R. v. K.N., 2022 BCPC 12

Citation: R. v. K.N. 2022 BCPC 12 Date: 20220126 File No: 254015-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. K.N. BAN ON PUBLICATION -

SECTION 486.4(2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Sebellin Counsel for the Defendant: J. Turner and L. Fumano Place of Hearing: Vancouver , B.C. Dates of Hearing: July 19, 20, 21, 22, 26, 27, 28, 29; August 23, 24, 2021 Date of Judgment: January 26, 2022 INTRODUCTION

Nature of charge [1] The accused, Mr. K.N., is charged with sexually assaulting the complainant, Ms. N.B., on August 25, 2018, in Vancouver,British Columbia, contrary to s. 271 of the Criminal Code. Mr. K.N. and Ms. N.B. did not know each other before August 2018. Theymet for the first time when both of them were out at nightclubs in the Granville Street entertainment district in the late evening of August24, 2018, and early morning of August 25, 2018. [2] Each of them went downtown separately. They initially met at the Studio nightclub and later again at another club.

Eventually,as will be explained in these reasons, Mr. K.N. drove Ms. N.B. to his apartment. There are many points in their testimony where theymore or less agree on what occurred. However, each one of them gave very different evidence about what occurred at Mr. K.N.’sapartment. The central issues in this case relate to the parties’ credibility and reliability, and to whether Ms. N.B. consented to the sexualactivities that occurred in the early morning of August 25, 2018, in Mr. K.N.’s apartment. [3] At the trial, the Crown called a number of witnesses, including Ms.

N.B., the investigating detective constable, and expertwitnesses (regarding Ms. N.B.’s medical examination and DNA and other tests). The defence only called Mr. K.N., who testified on hisown behalf. Ms. N.B. maintained that the sexual activities, which occurred on August 25, 2018, were not sought by her and occurredwithout her consent. On the other hand, Mr. K.N. maintained that the sexual activities were mutually voluntary and that Ms. N.B.consented to them. [4] Before issuing these reasons, I also issued rulings on two other issues, which arose in this case.

The initial ruling was on an s.714.2 application for witness to appear by videoconference, R. v. K.N., 2021 BCPC 126. A second ruling was on a blended voir dire, R.v. K. N. (August 30, 2021) Vancouver File #254015-1 (BCPC). [5] There is a publication ban pursuant to s. 486.4 (2) of the Criminal Code. Accordingly, I have anonymized the names of thecomplainant, the accused, and others by using initials to ensure compliance with the publication ban. [6] In these reasons, I will set out the applicable legal principles.

However, it is appropriate to summarize the basic legal principlesthat apply to this case at the beginning of these reasons, to place the applicable issues in context. First, Mr. K.N. is by law presumed tobe innocent until proven guilty. This presumption lies at the heart of Canadian criminal law. Second, Mr. K.N. has no duty or obligationto prove his innocence. Third, the Crown always has the duty to prove guilt beyond a reasonable doubt.

Additionally, since the offencecharged is a sexual assault, the Crown must establish that an assault of a sexual nature occurred, that the assault occurred without Ms.N.B.’s consent, and that the assault was committed in a manner that violated her sexual integrity. See R. v. Chase, (SCC), [1987] 2 S.C.R. 293, R. v. H.S.B., 2021 BCPC 67. Matters not in dispute [7] After a review of the evidence given at trial, I am satisfied that the matters set out below are not in dispute:

a) In August 2018, Ms. N.B., who was 22 years old at the time, was in Vancouver, British Columbia, on a two-year working visa. Shehad not yet decided whether she was going to stay. On the date of the incident, Ms. N.B. had been in Vancouver for approximately twoor three weeks. She was staying at an Airbnb in Delta, British Columbia. Using an app called CouchSurfer, which allows travellers tomeet up in a particular city, she connected with a woman named Ms. A.M.

b) The plan for that weekend was that they were going to go out on Friday evening, August 24, 2018. Ms. N.B. was going to Ms.A.M.’s place to get ready. Together they were going to downtown Vancouver to meet a few other people they met through CouchSurfer.Ms. N.B. was going to go back to stay at Ms. A.M.’s place later, and they were going to do something together the next day.

c) Ms. N.B. took public transit and arrived at Ms. A.M.’s place sometime in the evening. She changed there and after about an hour, thetwo of them went to downtown Vancouver. Ms. N.B. left her personal things in a backpack at Ms. A.M.’s place, which was in Kitsilano.

d) The first club Ms. N.B. and Ms. A.M. went to was the Studio Lounge (“the Studio”). There they met up with a few other people fromCouchSurfer.

e) Mr. K.N., who was 39 years old at the time, lived in Vancouver. On the date of the incident, he went to downtown Vancouver on theevening of August 24, 2018, to blow off some steam by hearing some music and relaxing. He said in court that he arrived downtownaround 11:10 PM or so. He went to the Studio.

f) Ms. N.B. and Mr. K.N. did not know one another. They had never met before August 24, 2018. They met at the Studio. They bothrecalled meeting one another at the bar while getting drinks. Ms. N.B. recalled having a short chat with Mr. K.N. and making small talk.Mr. K.N. recalled speaking to Ms. N.B. and her friend and later joining them on the dance floor.

g) Ms. N.B. and her friend went to a second club on Granville Street. She did not remember the name. Ms. A.M. said she and Ms. N.B.stayed at the second club for about an hour and then went back to the Studio. Ms. N.B. said she again saw Mr. K.N. there. However, itwas not something they had planned.

h) At a later point in the evening/early morning, Ms. N.B. was in Mr. K.N.’s presence when her friend, Ms. A.M., told her she wasgoing to go home. Ms. A.M. left with a male friend who was very intoxicated. Ms. A.M. wanted to take him away from the situation onGranville Street. Before Ms. A.M. left, she voiced a concern about leaving Ms. N.B. alone. Ms. N.B. agreed she told Ms. A.M. that shecould take care of herself and that she would be fine. Mr. K.N. was there during that conversation. According to Ms. N.B., Mr. K.N.suggested he could drop her off at Ms. A.M.’s place. Mr. K.N. said that if it became necessary, he would get a hotel for her.

i) Ms. N.B. said that by the time Ms. A.M. decided to leave, she was having lots of fun. She felt quite comfortable with Mr. K.N. Heseemed very friendly. Ms. N.B. decided to stay downtown. Ms. A.M. left downtown at approximately 1:30 AM.

j) Ms. N.B. and Mr. K.N. went to another bar, which was the Cinema Public House (“the Cinema”). That was the last club they attended. Ms. N.B. and Mr. K.N. entered the Cinema together. At some point, while she was at the Cinema, Ms. N.B. was on the dance floor with Mr. K.N., dancing. A video recorded by the Cinema showed that Mr. K.N. and Ms. N.B. were on the dance floor at around 2:40 AM and continued for a while thereafter.

k) At the Cinema, Ms. N.B. and Mr. K.N. met two young Japanese women who were at the club. Ms. N.B. and Mr. K.N. danced with the Japanese girls. It appeared they were dancing as a group. There may also have been a Japanese man. At one point, while they were still at the Cinema, Ms. N.B. played a game of foosball.

l) Eventually, at approximately 3:15 AM, Mr. K.N. and Ms. N.B. left the Cinema together. They and one of the Japanese women went to Mr. K.N.’s car, which was parked nearby.

m) Mr. K.N. drove his car. Ms. N.B. sat in the front passenger seat and the Japanese woman sat in the back. They travelled from the Granville Street entertainment district, where the clubs were located, to Mr. K.N.’s apartment, which the evidence established was on the 2400 hundred block of East Broadway in Vancouver.

n) When they arrived at Mr. K.N.’s apartment building, Mr. K.N. parked the car in the underground parking lot. The three of them took an elevator to Mr. K.N.’s apartment. The three of them were in Mr. K.N.’s apartment for what appeared to be a short time. Mr. K.N. left to drive the Japanese woman home. However, according to Mr. K.N., she changed her mind so he dropped her off at the Renfrew Skytrain station.

o) In the meantime, Ms. N.B. was in the apartment apparently by herself. According to Ms. N.B., she was not feeling well and she had a shower. She made a bed on the floor of Mr. K.N.’s bedroom using some cushions and a throw, and lay down on it.

p) At some point later, Mr. K.N. returned to his apartment. Ms. N.B. was sleeping on the floor but woke up. Eventually, there was a series of alleged interactions between Ms. N.B. and Mr. K.N., which led to the sexual assault charge. Timeframe of events that led to charge against Mr. K.N. [ 8 ] A brief timeline of the events which occurred on the late evening of August 24, 2018, and the early morning of August 25, 2018, is set out below: • At approximately 10:00 PM to 10:30 PM, August 24, 2018, Ms. N.B. and Ms.

A.M. arrived at the Granville Street entertainment district. • At approximately 11:10 PM or so, August 24, Mr. K.N. arrived at the Granville Street entertainment district. • At specific times that were not clear, Ms. N.B. and Ms. A.M. were in the Studio. They were there after 11:10 PM when Ms. N.B. first met Mr. K.N. at the bar. • At approximately 1:06 AM, August 25, Mr. K.N. sent a text message to Ms. N.B.'s cell phone. • At approximately 1:30 AM, August 25, Ms. A.M. left the Granville Street entertainment district to take a drunk friend home. • At approximately 1:33 AM, on August 25, Ms. N.B. and Mr.

K.N. were captured on a video entering the Cinema. • At approximately 2:00 AM, shortly after Ms. A.M. arrived home, she sent a text message to Ms. N.B. to check on her and received a reply. • At approximately 2:12 AM, Ms. N.B. sent a reply text message to Mr. K.N.'s cell phone. • At approximately 3:15 AM, Ms. N.B. and Mr. K.N., and likely the Japanese girl, left the Cinema. • Between 1:33 AM, when Ms. N.B. and Mr.

K.N. were recorded on video entering the Cinema, and at 3:15 AM when they were recorded leaving the Cinema, there were a number of instances when they were also recorded on the video doing various activities in the Cinema. • At a specific time unknown, but sometime after 3:15 AM, August 25, Ms. N.B., Mr. K.N. and the Japanese girl arrived at Mr. K.N.’s apartment. • At a specific time unknown, Mr. K.N. and the Japanese girl left the apartment and according to Mr. K.N. he drove to the Renfrew Skytrain station. • At a specific time unknown, Mr. K.N. returned to his apartment. • At a specific time unknown , Ms.

N.B. left the apartment. • At a specific time unknown, Ms. N.B. called 911. She did so immediately after leaving the apartment. • At approximately 4:37 AM, Constable Reynolds received a call to attend at the area of 2600 block Penticton Street and 10 th Avenue in Vancouver. • At approximately 4:47 AM, Constable Reynolds arrived and saw Ms. N.B. standing at the corner of Penticton Street and 10 th Avenue.

• At approximately 5:33 AM on August 25, 2018, Constable Stewart and another officer went to Mr. K.N.’s apartment. He was not there. They spoke to his German roommate. • At a specific time unknown, an ambulance took Ms. N.B. to the hospital. Constable Reynolds said it was at approximately 5:32 AM. • At a specific time unknown, Constable Reynolds followed the ambulance to the hospital in his police car. • At approximately 6:20 AM, Ms. N.B. was first seen in the emergency department at Vancouver General Hospital. • At approximately 7:00 AM, Ms. A. M. sent a text message to Ms. N.B. to check on her.

She received a text message back that Ms. N.B. was in the hospital. • At approximately 7:10 AM, Doctor Klassen saw Ms. N.B. at Vancouver General Hospital and began an examination. • At approximately 7:50 AM, Constable Reynolds received a completed SANE kit. ISSUES [ 9 ] The two central issues in this case are:

a) Did Ms. N.B. consent to any sexual interactions with Mr. K. N.?

b) Given the diametrically opposed testimony about a number of matters given by Ms. N.B. and Mr. K.N., does this Court accept any or some of their evidence. A corollary of that is whether the evidence given at trial, including their testimony, when considered as a whole proves the charge of sexual assault beyond a reasonable doubt? EVIDENCE AT TRIAL Evidence of Complainant and Accused [ 10 ] The evidence of Mr. K.N. and Ms. N.B. diverges on a number of points. However, the main difference in their testimony relates to what happened between them in the bedroom at Mr.

K.N.’s apartment, after he returned from driving a young Japanese woman to a skytrain station. I will review the testimony of Ms. N.B. and Mr. K.N. about what happened in the bedroom. However, I will also summarize their evidence about the events leading up to their interaction at Mr. K.N.’s apartment. Given the inconsistencies/differences in their evidence, I will set out the evidence by interweaving what was said in direct and cross-examination in their respective testimony. In some instances, this may result in some repetition and may affect the flow of the narrative. Ms. N.B.’s evidence [ 11 ] Ms.

N.B. went to the entertainment district in downtown Vancouver with Ms. A.M. Prior to going downtown, Ms. N.B. had not smoked any marijuana, taken any prescription drugs or drunk any alcohol. In cross-examination, Ms. N.B. agreed she arrived in downtown Vancouver at approximately 10:30 PM. The first club she and Ms. A.M. went to was the Studio. However, she did not remember the name. While she was at the Studio, she had two or three drinks. She drank Malibu and Coca-Cola. While she was at the bar ordering a drink, she met Mr. K.N., who introduced himself to her. They had a short conversation. [ 12 ] Ms.

N.B. and her friend did not stay at the Studio all night. Her recollection was that they went to two other places. She did not remember the name of the second place. She did not remember if Mr. K.N. went with them to the second place. The second place was just another bar. She thought they may have been there about an hour, but that was a guess. She drank alcohol at the second location but did not specify how much. In cross-examination, Ms. N.B. agreed she ran into Mr. K.N. again at the second club. This was not something they had planned. [ 13 ] Ms.

N.B.’s recollection was that they later went back to the Studio. However, she could not remember the order. She recalled meeting Mr. K.N. again at the point when Ms. A.M. wanted to go home. Ms. N.B. said she was having lots of fun at that point. She felt quite comfortable with Mr. K.N. He seemed very friendly. He offered to drive her back to Ms. A.M.’s place later. She decided to stay downtown. Ms. A.M. was there when Ms. N.B. had a conversation with Mr. K.N. [ 14 ] Ms. A.M. expressed some concern about Ms. N.B. getting back to her place. Ms. A.M. asked what would happen if Ms. N.B. went to her place late and Ms.

A.M. was not able to answer the door because she was asleep. Mr. K.N. said not to worry because he could get Ms. N.B. a hotel or something. Ms. N.B. acknowledged she wanted to stay downtown because she was having fun. In cross- examination, Ms. N.B. agreed she told Ms. A.M. words to the effect that she could take care of herself and she would be fine. Ms. A.M. left with a man she knew from CouchSurfer. In cross-examination, Ms. N.B. agreed that Ms. A.M. left downtown at approximately 1:30 AM. That was the last time Ms. N.B. saw her. [ 15 ] In cross-examination, Ms.

N.B. said she did not remember going to a McDonald’s with Ms. A.M. and some other people. However, Ms. N.B. said that is the sort of thing she would have done if she had been drinking. She did not remember ordering any food at McDonald’s or eating it before Ms. A.M. left. After Ms. A.M. left, Ms. N.B. and Mr. K.N. went to another bar. She did not remember the name of that bar. However, it was the last place she went with Mr. K.N. It was where she played a foosball game. Through the testimony of another witness, it was established that the club was the Cinema. Ms. N.B. was not sure what time she and Mr.

K.N. arrived at the Cinema. She was also not sure how long they stayed there. [ 16 ] Ms. N.B. said she drank alcoholic beverages while at the Cinema. She did not remember how many. However, it was more than she could handle. She remembered feeling quite sick. She was giving away drinks that were brought to her. She could not remember precisely what drinks she consumed. However, she remembered they were shots. She may have had one or two shots of spirits, as she

does not drink beer or wine. [ 17 ] In direct, Ms. N.B. said she and Mr. K.N. played foosball at the Cinema. They also met a couple of Japanese girls there. She danced with the two Japanese girls for a while. There was also a Japanese man who may have been with the two girls. In cross- examination, Ms. N.B. agreed that, while she was at the Cinema, she met some other people including the two Japanese girls. She agreed she was dancing at that club. Ms. N.B. did not remember dancing with Mr. K.N. She also did not remember dancing with any other man while she was at that club.

However, she agreed when questioned by defence counsel that it was possible she had danced with Mr. K.N. at the Cinema. [ 18 ] In cross-examination, defence counsel asked Ms. N.B. about the time she arrived at the Cinema. He put to her, based on videos seized from the Cinema, that she and Mr. K.N. entered the club together at approximately 1:30 AM . Ms. N.B. agreed she entered the club with Mr. K.N. However, she did not recall the time. She agreed that shortly after she arrived at the Cinema, she likely had a drink, but she did not remember that specifically. In cross-examination, Ms.

N.B. thought she remembered being on the dance floor with Mr. K.N., dancing, and having a drink. According to the video clip from the Cinema, this was approximately at 2:40 AM. [ 19 ] In cross-examination, defence counsel put to Ms. N.B. that the video clip showed Mr. K.N. putting his hands on her waist and rubbing her stomach. Ms. N.B. said she did not remember that happening. However, she acknowledged it was something that could have happened. She also agreed that at about that time, namely 2:42 AM, Mr. K.N. took a drink from her. [ 20 ] Defence counsel also asked Ms.

N.B. several questions about her interaction with Mr. K.N. on the dance floor at the Cinema. Ms. N.B. thought she remembered Mr. K.N. putting his arm around her when they were on the dance floor. This was at approximately 2:46 AM, according to the video clip. She also remembered that Mr. K.N. hugged her while she was trying to get him to jump onto her back. Ms. N.B. thought she was strong and thought she could carry him. [ 21 ] In direct, Ms. N.B. said she left the Cinema with Mr. K.N. and one of the Japanese girls. By the time they left, Ms. N.B. was feeling quite nauseous.

She described herself as being intoxicated to the point that she was feeling ill. After they left the club, they went to Mr. K.N.’s car. Ms. N.B. did not know where they were going. She sat in the front passenger seat of the car and the Japanese girl sat in the back. Ms. N.B. said she had her head out the window because by then she thought she was going to be sick. However, she did not get sick while she was in the car. Ms. N.B. said when they left the Cinema no arrangements were made with Mr. K.N. about where they were going. Ms.

N.B. said it did not cross her mind because the alcohol she had consumed had kind of taken over. [ 22 ] In direct, Ms. N.B. said they ended up in an underground carpark. Mr. K.N. and the Japanese girl helped Ms. N.B. out of the car and into an elevator. Later, Ms. N.B. learned it was Mr. K.N.’s apartment, which was part of an apartment complex. By that point, she was feeling quite sick. She was bent over. Ms. N.B. thought that if Mr. K.N. and the Japanese girl had not helped her out, she might just have fallen asleep in the car. At that point, Ms.

N.B. said, she was not sure if she could walk on her own. [ 23 ] In cross-examination, defence counsel suggested to Ms. N.B. that she and Mr. K.N. left the nightclub together at approximately 3:12 AM. Ms. N.B. remembered leaving the club with Mr. K.N., but not the time. She remembered there was a conversation between two Japanese women and Mr. K.N. One of the Japanese women went back with Ms. N.B. to Mr. K.N.’s car, which was close by. Ms. N.B. said, at the point when they were in Mr. K.N.’s car, there was no discussion about Mr.

K.N. taking her to a hotel. [ 24 ] In cross-examination, defence counsel suggested to Ms. N.B. that Mr. K.N. told her he was going to drive the Japanese girl home. Ms. N.B. did not remember that. She also did not remember Mr. K.N. telling her that he would drive her back to Ms. A.M.’s place, if Ms. N.B. wanted. When pressed by defence counsel, Ms. N.B. said there was a lot she did not remember, therefore, it was a possibility Mr. K.N. may have mentioned that. Ms. N.B. said she was quite drunk at that point. She also agreed it was possible Mr.

K.N. may have mentioned to her that he was going to drive the Japanese girl home. However, she did not remember. [ 25 ] In direct, Ms. N.B. said she did not remember who entered the apartment first. She felt sick and was taken straight to the bathroom. Ms. N.B. did not remember whether, at that point, she was by herself or not. Mr. K.N. told Ms. N.B. he had a German flatmate. However, Ms. N.B. said she never saw anyone else in the apartment. Ms. N.B. said the Japanese girl was in the apartment at that point as well. However, not long after Ms. N.B. had gone into the bathroom, both the Japanese girl and Mr.

K.N. left the apartment. [ 26 ] According to Ms. N.B., when she said she was going to be sick, Mr. K.N. showed her where the ensuite bathroom was. She was alone in the bathroom. She vomited into the toilet. After that, she had a shower. After the shower, she put her underwear back on. It turned out that the ensuite bathroom was connected to a walk-in wardrobe area. She grabbed a T-shirt and used it as a nightgown. [ 27 ] In cross-examination, defence counsel suggested to Ms. N.B. that, when they got to the apartment, she was able to walk on her own, without help from either the Japanese girl or Mr. K.N.

She agreed. Ms. N.B. said she, Mr. K.N., and the Japanese girl all got into an elevator and went up to Mr. K.N.’s apartment. When they arrived at the apartment, Ms. N.B. went straight to the bathroom. She thought she had made it clear to them that she needed to be sick. Defence counsel asked Ms. N.B. if it was possible that she did not tell anyone she was going to be sick. Ms. N.B. said it was possible, but she did not think it was very likely. In answer to further questions, Ms. N.B. said she was the only one in the bathroom when she was being sick.

She did not recall making a mess when she vomited into the toilet. [ 28 ] Ms. N.B. said when she came out of the bathroom there was no one there. Defence counsel suggested to her that when she came out of the bathroom the Japanese girl was still there and Mr. K.N. told Ms. N.B. he was going to drive the Japanese girl home. Ms. N.B. said that sounded right. Defence counsel also suggested to Ms. N.B. that Mr. K.N. asked her whether she wanted him to drive her home. She did not remember that. Defence counsel put to Ms. N.B. that when Mr. K.N. asked her that, she replied she was okay and she did not need a ride home.

Ms. N.B. did not recall that. When pressed on that point, Ms. N.B. said she did not believe that ever happened. However, she confirmed she remembered Mr. K.N. telling her that he was going to drive the Japanese girl home. [ 29 ] Defence counsel suggested to Ms. N.B. that after she had spoken with Mr. K.N. about him taking the Japanese girl home and after he left, she went to the bathroom and took a shower. Ms. N.B. said her recollection was that she went from vomiting in the bathroom straight to the shower. She said Mr. K.N. driving the Japanese girl home rang a bell.

However, she could not really remember that very well.

[ 30 ] Ms. N.B.’s direct testimony continued, she said when she went into the bedroom, she saw many decorative pillows on the bed. She used those decorative pillows to make a bed by putting them on the floor. There was also a throw on the bed, which she used as a blanket. While all this was going on, Ms. N.B. said she did not know where Mr. K.N. was. She did not know if he was still in the apartment. She did not know what arrangements, if any, he had made with the Japanese girl. Ms. N.B. thought that by the time she made the bed on the floor, she had been in Mr. K.N.’s apartment for about 45 minutes.

During that time, Mr. K.N. was not there. [ 31 ] In direct, Ms. N.B. also said after she made a bed on the floor, she lay down and she fell asleep. She was wearing her underwear and a T-shirt. Her dress, bra, and shoes were in the bathroom. The next thing Ms. N.B. remembered was being woken up by Mr. K.N. She said Mr. K.N. lifted her up from the floor and put her on the bed. Ms. N.B. was half-asleep and a little dozy. She told Mr. K.N., “No, no I’m fine on the floor”. He simply responded, “It’s Okay”. Ms. N.B. said she kind of went to sleep again on the bed because Mr. K.N. had put her there. Ms.

N.B. said she was wearing the same clothes she had gone to sleep in, namely, a T-shirt and her underwear. Ms. N.B. said Mr. K.N. also climbed onto the bed. The Crown asked Ms. N.B. what she recalled next. She thought she might have gone to sleep again. But she did not recall. She said that she tried not to remember this, as much as possible, but she remembered Mr. K.N. kissing her face. She turned her face away. Ms. N.B.’s next memory was that her underwear was not on anymore. She did not remember her top (i.e. the T-shirt) coming off. Ms.

N.B. thought she was completely naked at that point. [ 32 ] In cross-examination, defence counsel took Ms. N.B. through the steps she had taken to make herself comfortable. Ms. N.B. said when Mr. K.N. returned, she was awoken when he lifted her onto the bed. She said Mr. K.N. picked her up like a baby. One hand was under her knees and the other was under her top part. Defence counsel tried to envisage what she described. He asked Ms. N.B. whether Mr. K.N. put both arms under her body and lifted her up. Ms. N.B. said, “Yes” because that is how she woke up, in Mr. K.N.’s arms. At that point, she said to Mr.

K.N., words to the effect, “What are you doing, no I was fine on the floor”. Ms. N.B. thought she communicated to Mr. K.N. that she was fine in the makeshift bed. She also said, “I am fine where I was”. [ 33 ] Defence counsel suggested to Ms. N.B. that she got onto the bed on her own steam. She denied that. Defence counsel suggested to Ms. N.B. that when Mr. K.N. came home and saw her on the floor, he told her she did not have to sleep there. She could go on the bed with him. Ms. N.B. denied he told her that. Defence counsel also suggested at that point, Mr.

K.N. told her he had to get up at 5:30 AM for an early shift. She did not remember that. She said it was possible Mr. K.N. may have said that. Ms. N.B. also said she was in-and-out of sleep. She had been up late. [ 34 ] In direct, Ms. N.B. said when Mr. K.N. kissed her, he was just kissing her skin. He did not kiss her on the mouth. She turned her head. At that point, she was naked. She was on her back and Mr. K.N. was on top of her. Ms. N.B. said Mr. K.N. kissed her breasts and nipples and down her tummy and stuff. The Crown asked Ms. N.B. what her reaction was to what was happening. Ms.

N.B. said she did not really do anything. Ms. N.B. said she has now learned that people can go into a fight or flight kind of thing. She said she went into “the flight” and just kind of disassociated. [ 35 ] Ms. N.B., in direct, said her next memory was of Mr. K.N. being on top of her and penetrating her. Once she registered what was happening, Ms. N.B. asked Mr. K.N. what he was doing. She told him to, “Get off, get off” of her a couple of times. Mr. K.N. said, “Wait”, but he did not get off her. Ms. N.B. thought she may have tried to get Mr. K.N. off her. However, Mr.

K.N. was bigger than she was so she had to wait for him to finish before he got off her. She thought she waited 5 to 10 seconds, “not too – too long”. Ms. N.B. said that when she used the word “finished”, she meant that he ejaculated. Once he got off her, Ms. N.B. got up and ran to the bathroom; semen was running down her legs. [ 36 ] In direct, Ms. N.B. also said when she used the word “penetration”, she was referring to Mr. K.N. penetrating her vagina. When that was happening, Ms. N.B. said there was no conversation other than what she had mentioned earlier in her testimony. The only thing Mr.

K.N. said was, “Wait”. Ms. N.B. said Mr. K.N. did not ask for permission to perform any of the acts. As well, Ms. N.B. said, at no time did she ask Mr. K.N. to do those things to her. Ms. N.B. said when they left the club, she saw Mr. K.N. as a nice new friend. She was in another country, trying to meet new people, and experience a different culture. Ms. N.B. said that when she and Mr. K.N. were at the club there was no talk about sexual activity. [ 37 ] In cross-examination, defence counsel put a number of propositions to Ms. N.B., namely, that: • She told Mr. K.N. that they should cuddle. – Ms.

N.B. denied that. She said she definitely would not have said that. Ms. N.B. said she had a partner and that was why she made a bed on the floor. • Mr. K.N. told her he had to go to work early, but she could stay in the apartment as long as she liked, and make herself at home. – Ms. N.B. said she did not remember that. • When she was on the bed, she was the one who began cuddling with Mr. K.N. and then he began kissing her. – Ms. N.B. denied that. • She, at some point, removed the T-shirt she was wearing as well as her underwear. – Ms. N.B. said she did not ever do that. She did not recall her clothes coming off.

She definitely did not do it herself because she would remember taking her own underwear and T- shirt off. She said that did not happen. • Ms. N.B. asked Mr. K.N. if he could give her oral sex. – Ms. N.B. denied that. She did not recall oral sex or agreeing to oral sex. • Ms. N.B. told Mr. K.N. she wanted him inside her. – She denied that. Ms. N.B. said that was not something she would say. She said it was not a matter of not remembering; it definitely did not happen. • Mr. K.N. asked her if he could go inside her and she agreed. – Ms.

N.B. said she did not remember that question or agreeing to it. [ 38 ] In cross-examination, Ms. N.B. agreed that at some point she asked Mr. K.N. to stop. She did not think she used those precise words. She thought she said, “Get off”. She stated again that Mr. K.N. did not ask if he could enter her. She believed he was penetrating her longer than 5 to 10 seconds. Ms. N.B. said by the time she realized what was happening, she told Mr. K.N. to, “Get off”. She said

after that, he got off her. [ 39 ] During cross-examination, defence counsel also asked Ms. N.B. if she had any memory of what might have happened before the 5 to 10 seconds when she said Mr. K.N. was inside her. Ms. N.B. replied, “No, not really”. Ms. N.B. said that later she found out, talking to therapists, that one could go into fight or flight mode. She went into “flight mode”. She said it felt like being in a bad dream or a nightmare. Ms. N.B. did not know what was happening. However, once she kind of really realized what was happening, that it was physical, and that Mr.

K.N. was on top of her, the “flight” changed to “fight”. That is when she told Mr. K.N. to, “Get off, get off”. [ 40 ] Defence counsel followed up on Ms. N.B.’s statement that she was seeing therapists. Defence counsel confirmed Ms. N.B. had been seeing a psychotherapist about this incident. Ms. N.B. said she was continuing to see the therapist, even now. Defence counsel asked Ms. N.B. whether many of the recollections she had were with the assistance of talking to her therapist. Ms. N.B. said, “Yes”. Ms. N.B. said after she told Mr. K.N. to get off her, it took 5 to 10 seconds for Mr. K.N. to get off her.

She again said that she was in “flight mode” and she disassociated quite a bit. She did not recall Mr. K.N. asking her (for sex) and her agreeing to it. She said her thoughts at the time were “is this really happening”. She also thought - is this what being raped is like? [ 41 ] In direct, Ms. N.B. said when she was in the bathroom, she wiped semen coming from her vagina. She looked for her underwear because she wanted to leave but she could not find them. However, she found her dress, bra and her shoes. Ms. N.B. was afraid to leave the bathroom. However, she did leave.

She could not find her handbag, so she asked Mr. K.N. where her handbag was. He got it for her. Her cell phone was in her handbag. After receiving her handbag, she left Mr. K.N.’s apartment. [ 42 ] In cross-examination, defence counsel asked Ms. N.B. what happened immediately after she got off the bed. Ms. N.B. agreed she went straight to the bathroom and spent some time in the bathroom getting dressed. She was able to put on her dress, bra, and shoes. However, she could not find her underwear. Defence counsel asked Ms. N.B. if Mr. K.N. asked her whether she wanted him to drive her anywhere.

She did not remember that. As far as she recalled, Mr. K.N. never asked that question. [ 43 ] In cross-examination, Ms. N.B. said she found her own way out of the apartment building and called 911. When she left the apartment, she had on her dress, her shoes, and her bra. As far as she could remember, Mr. K.N. said nothing to her when she left. She did not see anyone when she left the apartment. As far as she knew, there was no one else there. She agreed with defence counsel’s suggestion that she was not crying when she left the apartment. [ 44 ] During cross-examination, Ms. N.B. agreed the last time she saw Mr.

K.N. was that morning. She agreed she never told Mr. K.N. she had a boyfriend. When defence counsel asked why not, Ms. N.B. said it had not come up in the conversation, and she was not in the habit of blurting out that she had a boyfriend. [ 45 ] Defence counsel also asked Ms. N.B. several questions about the examination at Vancouver General Hospital. Ms. N.B. agreed the primary reason she was taken to hospital was to have a sexual assault investigation. Ms. N.B. agreed she was not injured in any way. However, she noted that Mr.

K.N. had not used a condom, so she was given a number of pills for possible infections. [ 46 ] In cross-examination, Ms. N.B. agreed that the police took a formal statement from her a few days later. As she understood it, Detective Constable Ludeman was watching from another room. However, a woman police officer conducted the formal interview. Ms. N.B. agreed she had the opportunity to review the statement she gave to the police. However, Ms. N.B. said she had not been able to bring herself to really look at it. She found it very hard to go through it. It was a sensitive subject. Ms.

N.B. said she looked over the document approximately the week before she testified, but she did not really go over all of it. [ 47 ] Defence counsel asked Ms. N.B. to read over a passage from that interview, which dealt with the time when Mr. K.N. was not in the apartment and Ms. N.B. had a shower. According to what was read out in court, in that part of Ms. N.B.’s statement to the police she described throwing pillows on the floor, making a bed on the floor, and falling asleep. She was half-asleep and the next thing she remembered was that Mr. K.N. put her in his bed. Ms.

N.B. said she was half-asleep, way too drunk and was like – what are you doing. Mr. K.N. said it is “Okay” and Ms. N.B. said she was “like, whatever”. Then she just did not remember. Ms. N.B. told the police officer that she did not know if she just did not remember or if her mind would not let her remember. It was “kind of like really, you know, unclear what happened next”. Ms. N.B. did not know at which point Mr. K.N. took off her underwear and the T-shirt. She remembered him on top of her. She did not know why she did not do anything . Ms.

N.B. agreed with defence counsel that this was what she said when the police interviewed her. She explained that the reason she did not do anything was because she, “….disassociated, went into that flight mode”. Ms. N.B. acknowledged she saw a psychotherapist to help her with her trauma. [ 48 ] Defence counsel suggested to Ms. N.B. that, because of the assistance from the psychotherapist, Ms. N.B. was able to sort of piece together what had happened. Ms. N.B. said by working with the psychotherapist she was able to identify why she did not do anything. Ms. N.B. said she knew she did not do anything initially.

She was trying to identify why. She did kind of piece together everything. Therefore, it was more trying to come to terms with everything that happened. Defence counsel specifically asked Ms. N.B. whether she was able to say that what occurred was a non-consensual sexual assault, and that she gave Mr. K.N. no permission to have sexual relations with her. Ms. N.B. agreed that was the case. Ms. N.B. agreed to defence counsel’s follow-up question that Mr.

K.N. would not be accurate if he said she took her clothes off, that the sexual relations were consensual, that she allowed him to give her oral sex, and that she allowed him to penetrate her. [ 49 ] In her direct testimony, Ms. N.B. said she was outside, near the apartment complex, when the police arrived. She was close enough to the apartment complex that she could see it from the location where she met the officer. She pointed out the apartment to the officer. [ 50 ] In cross-examination, Ms. N.B. confirmed she remembered leaving the apartment after the incident with Mr. K.N. She ran into the street. Ms.

N.B. believed she called the police by dialling 911 when she was still in the foyer. She noted that in the recorded 911 statement, she told the call-taker that she could not get out. Ms. N.B. told defence counsel she remembered making the 911 call. She also explained that she had received a copy of the 911 call transcript. However, she had only glanced at it, but not read it. She found it difficult to read through.

[ 51 ] Defence counsel asked Ms. N.B. some questions about her discussion with the police officer at the scene. Defence counsel also reviewed the transcript of the 911 call Ms. N.B. made. Ms. N.B. agreed that in the 911 call she initially said, “I think I have just been raped”. The 911 call, which was read into the trial record, documented that Ms. N.B. also said, “I think he just raped me”, several times in response to questions from the dispatcher. In response to defence counsel’s questions, Ms. N.B. said she thought saying, “I’ve been raped” was a hard thing to say. Ms.

N.B. also said perhaps she used that phrase to make it seem less scary to herself. She did not want to admit what had just happened. [ 52 ] In response to another question in cross-examination, Ms. N.B. said she had no reservations about having made the 911 call. At the time, she did not know where she was. Ms. N.B. said she did not know whether she would have called the police if she had been in her own country and in her surroundings. Ms. N.B. said she would have wanted to get home and maybe report it the next day. However, she did not feel she had a choice. She did not know if Mr.

K.N. was following her or not. At the time, she was panicked and scared. She felt she had no choice but to call the police. [ 53 ] Defence counsel followed up with several questions, including confirming that when Ms. N.B. asked Mr. K.N. to get off her, Mr. K.N. did so. Ms. N.B. agreed that after she told Mr. K.N. to “Get off ” her, he did . She also agreed that when she got dressed and asked him to get her handbag, he did that too. He did not stand in the door or say that she could not go or in any way physically intimidate her. However, Ms. N.B. said she felt intimidated by what had just happened.

She said, in hindsight, there was no reason why she should have thought Mr. K.N. was chasing her. However, at the time she was in a bit of a panic. [ 54 ] After meeting with the police officer, Ms. N.B. was taken to Vancouver General Hospital and admitted to the emergency ward. At the hospital, they did an examination. That all took time. When medical staff were finished, two female officers took Ms. N.B. back to her accommodation. Mr. K.N.’s evidence [ 55 ] Mr. K.N. testified that on the evening of August 24, 2018, he left his apartment around 11 PM and went to downtown Vancouver.

He believed that he arrived 5 or 10 minutes later. He went to the Studio where he met Ms. N.B., who was there with two of her friends. He spoke to them at the bar. When they went to the dance floor, he joined them. About 10 minutes later, Ms. N.B. and her friends decided to go elsewhere. He asked Ms. N.B. for her phone number and texted her his cell number. He told Ms. N.B. that perhaps they could go for some food or something another time. [ 56 ] In cross-examination, Mr. K.N. confirmed he had spent 8 to 10 minutes with Ms.

N.B. at the bar in the Studio, and then maybe another 10 minutes on the dance floor, when he was dancing with her and a group of other people. He confirmed that the phone number shown on a screen shot of a text message was his old phone number. Mr. K.N. agreed he sent a text to Ms. N.B., but said that he never received her message back. [ 57 ] After Ms. N.B. and her friends left, Mr. K.N. stayed at the Studio about another 10 minutes and then left. On his way out, he met two old friends. He chatted with them for about 15 minutes. He was still in front of the Studio on Granville Street when Ms.

N.B. and her two friends passed by. He called out Ms. N.B.’s name. Ms. N.B.’s friends said they were going to leave. Mr. K.N. asked Ms. N.B. if she was going to go home as well. She told him that she would rather stay. Mr. K.N. testified he told Ms. N.B. he was going to go home too. However, he said Ms. N.B. replied she wanted to party some more and, if he could stay, that would be nice. [ 58 ] In cross-examination, Mr. K.N. confirmed he spoke to two of his friends out on the street across from the Studio. Ms. N.B. and her two friends passed by and he called out to her using her name.

There was a conversation about Ms. A.M. and Ms. N.B.’s other friend leaving. Mr. K.N. remembered the male friend said he was feeling sick and drunk and wanted to go home. The female friend, Ms. A.M., said she was going to take the male friend home. Mr. K.N. remembered Ms. N.B.’s female friend asking Ms. N.B. if they were going to go together. Ms. N.B. said, “No”; she would rather stay and have some fun. Mr. K.N. said he did not understand that Ms. N.B. was staying with her friend. However, he remembered that during the course of the evening, Ms.

N.B. said maybe she could go back to her friend’s house. [ 59 ] As Mr. K.N. was chatting to Ms. N.B. and her friends, he asked where they lived. He did not remember, but it was too far. Mr. K.N. said he did not know what Ms. N.B. would do, if she did stay. However, Ms. N.B. replied she just wanted to party. After Ms. N.B.’s friends left, he remained alone with Ms. N.B. He told her if she wanted to party, they could go back to the Studio. That is what they did. However, she got bored and did not like the music, so they left. [ 60 ] In cross-examination, Mr. K.N. remembered that Ms.

N.B. told him she lived in Coquitlam. He was certain she did not say it was Delta. Based on that, he told Ms. N.B. it was too far for him to drive her home. At that point, Mr. K.N. also told Ms. N.B., if she could not get home, one option would be that she could go to a hotel. He agreed with the Crown’s suggestion that, at that point, there was no suggestion Ms. N.B. could go to his apartment. He also said Ms. N.B. was okay with his suggestion that he was willing to take her to a hotel, if needed. [ 61 ] In cross-examination, Mr. K.N. also said that after Ms.

N.B.’s two friends left, he ended up going back to the Studio with Ms. N.B. They stayed there for a little while and then Ms. N.B. was bored so they both left the Studio. [ 62 ] In direct, Mr. K.N. said after they left the Studio, Ms. N.B. ran into three men she said she knew. She talked to them. However, Mr. K.N. said while she was talking to the three men, Ms. N.B. was holding his hand in a manner, which suggested to him that she did not want him to leave. The three men said they were going to the Cinema. Mr. K.N. said Ms. N.B. asked him if he could go with her. He agreed, so they went to the Cinema.

The three men Ms. N.B. had been speaking with went to the Cinema too. [ 63 ] Mr. K.N. did not remember what time they went to the Cinema. When they got there, they went straight in. Ms. N.B. wanted a drink, so she went to the bar. When they were at the Cinema, Ms. N.B. left for a short while to talk to the three men she had met earlier. In the meantime, he made new friends, two Japanese girls who were there with two male friends. Mr. K.N. said at about this point Ms. N.B. came back. He remembered her saying, “Oh that is where you are”. Mr. K.N. told her he was there if she needed him.

She left again, but then came back. Ms. N.B. wanted to dance. Mr. K.N. asked the Japanese girls and their male friends if they wanted to dance as

well. So all of them went to the dance floor and danced for a short time. [ 64 ] In cross-examination, Mr. K.N. confirmed that he in direct he described Ms. N.B. during the time they were in the Cinema. They were just hanging out, talking, and dancing. He also was talking to the Japanese girls. They were all hanging out, like people who had just met. [ 65 ] In direct, Mr. K.N. said Ms. N.B. got bored with dancing, so he suggested they play some of the games available at the Cinema. He and Ms. N.B., the two Japanese girls, and one of their male friends went and played foosball for money. Mr.

K.N. said they must have gone back to the dance floor at some point. Ms. N.B. was also talking to the three men she had met early on. However, Mr. K.N. said she kept coming back to check up on him. Mr. K.N. said Ms. N.B. checked up on him repeatedly. He also said Ms. N.B. told him she did not want him to leave without her knowing. Mr. K.N. said they started hanging out with the Japanese girls, and talking, and dancing. At that point, Mr. K.N. felt there was a lot of “chemistry” between him and Ms. N.B. He thought she was interested in him.

He was also letting her know he was interested in her. [ 66 ] In cross-examination, the Crown asked Mr. K.N. what he meant when he said there was a lot of “chemistry” between him and Ms. N.B. Mr. K.N. said he got that impression from the conversations they were having or the body language. In particular, Mr. K.N. said sometimes they were “touchy feeling”. He was not sure if that was the right word. It was just the “chemistry” of it. He did not know how to explain the chemistry. Mr. K.N. said both of them were putting their hands around each other. [ 67 ] In direct, Mr. K.N. said, at some point, Ms.

N.B. asked him if they could go somewhere else. Mr. K.N. told her it was a little late for him because he had to go to work the next day. Defence counsel asked Mr. K.N. about videos entered into evidence, which showed some scenes at the Cinema. Mr. K.N. said those videos were accurate, as far as he could tell. Defence counsel noted there appeared to be a lot of touching between him and Ms. N.B. Mr. K.N. said the video depicted things accurately. They felt a lot of chemistry together. He remembered a specific incident when Ms. N.B. got him to climb on her back. Mr.

K.N. said she was playing with the three men she had met earlier. Mr. K.N. told her that she was very strong. Ms. N.B. said she could lift him up. He claimed he was too heavy and was very hesitant. Mr. K.N. thought Ms. N.B. believed she was really strong and really tough. [ 68 ] Mr. K.N. said when Ms. N.B. told him she wanted to go somewhere else, he told her he had to go home. Both Japanese girls said they were going home as well. One of them said she could walk home from the Cinema; the other one said she lived by the Renfrew Skytrain station. Mr. K.N. told her that was not far from his house.

He was driving so, if she wanted, he could give her a ride home. Mr. K.N. asked Ms. N.B. if she was going to go to her house. She told him she lived in Coquitlam. He said that was too far for him. However, he told Ms. N.B. he would find somewhere else for her to stay or she could go to his house if she wanted. Ms. N.B. responded that was okay. [ 69 ] In cross-examination, the Crown asked Mr. K.N. whether they left the club because it was closing time. Mr. K.N. said, “No” it was because Ms. N.B. was bored and wanted to go somewhere else.

He wanted to go home and the Japanese girls said the same thing, so that is why they ended up leaving. The Crown also asked Mr. K.N. to explain his evidence about Ms. N.B. asking Mr. K.N. to climb on her back. He said Ms. N.B. did not lift him or try to lift him. Ms. N.B. wanted to try, but he felt they would both fall down. [ 70 ] Mr. K.N. said when they were outside the Cinema they talked again. He told Ms. N.B. and the Japanese girls that if anyone wanted to go anywhere different he could drive, but he told them the direction in which he was heading. Mr. K.N. said Ms. N.B. replied she was going with him.

He said one of the Japanese girls said she wanted him to give her a ride home. Mr. K.N. remembered that the Japanese girl asked whether it was safe to drive with him. He told her, “Yes”. He understood her question to mean she was checking on him to see if he was drunk. [ 71 ] In cross-examination, the Crown asked Mr. K.N. to clarify what he told Ms. N.B. about transportation. Mr. K.N. said all he did was offer to drive Ms. N.B. anywhere she wanted to go, home or anywhere. Mr. K.N. said, at that point, Ms. N.B. told him she was okay staying with him. She was comfortable staying with him. The Crown asked Mr.

K.N. whether Ms. N.B. looked tipsy at that point. Mr. K.N. said she looked tipsy when they were in the club. The Crown asked whether “tipsy” meant that she had too much to drink. Mr. K.N. said, “No”; in his words it meant, “Just feeling nice”. [ 72 ] In his direct testimony, Mr. K.N. said he had been drinking throughout the evening, but he only had three drinks the whole night. He was feeling normal. He felt like he was under the limit. Mr. K.N. did not feel impaired in any way. He said the Japanese girl seemed normal. She was not impaired. He said Ms. N.B. looked like she was just “tipsy”, but not impaired. Mr.

K.N. acknowledged he saw Ms. N.B. drinking at the Studio and having another drink when they were with the Japanese girls. [ 73 ] Mr. K.N. said his car was parked close to the Cinema. He always likes to find parking on Smithe Street and Howe Street. The Cinema was on Smithe Street. They were able to walk to his car. Ms. N.B. went into the front seat of his car and the Japanese girl sat in the rear, right passenger seat. He then drove to his apartment in Vancouver. Mr. K.N. did not remember how long it took to drive there. There were no incidents on the way, as far as he knew.

He had conversations with the women in the car. It was mostly about Vancouver because both of them had told him they were new to Vancouver. [ 74 ] In cross-examination, the Crown asked Mr. K.N. if Ms. N.B. had her head out the window and if she was feeling sick. Mr. K.N. said “No”, on both points. However, he acknowledged he had both front windows open. He said Ms. N.B. did not even have her head close to the window. [ 75 ] In direct, Mr. K.N. said when they got to his residence, he parked in his spot on the first level of the underground parking. He remembered Ms. N.B. asking him if he had drinks at his house.

He told Ms. N.B. he did not think so. He thought that perhaps his roommate might have drunk what he had. In cross-examination, Mr. K.N. said it was the Japanese girl who asked if he had drinks at his house. The Crown asked him about that. The Crown specifically asked Mr. K.N. whether he had not said that Ms. N.B. had asked him that question. He replied it was the Japanese girl who asked whether he had drinks at his house. [ 76 ] In direct, Mr. K.N. said they went upstairs. When they got to his apartment, both women wanted to use the bathroom. Ms.

N.B. went to his ensuite bathroom and the Japanese girl used his roommate’s bathroom. Mr. K.N. explained he had a roommate, a woman who

rented space from him. He told the Japanese girl to be quiet because his roommate would be sleeping. As far as he was aware, his roommate was at home. Mr. K.N. said the two women were in the bathrooms about two minutes or so. The Japanese girl came out first. When she came out of the bathroom, she said she would rather go home. She told Mr. K.N. his house was too quiet. [ 77 ] While Mr. K.N. was having this conversation with the Japanese girl, Ms. N.B. came out of the bathroom as well. He said the three of them had a discussion. The Japanese girl wanted to leave.

He told her that she could take a taxi or he could drive her. She told Mr. K.N. she did not have money for a taxi. He asked Ms. N.B. if she wanted to go home too. Ms. N.B. said, “No”, she was comfortable. He also told Ms. N.B. he was going to drive the Japanese girl home and asked Ms. N.B. if she wanted to go with him. Ms. N.B. said she would rather stay because she was comfortable where she was. [ 78 ] In cross-examination, the Crown asked Mr. K.N. what happened to the drinking. He said that the Japanese girl used the bathroom and then wanted to go home.

He said early on “they” thought his house was boring and quiet. He could not remember who actually said those words. Mr. K.N. said both girls went to the bathroom, but the Japanese girl came out first. When he was having a conversation with the Japanese girl, Ms. N.B. also joined in. [ 79 ] Defence counsel asked Mr. K.N. about Ms. N.B.'s condition. Mr. K.N. said he was not aware at the time that Ms. N.B. was feeling ill or that she had vomited while she was in the bathroom. Mr. K.N. said before arriving at the apartment and before she went into the bathroom, Ms. N.B. seemed normal. Mr. K.N. said Ms.

N.B. was joking a lot. He did not have to assist her at all when she went from the car to the apartment. Mr. K.N. also said he did not have to assist Ms. N.B. at all during that evening. The Japanese girl did not assist her in any way either. [ 80 ] In cross-examination, Mr. K.N. said after the Japanese girl told him she wanted to go home, he asked Ms. N.B. if she wanted to go home, but she did not. When he left, he showed Ms. N.B. where his bedroom was. He told her she could feel comfortable and feel at home. Mr. K.N. said he specifically told Ms. N.B. he would be back.

In cross-examination, the Crown confirmed with Mr. K.N. that he had a couch in the living room. The Crown asked Mr. K.N. whether he offered the couch to Ms. N.B. he said that he told Ms. N.B. to feel at home but he showed her where his bed was. He said when they were talking they were standing in the dining room and Ms. N.B. could see his couch. [ 81 ] In direct, Mr. K.N. said he took the Japanese woman home. At some point, she told him she felt comfortable being left at the Renfrew Skytrain station. Mr. K.N. told her he could drop her off right at her house because it was late and for safety reasons.

However, the Japanese girl told him she did not know him, so she would rather be dropped off by the skytrain station. Therefore, he dropped her off at the Renfrew Skytrain station, which is in Vancouver. Mr. K.N. said once he dropped her off, he went back home. He wanted to sleep for an hour or two so that he could go to work the next day. He did not recall the timeframe for taking the Japanese girl home. However, he went straight to the skytrain station from his house and straight back to his apartment. He said usually, if he drives that area, it might take him 12 to 14 minutes.

His apartment was approximately 6 kilometres from the Renfrew Skytrain station. [ 82 ] In direct, Mr. K.N. said when he got back to his apartment, he found Ms. N.B. in what he described as, “a bed nest”. She had put blankets and a pillow on the floor. Mr. K.N. said he told Ms. N.B. that he was going to sleep for an hour or two. He asked Ms. N.B. if she wanted to join him in the bed instead of sleeping on the floor. Mr. K.N. said she was “okay” with that. Defence counsel asked Mr. K.N. some questions about the details of this interaction. Mr.

K.N. said his bedroom was illuminated because he always leaves the curtains open on the window that leads to his balcony. Mr. K.N. said Ms. N.B. seemed to be asleep. However, she woke up when he came in. She was wearing one of his T-shirts and her underwear. He said the bed she had made on the floor was between his bed and the window/balcony of his bedroom. The space between the bed and the window was about three feet wide. [ 83 ] Mr. K.N. said when he went into the bedroom and Ms. N.B. was sleeping on the floor, she seemed normal – like someone who had had two or three drinks.

He understood her and she understood him. Later, when they were in bed together, she did not have any difficulty perception wise. [ 84 ] In cross-examination, Mr. K.N. agreed that when he walked into the bedroom, after driving the Japanese girl to the Renfrew Skytrain station, Ms. N.B. was on the floor. She seemed to be sleeping between the window and his bed. When the Crown asked Mr. K.N. whether he had said in direct that Ms. N.B. woke up when he walked in, Mr. K.N. responded she might have woken up when he went in. He said at the time she had a T-shirt on and her underwear. [ 85 ] In direct, Mr.

K.N. said that while he was speaking to Ms. N.B., he was standing by the foot of his bed. He also said, “I remember saying I can go sleep on the couch.” According to Mr. K.N., Ms. N.B. said she could go into the bed with him. He got into bed and Ms. N.B. joined him. She climbed into bed from the side where she had been sleeping on the floor. Mr. K.N. said he told Ms. N.B. that he slept naked all the time. She said that was okay. [ 86 ] In cross-examination, the Crown asked several questions about how Ms. N.B. ended up in his bed and the surrounding circumstances. Mr. K.N. said he asked Ms.

N.B. to sleep on the bed and she said okay. At that point, he was dressed. He was starting to undress. He told Ms. N.B. that he slept naked and then she went into the bed. The Crown asked how long it took Ms. N.B. to get into bed after they had that conversation. He said about a minute. Mr. K.N. said she was already on the bed when he had slowly undressed and was naked. [ 87 ] In cross-examination, the Crown repeated what it understood his evidence in direct to be on one specific point, namely, that he was going to lie on the bed or he could go sleep on the couch. Mr.

K.N. said that conversation occurred before Ms. N.B. went onto the bed. He acknowledged that he told Ms. N.B. he was going to lie in the bed and that she could lie in the bed too, or he could go sleep on the couch. The Crown double-checked to see if Mr. K.N. definitely told Ms. N.B. that. He answered, "Yes". The Crown probed further and asked Mr. K.N. whether he definitely gave Ms. N.B. the option of sleeping in his bed or sleeping on the couch. Mr. K.N. said he did. The Crown then asked Mr. K.N. why he did not say he could sleep on the couch. Mr. K.N. said he did not think about asking that.

The Crown asked that question again. Mr. K.N. said he did not think about sleeping on the couch himself. Mr. K.N. said he told Ms. N.B. that he was going to be sleeping on the bed and then asked Ms. N.B. if she wanted to sleep on the bed too. [ 88 ] In cross-examination, the Crown also asked Mr. K.N. whether he told Ms. N.B. that he slept naked because he wanted to have

sex with her. Mr. K.N. said he did not; he usually sleeps naked. The Crown suggested that he had just met Ms. N.B. and wondered why all of a sudden he was telling her that he slept naked all the time. Mr. K.N. said that is what he did. [ 89 ] In direct, Mr. K.N. said that he and Ms. N.B. were lying in bed. Perhaps a minute or two later, Ms. N.B. asked him, “Do you want to cuddle?” Mr. K.N. said, “Okay” and they started to cuddle. He described what they did as “spooning”. Mr. K.N. said after two or three minutes of spooning, they started fondling. At one point, Ms. N.B. turned to face him. They started to kiss.

They fondled some more. Mr. K.N. said they kissed for about 5 to 10 minutes. He then asked Ms. N.B. if he could give her oral sex. She said, “Okay”. Mr. K.N. said he gave Ms. N.B. oral sex for perhaps another 5 to 10 minutes. [ 90 ] According to Mr. K.N., in direct, while he was giving her oral sex, Ms. N.B. kind of suggested to him that he should go up to her face. She kind of nudged him. He described what he meant by saying that Ms. N.B. put her palms underneath his armpits and kind of pulled him up, or suggested that he come to her face level. When he did that, Mr. K.N. said Ms.

N.B. asked him, “Do you want to come inside me?” Mr. K.N. said, “Okay, I can do that”. By that, Mr. K.N. meant he inserted his penis into her vagina. According to Mr. K.N., after about two minutes, Ms. N.B. “ejaculated” and a minute after that she said, “Stop”. [ 91 ] Mr. K.N. said once Ms. N.B. said, “Stop”, he asked Ms. N.B. if she was okay. She answered, “No just stop”. Mr. K.N. said he stopped. Defence counsel asked Mr. K.N. to explain what he did next. Mr. K.N. said he removed his penis from her vagina. Defence counsel asked him if he ejaculated. Mr.

K.N. said unfortunately, when he was removing his penis from her vagina, he ejaculated a little bit on Ms. N.B.’s belly. [ 92 ] In direct, Mr. K.N. said Ms. N.B. then got up and went to the bathroom. She was in the bathroom for about three or four minutes. She came out and asked where her handbag was. Mr. K.N. could not find it, but he remembered seeing it on the dining room table. He got the handbag and gave it to her. At that point, Ms. N.B. was dressed. She was wearing her bra and her underwear. After she got her handbag, Ms. N.B. said she wanted to leave. Mr. K.N. asked her if everything was, “Okay”.

She said, “Yeah – now I want to leave”. Mr. K.N. told Ms. N.B. he could not drive her home right then, but she could stay over. Ms. N.B. said she wanted to leave and started walking out. Mr. K.N. was only wearing his underwear, so he only managed to walk her out to the door and then she left. Mr. K.N. said, at that point, he was very confused. It seemed weird to him that they got along the whole night and Ms. N.B. wanted to have sex, but then all of a sudden she wanted to go home. [ 93 ] Later in direct examination, defence counsel asked Mr. K.N. to provide a more detailed description of what Ms.

N.B. was wearing. Mr. K.N. said when she got on the bed she had a T-shirt on (it was one of his) and her panties. When they were cuddling, she was still wearing the T-shirt and the underwear. It was when they started fondling that Ms. N.B. removed the T-shirt. Mr. K.N. then asked Ms. N.B. if he could remove the underwear and she said, “Okay”. That happened when he was going to give her oral sex. He removed the underwear. He thought they threw the clothes on the floor. Accordingly, when she got off the bed later, before going to the bathroom, she was naked.

When she came out of the bathroom, about four minutes later, to ask for her handbag, she was dressed. [ 94 ] In direct examination, defence counsel specifically asked Mr. K.N. about Ms. N.B.’s testimony that Mr. K.N. had picked her up like a baby and put her on the bed. Mr. K.N. said that never happened. He would not have been able to lift Ms. N.B. Mr. K.N. said he is very weak on his right side. In general, on a day-to-day basis, he can only lift about 25 pounds. He said this is because he has a disability on his right side. His right hand and right arm muscles are smaller and weaker than his left side.

He has an imbalance. If he were to lift something heavy, he could actually hurt himself or fall. Additionally, Mr. K.N. said that the space between the bed and the window, where Ms. N.B. was lying on the floor, was about three feet wide. Even if he had wanted to, he could not have gotten into that space and lifted Ms. N.B. from the floor to the bed. [ 95 ] In direct, Mr. K.N. said after Ms. N.B. left that day, he did not see her again. He slept for about 20 or 30 minutes. Then he got up to get ready for work. However, he did not have time to shower. Mr. K.N. went to work. His intention was to call Ms.

N.B. later to see if she was okay. However, he was so busy at work that he did not have time. Around noon, he was coming back from his lunch break, when he saw two police officers standing by his desk with one of the managers. One of them told Mr. K.N. they would like to speak with him. They started to leave to go outside to talk. His manager asked if he was coming back. They (or one of them) said they did not know. When they got outside, they told him there was an allegation against him of sexual assault. They did not tell him who the alleged victim was. [ 96 ] The police then put him under arrest.

The officers placed him in handcuffs, with his hands behind his back. He remembered telling the police that he had a hard time because of his disability. The officers told him they would make it comfortable. It was going to be a short drive to the police station. However, Mr. K.N. said it was very uncomfortable for him. At one point, they stopped and tried to readjust or loosen the handcuffs. [ 97 ] In direct, Mr. K.N. said he was put into a small cell at the police station. Later they moved him to a different cell where they took pictures of him and fingerprints.

They told him to change into a tracksuit and took his clothing away. Later still, officers also attended to take forensic evidence, which included fingerprints and a penile swab. Once the police obtained the forensic evidence, they told him he could talk to a lawyer. They moved him to a phone booth area and they dialled legal aid for him. At first, they gave him a headset, which was not working. They also tried to give him a handset receiver. A police officer held the handset receiver while Mr. K.N. put it to his shoulder. He was still in handcuffs at this point. [ 98 ] Mr.

K.N. said they placed him in another cell and gave him a box of juice and a nutrition bar. Apparently, that was all they had. Mr. K.N. tried to get some sleep because he had no sleep the previous night. Later, Detective Constable Ludeman came in and told Mr. K.N. there was going to be an interview. Officers took Mr. K.N. to another building for the interview. Detective Constable Ludeman formally interviewed him. Defence counsel asked Mr. K.N. whether the interview, which was reviewed in court, was true and accurate. Mr. K.N. said he only remembered the interview after seeing it in court. Mr.

K.N. agreed with defence counsel that, as far as he could tell, the recording of the interview was accurate. He could not remember exactly how long the interview lasted, but it was over an hour. Defence counsel put to Mr. K.N. in direct examination that Mr. K.N. did not tell Detective Constable Ludeman what had happened in his apartment in the way he did in court during the trial. Mr. K.N. agreed he did not tell Detective Constable Ludeman about that.

[ 99 ] Mr. K.N. said Detective Constable Ludeman had arranged for him to speak to another legal aid lawyer. Mr. K.N. did not remember much of the conversation he had with the person to whom he spoke. However, Mr. K.N. thought that person might have told him to say nothing or not to say much. When Mr. K.N. went back to the interview with Detective Constable Ludeman, the officer kept encouraging him to answer questions and to talk to him. Mr. K.N. felt very uncomfortable talking to the officer. Mr. K.N. said he was confused about whether he should talk to Detective Constable Ludeman or not. Mr.

K.N. said he had the indication or thought he was supposed to give a statement. Therefore, he was very confused. [ 100 ] Defence counsel, in direct, asked Mr. K.N. about his state of mind. Mr. K.N. said he was confused. As well, at the time, emotionally, he was feeling very tired, hungry, and very sleepy. Mr. K.N. said he had never been arrested by the police before. He was confused by everything that happened that day. He was really confused and trying to figure out what was going on. [ 101 ] Defence counsel in direct, specifically asked Mr.

K.N. why he did not tell Detective Constable Ludeman what had really happened as revealed to this Court in Mr. K.N.’s testimony at trial. Mr. K.N. said he knew what had happened the previous night, where he had gone, and what he had done. However, he did not understand about the whole sexual assault issue. The legal aid lawyer he spoke with told Mr. K.N. that he should not say anything. However, Detective Constable Ludeman kept encouraging Mr. K.N. to say something. Therefore, Mr. K.N. said he was confused.

Should he tell the officer everything or should he not tell him everything and wait for when he got to court? He could not remember whom, but someone, told him he was going to go to court. He guessed that it was a legal aid lawyer he spoke with, who told him not to say anything until he got to court. [ 102 ] Mr. K.N. said he thought he should tell the officer something because otherwise the officer was not going to stop. That is why he told Detective Constable Ludeman some things, but did not tell him the whole story. Mr. K.N. said he did not know what he was supposed to do.

He did not have any notion about what was going to happen to him that day. Mr. K.N. thought he was not going to be released until he saw a judge. Mr. K.N. said it was implied to him that he was going to go to court. However, he had no idea when that would happen .

Summary of evidence of selected witnesses Ms. A.M. [ 103 ] Ms. A.M. testified she and Ms. N.B. made contact through the CouchSurfer app. They arranged to meet on the evening of August 24, 2018. Ms. A.M. was planning to hang out with some other people she had met on CouchSurfer. She invited Ms. N.B. along. The plan was that Ms. N.B. would stay at Ms. A.M.’s apartment after the evening out. That evening, Ms. N.B. arrived at Ms. A.M.’s apartment in the Kitsilano area of Vancouver, probably after supper. Ms. A.M. said they did not arrive in downtown Vancouver until approximately 10:00 PM or so. [ 104 ] Ms.

A.M. did not recall the name of the club they went to first. When she was asked directly if the first club was called the Studio she said “Yes”. That club/bar was where she was going to meet other people from CouchSurfer. They were all strangers to Ms. N.B. Ms. A.M. said they stayed at that first club for about one or two hours. At the first club, Ms. N.B. made contact with a person, who was later identified as Mr. K.N. Ms. A.M. said neither she nor Ms. N.B. had any alcohol at her apartment. At the Studio, Ms. N.B. drank alcohol. Ms. A.M. could not remember exactly how much Ms. N.B. drank.

She did not think it was anything crazy. [ 105 ] After that, she and Ms. N.B. went to another club. That club was Dublin Calling. They stayed at that second club for about an hour. Ms. A.M. believed they only went to two bars/clubs. They then went back to the first bar/club, the Studio. She could not remember if it was because some people they knew were going there or because they liked the atmosphere better. When they went back to the Studio, Ms. A.M. met a friend she knew. He was super intoxicated and she was trying to get him home. [ 106 ] Ms. A.M. recalled that at one point “we” went to a McDonald’s. Ms.

N.B. went along as well. They bought food at McDonald’s. Ms. A.M. said Ms. N.B. ate as well. After they left the McDonald’s, they were out on the street for a while trying to get a cab. Ms. A.M. thought that this was about 1:00 AM or 1:30 AM, when the bars were closing. Ms. A.M. thought they might have stood around waiting for about 10 or 15 minutes. She and her male friend left. However, Ms. N.B. wanted to stay. Ms. A.M. said she arranged that Ms. N.B. was to text her when Ms. N.B. got back to the apartment and Ms. A.M. would let her in. [ 107 ] Ms.

A.M. said it was about a 20-minute drive back to her apartment in Kitsilano. When she got home, Ms. A.M. sent a text to Ms. N.B. asking her if was, “still good”. Ms. N.B. replied by text that she was, “still kicking”. Ms. A.M. thought this was about 2:00 AM, which was shortly after she arrived at her apartment. Ms. A.M. did not hear from Ms. N.B. again until 7:00 AM, when she texted Ms. N.B. to ask where she was. Ms. N.B. responded she was in the hospital. Ms. A.M. could not remember exactly what Ms.

N.B. told her, but she paraphrased it was something like, “I got assaulted and am at the hospital”. [ 108 ] Before Ms. A.M. left downtown to go home, she saw Ms. N.B. talking with three men. One of them was later identified as Mr. K.N. She described him and his physical appearance. She also recalled he told her he was from Zimbabwe. Ms. A.M. spoke to Mr. K.N. outside on the street at about the time they were at McDonald’s. Ms. A.M. said her observation of Ms. N.B.’s interaction with Mr. K.N. was that Ms. N.B. was not flirting. She did not remember them dancing.

She did not remember hearing any conversation between them. Ms. A.M. said when she left Ms. N.B. on Granville Street, Ms. N.B. was pretty intoxicated, but still functioning, still standing. Ms. A.M. said Ms. N.B. was very insistent that she did not want to go back to Ms. A.M.’s apartment. Ms. A.M. was concerned, but she could not force Ms. N.B. to leave. [ 109 ] In cross-examination, Ms. A.M. acknowledged she was with Ms. N.B. approximately three or three and one half hours. Ms. N.B. was not with her constantly. Ms. N.B. was moving around and speaking to other people.

They were hanging out because of connections on CouchSurfer so there were about five or six people Ms. A.M. knew through that app. [ 110 ] In cross-examination, Ms. A.M. was asked about an 18-page statement she gave to the police on August 27, 2018. She had reviewed that statement before testifying. Ms. A.M. acknowledged that statement was accurate. In it, she told the police that Ms. N.B. decided she was not going to go home with her and her male friend. Ms. A.M. also told the police she told Ms. N.B. that she might fall asleep, because Ms. A.M. is a heavy sleeper.

Therefore, she might not wake up to be able to let Ms. N.B. into her apartment. Ms. N.B.

told Ms. A.M. that she was an adult, that she was good, and that she was fine to be by herself. [ 111 ] In cross-examination, defence counsel suggested to Ms. A.M. that during the interview she told the officer that she (Ms. A.M.) was moderately intoxicated. However, she was the most sober. Ms. A.M. said she was trying to take Ms. N.B. and a male friend home. She also told the officer that she felt Ms. N.B. was at the same level of intoxication as she was. However, Ms. N.B. was still eager to go out and party. Ms. A.M. recalled that response and it was accurate. Ms.

A.M. agreed that in the statement, she told the officer that Ms. N.B. was at the same level of intoxication as she was. However, Ms. A.M. noted that it was hard to gauge someone else’s level of intoxication. Ms. A.M. was not entirely sure about someone else’s level of intoxication. [ 112 ] Defence counsel asked Ms. A.M. about what she told police in her statement about Ms. N.B.’s interaction with Mr. K.N. Ms. A.M. told the officer that Mr. K.N. was someone Ms. N.B. met at the Studio. Ms. N.B. was talking to him all night. The officer asked Ms. A.M. if Ms. N.B. and Mr. K.N. had hit it off from the outset. Ms.

A.M. told the officer she would not say that. She knew Ms. N.B. had a boyfriend. She did not think Ms. N.B. was trying to pick the man up or anything like that. Ms. A.M. did not see them dancing. She just saw them talking. Ms. A.M. also said in direct, and confirmed in cross, that Ms. N.B. was not flirting. However, she agreed that although she saw them, she did not hear what they were saying. Ms. A.M. reached the conclusion that they were not flirting based on their body language. Ms. A.M. agreed with defence counsel that she left downtown at about 1:30 AM.

She did not know what happened after she left. [ 113 ] Defence counsel asked Ms. A.M. about what happened outside the McDonald’s. She agreed it was outside the McDonald’s that Ms. N.B. spoke to Mr. K.N. Ms. A.M. said she did not see Ms. N.B. and Mr. K.N. holding hands. She acknowledged it was a possibility they could have been, but that was unlikely. Ms. A.M. agreed she did not see them the whole time, so it was a possibility. Constable Joshua Reynolds [ 114 ] Constable Reynolds was patrolling alone on the early morning of August 25, 2018.

At approximately 4:37 AM, he received a broadcast over the radio to go to the 2600 block Penticton and 10 th Avenue in Vancouver. He arrived there approximately 10 minutes later at 4:47 AM. He saw Ms. N.B. at the corner of 10 th Avenue and Penticton. She was on the phone with the police dispatcher. She was visibly upset, crying, and hysterical. Constable Reynolds said he was in a marked police car when he approached her. As he got closer, he could hear Ms. N.B. speak. He heard her say, “I’ve been raped”. [ 115 ] Constable Reynolds smelled an odour of liquor emanating from Ms. N.B.

However, he said he heard her speaking clearly. He could understand what she was saying. To his mind, Ms. N.B. was coherent. The Crown asked Constable Reynolds if he observed any indicia of impairment. Constable Reynolds said he could smell liquor and there was a slight slur to her words, which did not prevent him from understanding her. He noted she had an accent. Ms. N.B. told him she was from New Zealand. He did not see any visible injuries on her. Constable Reynolds said she looked obviously tired at the time. However, to his mind, she did not seem drowsy.

She appeared scared and upset; that was the main thing he noted. [ 116 ] Constable Reynolds said Ms. N.B. had a difficult time describing the building where she had been. She said the building was a tower. She also said it had a courtyard and gates. She got into the police car with the officer and they drove around. Ms. N.B. pointed out to a large gate on the south side of 10 th Avenue. This was the 2400 block, where there was a large gated complex with two towers and a courtyard in the middle. The address was 2468 East Broadway. This was the address of the building Ms.

N.B. pointed out. [ 117 ] The officer said at one point, after pointing out the building, Ms. N.B. recalled there had been a text exchanged between her and the man she had been with that evening. She showed him the text and the reply. The officer asked Ms. N.B. to take a screenshot of the two text messages. The screenshot showed that Mr.

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