V.L. questioned him about her concern that he might have a penchant for dating female staff members and he said that he did not. [ 65 ] At some point during the lunch they began holding one another’s hands. [ 66 ] Ms. V.L. asked what his apartment looked like and apparently envisaged a “nice” apartment. As will be seen later in these reasons, much of Mr.

N.B.’s evidence made sense in the context of the factual matrix of this case. It is apparent to me that Ms. V.L., from the point in time that she recognized Mr. N.B. as the apparent success story was impressed with Mr. N.B.’s apparent affluence. It seems to me likely true that she was very much interested in seeing the environment in which Mr. N.B. lived. [ 67 ] With respect to the issue arising from Ms. V.L.’s evidence as to whether Mr. N.B. had offered to fire Ms. M.L. and make Ms. V.L. the head of school, Mr. N.B.’s evidence pointed out the impossibility of that assertion; because Ms.

M.L. is and was a shareholder in the School. [ 68 ] Mr. N.B.’s description of the sexual activity that occurred between he and Ms. V.L. was of a consensual encounter that commenced with holding hands and kissing on the sofa in the living room, progressing to mutual fondling. [ 69 ] They then moved from the sofa to the bedroom.

[ 70 ] Mr. N.B. testified that once in the bedroom there was a consensual and mutual removal of clothing. Crown Counsel made much of what he said were differences between Ms. V.L. and Mr. N.B. with respect to what Ms. V.L. had been wearing that day. I find that there is no meaningful difference. Ms. V.L. testified that she wore a dress and pantyhose and that the dress came off over her head. Mr. N.B. testified that she wore something that came off over her head and something that had to be pulled down. The difference is a matter of semantics and not of substance. [ 71 ] Mr.

N.B. described pretty much the same order and same sexual activity as did Mr. V.L. The distinction between them being that while Ms. V.L. was adamant that she had not consented to any touching or sexual activity whatsoever, Mr. N.B. described a long languid afternoon of consensual sexual relations. [ 72 ] Mr. N.B. described that after he and Ms. V.L. had showered they returned to the bed to lie together and cuddle. He testified that Ms. V.L. again asked him about his relationships with Ms. M.L. and A. At that point in time, because he believed that he and Ms.

V.L. were at the beginning of an intimate relationship, he shared the story of A.’s parentage with her. Apparently, Ms. V.L. was very concerned that M.L. wanted to move into that apartment. [ 73 ] Mr. N.B. drove her home, they hugged and kissed and she left his car. [ 74 ] They never spoke again. His voice and text messages to her went unanswered. [ 75 ] Ms. V.L. went to VGH for examination the day after the alleged sexual assault. The examining doctor noticed tenderness and tearing in the vaginal area. The examination could not rule out the possibility that the tenderness was from consensual sexual activity.

The doctor could not opine as to the age of the bruises that she observed nor with respect to the amount of force that would have caused the bruising. [ 76 ] Mr. N.B. learned of Ms. V.L.’s complaint in January of 2016 when he received a demand letter from her counsel demanding $100,000.00. [ 77 ] He was concerned that if such a complaint were to be made public it would permanently damage the reputation of the school. He, therefore, settled the claim. He was charged criminally only after the settlement. [ 78 ] There are obviously significant differences between the evidence of Ms. V.L. and that of Mr. N.B.

The issue that has to be determined is, taking into account all of the evidence, has the Crown proven, beyond a reasonable doubt, that Ms. V.L. did not consent to the sexual acts. POSITIONS OF THE PARTIES THE DEFENCE [ 79 ] Defence argues firstly that with respect to the one issue, the Court has to consider the WD instruction with respect to credibility and the application of reasonable doubt to the issue of credibility. Even if the evidence of an accused person is disbelieved, there still may be a reasonable doubt as to that person’s guilt.

The onus is always on the Crown to prove guilt beyond a reasonable doubt. [ 80 ] Defence points out that the Court is not obligated to resolve “what happened”; rather, it is to determine only if the elements of the offence have been proven to the criminal standard. [ 81 ] The accused person has no obligation to put forward a theory as to why a complainant might have put forward a false complaint. [ 82 ] With respect to assessing credibility, he points out that the contact between Ms. V.L. and Mr. N.B. over “We Chat” in the period of time leading up to Ms.

V.L. becoming an employee of the high school not only support Mr. N.B.’s memory of events, they belie Ms. V.L.’s version. [ 83 ] He argues that Ms. V.L.’s evidence was replete with inconsistencies on matters both large and small. He argues that those inconsistencies ought to cause the Court grave concern. She was a witness who frequently changed her answer when she gained a belated understanding of the importance of an issue. [ 84 ] He described her fluid set of responses with respect to how and when she learned that A. is Mr.

N.B.’s daughter as the most stunning and the most important of her many inconsistencies. He argues as well that her fluid version of this fact is so temporally connected to the alleged sexual assault that it should on its own raise a reasonable doubt with respect to her entire account of the allegation. He argued that it is not believable that Mr. N.B. would suddenly launch into an interesting discussion about his past relationship history while choking, forcibly kissing and raping Ms. V.L. It is far more plausible that she came by the information as Mr. N.B. described. [ 85 ] The argument in sum is that Mr.

N.B.’s evidence establishes consent or at least a reasonable doubt on that issue. Also that Ms. V.L.’s evidence is so misleading that it cannot possibly sustain the Crown’s high burden of proof. THE CROWN [ 86 ] The Crown argues that it proved beyond a reasonable doubt that Mr. N.B. had non-consensual sexual relations with Ms. V.L. and, therefore, committed the offence of Sexual Assault. [ 87 ] Crown Counsel also acknowledged that credibility is the most significant concern in this case. He pointed out that neither Ms. V.L. nor Mr. N.B. was a perfect witness. He argued, however, that for the most part Ms.

V.L.’s evidence was consistent and that the medical report corroborated her version of events. [ 88 ] He asks that Ms. V.L.’s evidence be assessed in light of the fact that she told some friends the next day, which resulted in both a

complaint to the police and the attendance for a medical examination. [89] He argues that one of the two witnesses had to have lied to the Court about what transpired. He argues that Mr. N.B.’s versionof events cannot be reconciled with Ms. V.L.’s series of complaints. [90] He invited the Court to reject Mr. N.B.’s evidence, to accept Ms. V.L.’s evidence, and to convict. DISCUSSION [91] The Supreme Court of Canada in Regina v.

Ewanchuk, (SCC), [1999] 1 SCR 330 defined the elements of theoffence of sexual assault: A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reusand that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touchknowing of, or being reckless or willfully blind to a lack of consent, either by words or actions, from the person being touched … (atparagraph 23). …consent is the state of mind of the complainant… (at paragraph 23).

Trial judges should consider: … whether the complainant wanted the sexual touching to occur … A complainant’s evidence that she did not consent is a question of credibility. … the trier of fact must take into account the totality of the evidence, including any ambiguous or contradictory conduct by thecomplainant … (at paragraph 61). [92] “… it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all of the evidencepresented …” (Regina v REM, [2002] BCJ No. 185, at paragraph 22). A series of inconsistencies in the evidence of a complainant becomes significant.

The trier of fact must assess the totality of theinconsistencies. [93] With respect to the case before me, neither Ms. V.L. nor Mr. N.B. were particularly good witnesses. While I cannot say that Ibelieve the entirety of Mr. N.B.’s evidence, in the total factual matrix before me, I am able to say that it does sound reasonable. Additionally, the evidence of Ms. V.L. on many points, notwithstanding that she was adamant that she had been raped caused me verygrave concerns. [94] One of the factual differences in the evidence between the two was who spoke with whom first on the boat. Ms. V.L. testifiedthat Mr.

N.B. approached her and initially acknowledged asking him if he was N.B. when she first saw him and was serving him. Sheinitially acknowledged that she saw his ads daily in Chinese language newspapers and had read the 40 under 40 article. Yet, she claimedthat she did not view him as a successful person. Perversely, she would have the Court believe that he knew her for less than one minutebefore he asked her to introduce him to English language teachers; without knowing a thing about her other than that she was working asa waitress. Quite frankly, her suggestion stretches all credulity. [95] Ms.

V.L. related a story to the Court about traveling to Richmond the morning of August 13, 2105, and returning to the office toreport on that visit to Ms. M.L.; seemingly forgetting that Ms. M.L. was on Saltspring Island that day. [96] Throughout the course of her testimony, Ms. V.L.’s evidence would frequently change when she felt like the significance of aprevious answer might make it seem like she had an interest in Mr. N.B. For example, she initially acknowledged reading the 40 under40 article.

Under cross-examination, once she recognized the apparent import of that and, notwithstanding, that she is “one person with afantastic memory”, she claimed that she did not know if she had read the

article or if she had merely heard of it from a friend. How shewould have known of Mr. N.B. if she had merely heard of it was obviously a thought that she did not contemplate as she changed heranswer; she would have had no reason to recognize him because of it. Her change of evidence was completely incredible. [97] Later in her evidence she had to acknowledge human errors in memory even while purporting that her memory never failed. [98] Ms. V.L. had a habit of throwing non sequiturs into her answers as a means of either bolstering her own abilities or demeaningMr. N.B. [99] According to Ms.

V.L., in the summer of 2015, Mr. N.B. begged her to join his school business because she was a very talentedperson and could do the marketing for him. She claimed that he had been begging her for several weeks. Then she was confronted withthe “We Chat” messages showing otherwise. He had left a voice mail and she texted, “how could I forget you?” demonstrating that thevoice mail was the first time that she had heard from him in a long time. She then immediately accepted his offer of an interviewimmediately upon receiving a copy of the school brochure.

Prior to being shown the “We Chat” messages, she testified that it took herweeks to respond to Mr. N.B. because he was merely one of her thousands of contacts. Then she realized the hole that she had dug forherself. She still tried to maintain that even though she was unemployed she was too busy to respond to his multiple pleas to come workfor him. [100] There were no multiple pleas.

There was one suggestion by him and an immediate response from her. [101] All of her attempts to get out of the fact that it was clear that she responded immediately were completely nonsensical. [102] While I am reluctant to speculate why Ms. V.L. did not want to admit the obvious that she wanted to work for Mr. N.B. - it is

apparent that she felt that she had something to hide. With each question posed on cross-examination she came up with yet another preposterous explanation denying the obvious. [ 103 ] Ms. V.L. claimed that she responded to Mr. N.B. only as a courtesy to him yet she wrote that she was a perfect match for his business and asked where to send her resume. [ 104 ] Every peripheral aspect of Ms.

V.L.’s evidence was designed either to deny the obvious or to attempt to create to the Court a favourable impression of herself; resulting in only one conclusion: that it was all completely incredible. [ 105 ] When being cross-examined about whether she had a personal interest in Mr. N.B., Ms. V.L. testified that she googled him before working for him and that he had a terrible business reputation. This was yet another bit of her evidence that was belied by her actions; the exhibited evidence showed her absolute eagerness to work for and with Mr. N.B. [ 106 ] At one point in her evidence, Ms.

V.L. testified that she believed that Mr. N.B. and Ms. M.L. were married. This was a significant statement for many reasons. First, she had attempted to inquire about that very fact with Mr. N.B. before commencing work and had been stymied. The trier of fact is not obligated to conclude exactly what happened on August 13, 2015; only whether the Crown has proven a lack of consent beyond a reasonable doubt. This bold statement of belief from Ms. V.L. raised a serious red flag with respect to her credibility. She could have reached this conclusion only if Mr. N.B.’s evidence about “pillow talk” occurred. While Mr.

N.B. maintains that his relationship with Ms. M.L. in 2015 was professional only, Ms. V.L.’s belief otherwise could very well be the basis for her complaint. [ 107 ] Until she was confronted with the “We Chat” message where she questioned Mr. N.B. about his relationship(

s) with Ms. M.L. and A., Ms. V.L. denied ever having an interest in Mr. N.B.’s private life or ever asking about it. Mr. N.B.’s response to her at that time was that it was none of her business. [ 108 ] Screenshots of “We Chat” messages from Mr. N.B.’s cellular phone oddly show that his voice mail messages to Ms. V.L. lasted for one second. Preposterously, as was her wont, Ms. V.L. maintained that his messages were always exceptionally brief; as if anyone could humanly leave a voice message lasting one second or less.

Yet, when shown screenshots of the same messages from her telephone, it was clear that the messages were of an expected length; for example, 16 seconds. Ms. V.L.’s suggestion that Mr. N.B. could leave a series of messages of one second or less was part and parcel of her deliberate attempt to paint him in as bad a light as possible. Sadly, that too has a negative impact upon her credibility. [ 109 ] Ms. V.L. denied that she had wanted to have lunch with Mr. N.B. on the day in question until confronted with her own “We Chat” message to him stating, “I would like to meet you for lunch today”.

Time and again when shown her own words, Ms. V.L. was compelled to backtrack from an initial untenable answer. [ 110 ] Ms. V.L. claimed that for months Mr. N.B. had been pestering her to come and work for him. Yet, once again, the screenshots of the “We Chat” messages belied her telling of the events in that his message to her on July 20, 2015, asked if she remembered him. It was from then onward that he began discussing a potential position at the school with her. [ 111 ] Ms. V.L.’s evidence was that she paid particular attention to detail in order to report it as part of her complaint; for example, Mr.

N.B.’s skin colouration and his exact address. Yet, she initially denied that there was a door at the entry of the apartment bedroom, then testified that she couldn’t recall, and then testified that she had not paid attention. [ 112 ] Ms. V.L. had said that Mr. N.B. told her that she would be interviewed for the job by a Caucasian man named Mike and not by Ms. M.L. Yet, another statement belied by her “We Chat” messages to Mr. N.B. She wrote to Mr. N.B. on July 28 th wondering when she would hear from Ms. M.L. to set up the interview. [ 113 ] Ms.

V.L. acknowledged in cross-examination that during the interview she asked Ms. M.L. if A. was Mr. N.B.’s daughter and if Ms. M.L. was his wife. Apparently, Ms. M.L. responded that their discussion ought to remain on a professional level only. Both Mr. N.B. and Ms. M.L. had refused to answer the same personal questions posed by Ms. V.L. [ 114 ] Ms. V.L. was cross-examined about her apparent knowledge that A. is Mr. N.B.’s daughter and that Ms. M.L. is not his wife. She initially stated that he told her the story of A.’s birth mid-rape.

When she realized quite how preposterous that answer was, she changed it to him telling her the story as he was dragging her into the bedroom at the onset of the assault. In order to attempt to justify this answer, her evidence respecting that portion of the assault morphed from his having his tongue in her mouth the entirety of the time to only a second or two. She then claimed that he did not merely volunteer the information he answered a question she specifically asked of him as he had his tongue rammed down her throat.

Her story then changed to the conversation taking place not during the assault but rather afterward as she was assisting him put fresh bed coverings on the bed. Finally, her story changed to her asking him if he was married to Ms. M.L. while he raped her and if so was he therefore cheating on Ms. M.L. [ 115 ] Apparently, in the midst of it all she also asked him if the apartment that they were in belonged to Ms.

M.L. [ 116 ] Only one word can be used to describe the running lies and invented fiction that went on as cross-examination continued; and that word is preposterous. [ 117 ] Bearing in mind all of the inconsistencies and lies, I am compelled to have grave concerns about accepting Ms. V.L.’s evidence that she did not consent. Additionally, with respect to the issue of consent, Mr. N.B.’s evidence raises a reasonable doubt. Mr. N.B. is entitled to the benefit of that reasonable doubt and he is, therefore, acquitted.

_____________________________ The Honourable Judge E. Gordon Provincial Court of British Columbia