R. v. Tsang, 2020 BCPC 306

Citation: R. v. Tsang 2020 BCPC 306 Date: 20200911 File No: 256243-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWIN TSANG BAN ON PUBLICATION –

SECTION 486.4(2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N. PHILLIPS Counsel for the Crown: P. Sebellin Counsel for the Accused: M. Mines Place of Hearing: Vancouver , B.C. Dates of Hearing: August 31, September 1 & 2, 2020 Date of Judgment: September 11, 2020

[ 1 ] Edwin Tsang, is charged with sexually assaulting L.B.V. on the 29th day of December 2018, in Vancouver BC, contrary to s. 271. This is the decision of the Court following a trial held in this case. [ 2 ] L. F. is a twenty-two year old university student. She has known L.B.V. since grade 8 and they are best friends. She identified the accused as a person she met for the first time on December 28, 2018. [ 3 ] On December 28, the two women had tickets for the two-day Contact Music Festival at BC Place Stadium.

L.F. recalled L.B.V. came to her house around lunchtime that day so they could prepare for the concert: getting changed; doing their make-up; and “pre- drinking”. L.F. said L.B.V. had a fair bit to drink at her home, about three cans of cider and a couple double-shots of vodka. L.F. said she had about five shots of vodka herself but said she holds her liquor better than her friend. [ 4 ] L.F. recalled one or both of her parents drove the two women to the concert around 6:00 pm. She said when they arrived, L.B.V. was fairly intoxicated and she had to help her friend negotiate her way into the event.

L.F. had a sore knee that night and was recovering from knee surgery. Neither woman drank any alcohol at the concert. [ 5 ] Once inside BC Place, L.F. said the two women met up with their friend J.. He was with them for most of the concert and danced with L.B.V. and had his arm around her. L.F. said L.B.V.’s sister knew Mr. Tsang. They met with him for the first time that evening around 9 pm and he stayed with them for about twenty minutes. She understood he was working as a photographer at the concert. L.F. said Mr. Tsang met up again with the three of them from about 11:15 to 11:45 pm. She thought Mr.

Tsang was coming on to her as L.B.V. was occupied with J.. She did not see any physical interaction between L.B.V. and Mr. Tsang that night. [ 6 ] L.F. said the two women had planned that her father would drive them home from BC Place after the concert and that he likes to pick her up to make sure she gets home safely. They had tickets for the second day of the event the following day and did not want to overdo it the first night. However, Mr. Tsang told them he could get them into an after-party event at the Commodore where an artist L.B.V. was particularly interested in seeing would be playing again.

L.F. said she was reluctant to go to the after-party but L.B.V. was keen to go so she agreed. [ 7 ] L.F. said Mr. Tsang offered them a ride to the after-party and they got into his vehicle along with another couple who were dropped off first in the West End. She said Mr. Tsang parked his car a block or two from the Commodore and he asked the two women if they would mind if he did drugs. She saw him snort a line of what she assumed was cocaine. After sitting in the car for about fifteen minutes, the three were about to go to the after-party when Mr.

Tsang insisted the two women leave their fanny packs and belongings in his car because he said it made them look like “ravers”. L.F. said she pushed back against the idea of leaving her fanny pack behind and said she did not understand the concern given that the after-party was for the rave at BC Place. She thought a little fanny pack around her waist would not make a difference in her appearance if she was already wearing fish nets and a crop top. [ 8 ] Inside the Commodore, L.F. recalled the three of them went straight to the bar. L.B.V. and Mr. Tsang got drinks and put one in front of her.

L.F. said she refused the drink and was angry because she had been planning on leaving for home shortly. She told them this and invited one of them to have her drink but did not recall if one of them drank it. [ 9 ] L.F. said the trio then danced as they stood in a line, doing their own thing. She recalled that Mr. Tsang kept trying to put his arm around her, directing his attention to her. L.F. recalled that Mr. Tsang and L.B.V. went back to the bar at some point but did not see if they bought more alcohol and that she left the event in her father’s car around this time, about 1:30 am, and went home to bed.

She recalled that Mr. Tsang had said he would drive L.B.V. home and she would grab L.F.’s bag from his car. [ 10 ] L.F. testified that around 3:00 am she received a call from L.B.V. who told her that she did not have a key to her own residence and that Mr. Tsang was going to drop her off at L.F.’s home instead. Shortly after, L.B.V. knocked on her door. When she answered the door, she noticed Mr. Tsang had already driven off. She noted that L.B.V. was standing at the door with her head down holding all of her belongings and looking kind of dishevelled.

L.F. said it was late at the time and she had been trying to sleep when L.B.V. arrived. L.F. said her friend was fairly quiet, which was unusual. When she woke up the next morning, L.B.V. had already left. [ 11 ] In cross-examination, L.F. agreed it was possible that she asked L.B.V. when she was dropped off at her house whether anything had happened between her and Mr. Tsang. She said she did not recall if L.B.V. told her she gave him a blow job but agreed it was possible. She agreed L.B.V. had messaged her that morning stating Mr. Tsang had taken advantage of her.

L.F. said L.B.V. decided she was not going to go to the second day of the event at BC Place. [ 12 ] In cross-examination, L.F. said she had about five shots of vodka at her house before the women made their way to BC Place for the concert. She said by the time she got to the Commodore after the concert, she was close to sober. She said she was not sure how many drinks L.B.V. had at the Commodore and agreed she did not see Mr. Tsang trying to coerce L.B.V. into drinking. She saw no physical contact between L.B.V. and Mr.

Tsang at the club. [ 13 ] L.B.V. told the Court on December 28th, 2018, she was twenty years old. She is currently studying sciences in university. She has known her best friend, L.F., since grade 8. L.B.V. said she became acquainted with Mr. Tsang through her sister but only through following one another on social media. She knew from social media that Mr. Tsang was going to be at the BC Place concert. Prior to the concert, she had not met Mr. Tsang in person.

Identity was not in issue at this trial. [ 14 ] On December 28th, 2018, L.B.V. said she went to L.F.’s house to prepare for the concert, arriving there around 1:00 pm. A photo taken at the house that afternoon of the two women dressed for the evening was presented to the Court. [ 15 ] L.B.V. told the Court the two women started drinking around 4:00 pm. She had three ciders and two one-ounce shots of vodka poured by her friend. She said she had intentionally not eaten a lot that day so that she would not have to drink as much.

L.B.V. said the alcohol did not hit her until she got out of the car at the event to go inside and L.F. had to help her as they entered the venue as she was having problems walking. She said they arrived at BC Place around 6:00 pm and left at 11:30 pm. She had no drugs or alcohol at the

event. [ 16 ] L.B.V. told the Court that inside the concert venue she met up with J., a man she was friends with and with whom she had a flirty relationship. She said the group danced a bit waiting for the performer she wanted to see start. She said there had been no plans to meet up with Mr. Tsang at the concert but while there messages were sent on Instagram telling Mr. Tsang where L.B.V.’s group was. He met them around 9:30 for about twenty minutes. L.B.V. said Mr. Tsang had his camera and was wearing a media pass. L.B.V. told the Court that she is 5’9 and weighs about 140 pounds. She thought Mr.

Tsang was around her height, maybe a bit taller, and he weighed about 150 pounds. [ 17 ] She said L.F. took Mr. Tsang’s phone number. L.F. wanted to go back stage and thought Mr. Tsang might be able to help with that since he was photographing the event. L.B.V. said she did not want his number and was standing with J. and he had his hands around her as they danced. She said L.F. was dancing with Mr. Tsang but she thought her friend did not want to be with him. L.B.V. said Mr. Tsang brought up that he had a guest list for an after-party where L.B.V.’s favourite act would be playing again.

L.B.V. said L.F. did not want to go to the after-party and the two had planned to take it easy the first night of the two-day concert event, but she convinced her friend to go. [ 18 ] Mr. Tsang joined up again with L.B.V.’s group around 11:00 pm and behaved as if going to the after-party was urgent. The two women, Mr. Tsang and two friends of his left in Mr. Tsang’s car from BC Place and shortly after, Mr. Tsang dropped off his two friends at a McDonald’s on Davie Street downtown. Mr.

Tsang then drove and parked his car a block or two from the after-party venue, the Commodore Ballroom. [ 19 ] L.B.V. testified they stayed in Mr. Tsang’s car for about a half an hour. She recalled that Mr. Tsang did drugs at this point, what she thought was cocaine because he did it up his nose. He offered the two women some of the drug but both declined. L.B.V. said as they went to leave the car for the after-party, the two women wanted to take their fanny packs with them but Mr. Tsang said they would look too “ravey” and he was not going to go if they brought the packs with them. She recalled Mr.

Tsang got kind of angry at the women over the bags and he was clearly annoyed. She said Mr. Tsang told them just to take their ID with them and L.F. really protested about this. L.B.V. said they had planned that L.F.’s parents would drive them home that night. [ 20 ] L.B.V. testified that Mr. Tsang got them into the after-party and right away said they owed him drinks because they got in without having to pay. Mr. Tsang told them to buy a round of drinks but L.B.V. said she only bought a drink for Mr. Tsang and herself because L.F. did not want one. She recalled that Mr.

Tsang turned to the bartender and ordered himself a second drink. L.B.V. said when she got to the after-party she was pretty sober but also really hungry. She said she did not want to have a hangover because they planned to attend the rave again the next day. [ 21 ] After getting the drinks, the three went to a spot in the club where they swayed to the music but were not really dancing. She said Mr. Tsang repeatedly tried to put his arms around L.F.. She said at some point Mr. Tsang pointed to the bar and said he wanted to get more to drink but L.B.V. told him she just wanted water.

She recalled he bought four shots of tequila, two for himself and one for each of the women. She said L.F. declined the tequila and said she wanted to go home. L.B.V. said she took two of the drinks and Mr. Tsang took the other two. [ 22 ] Shortly after this, L.F. texted her family. She told L.B.V. that her dad was going to pick her up at 1:30 am. L.B.V. said she kept asking Mr. Tsang when her favourite act was going to be on and he said soon. She told them she would rather wait for the performance than leave with L.F.. When L.F.’s ride showed up, she asked L.B.V. if she could grab her fanny pack later from Mr.

Tsang’s car for her later. L.B.V. asked Mr. Tsang if he could drive her home if she stayed at the club and he agreed. [ 23 ] L.B.V. said right after L.F. left, Mr. Tsang asked her if she wanted more tequila and she said “no” because she was tired, but that she might have one when her band came on. She said Mr. Tsang ordered two more tequilas and because she did not want to protest, she drank one. She said she had a sense of security because Mr. Tsang had seen her throughout the night with J.’s arm around her. [ 24 ] L.B.V. testified Mr. Tsang then suggested they go dance and she said sure. She recalled that Mr.

Tsang started putting his hands around her waist. At this point, L.B.V. said she started noticing the effects of the tequila, feeling buzzed and nauseous. She testified that Mr. Tsang worked his hands up toward her breasts, feeling them from behind and that she moved her hands to her side to subtly indicate she was not interested. L.B.V. said Mr. Tsang then grabbed her wrist and turned her around and kissed her and she immediately turned back to face the stage in the club. [ 25 ] Mr. Tsang suggested they go upstairs and L.B.V. said he sat down and grabbed her by the waist and got her to sit on his lap.

L.B.V. said there were other chairs around and that she felt a little bit weird about it but said “you pick your fights”. L.B.V. told the Court that Mr. Tsang suggested the two of them leave the club and asked her if she had ever had sex with a stranger and she said no. She recalled being confused because she thought he had to take photos of one of the performers although he did not have his cameras with him. [ 26 ] L.B.V. said she left the club with Mr. Tsang about fifteen minutes after her friend had left and without seeing the performer she had come to watch. She said when she got off of Mr.

Tsang’s lap to leave, the tequila hit her and she felt the most intoxicated she had all day. She recalled stumbling down the stairs as they left the club. [ 27 ] L.B.V. said they walked to Mr. Tsang’s car and got in at around 1:50 am. She told the Court this part of the evening was a bit blurry for her and she did not remember too much. She said she realized that Mr. Tsang’s driving was not proper which sobered her up as she recalled how much he had drank and realized she could have gotten into a car accident with him. She said she was guiding Mr. Tsang to her home and he had missed the turn to get to her place.

He said he wanted to go into a parking lot and she told him to turn into the [omitted for publication], about a three-minute walk from her home. L.B.V. said her fanny pack was in the front seat with her and that she was drunk and wanted to go home. [ 28 ] L.B.V. told the Court that in the parking lot Mr. Tsang implied that he wanted to make out. Because of what they had already done in the club and because he had been really nice to her, L.B.V. said she did not protest too much. She thought it would not be long as

Mr. Tsang had to get back to work. She said Mr. Tsang suggested they move into the back seat and she said okay and planned on just kissing him. She recalled Mr. Tsang moved into the back seat faster than she did. When she got to the back seat, she could see the tip of his penis and that he had already undone his zipper. [ 29 ] L.B.V. said she did not think too much of getting into the back seat and thought she would just kiss him and say she was drunk and wanted to go home. She said she leaned over to him and they kissed and he started putting his hands on her breasts over top of her clothing.

She thought they did this for about eight to ten minutes. [ 30 ] L.B.V. testified Mr. Tsang then put his hand in her hair, which felt fine at first until he started pulling at it, bringing it toward his exposed erect penis. He told her to suck it and perform oral sex on him. She said he had his hand in her hair, which was quite long, and it really hurt if her pigtails were pulled on and that she could not really move her head. L.B.V. told him she was drunk and wanted to go home and was moving her head back, pushing against his hand holding her hair. She said he forced her head down to crotch-level.

She recalled that Mr. Tsang said “just suck it”. When asked whether she was doing this of her own volition, L.B.V. told the Court she did not want to but she just kind of gave up. [ 31 ] L.B.V. told the Court that Mr. Tsang’s pants were above his knees, partially off. She said he held her head to his crotch and she performed oral sex not very willingly, as he moved her head up and down on his penis. He told her that she was enjoying it and that she was a dirty slut. He repeated these things but she could not respond because his penis was in her mouth. L.B.V. said there were several times where Mr.

Tsang forced her head onto his penis and that it triggered her gag reflex and she was crying. She said he did not react to this nor did he ask if she was okay at any point. [ 32 ] L.B.V. said Mr. Tsang suggested she “ride his dick”, asking her to have sex with him and she said no, that she was drunk, tired, she did not sleep with strangers, and wanted to go home. She said when Mr. Tsang removed the pressure on her head, she would come up to breathe and would say to him that she was tired and wanted to go home. When she said no to intercourse, Mr. Tsang said “just do it for ten seconds”. She recalled Mr.

Tsang then said “have you ever done anal?” by which she thought he was suggesting they have anal sex. She told him she had never done that before and did not want to. [ 33 ] L.B.V. told the Court when Mr. Tsang took his hand off her the first time during the oral sex, she was exhausted and kept her head in his crotch area. She said he seemed to like this and it turned him on. She said she did not try to fight him too much and recalled he held the side of her throat with his left hand at that point.

She recalled that he held her throat with both of his hands later on. [ 34 ] While her face was being held to his crotch, L.B.V. told the Court Mr. Tsang started taking off her shorts, moving them toward her knees and that he was trying to feel between her fishnet stockings and her thong underwear. L.B.V. said Mr. Tsang was able to first put one and then three fingers inside her vagina. She said this was not something she had consented to nor had Mr. Tsang asked her if he could do this. She said it felt bad and it hurt.

She said when he asked her about anal sex, he put a finger in her anus, something she did not consent to and had told him explicitly she did not want. She said the digital penetration of her anus hurt a lot and it did so for days after. She said the anal fingering did not last long because she was in pain and pulled her head back but that he went back to digitally penetrating her vagina. She recalled Mr. Tsang fingered her for about fifteen minutes during the oral sex. [ 35 ] L.B.V. said she sensed Mr. Tsang was holding his orgasm and thought if he finished it would be over.

She said the last thing she wanted to do was have any sort of sex with him and she did not want to have vaginal sex with him. When he asked her to have intercourse for just ten seconds, L.B.V. said he kind of released her head from being forced on his penis and that she pulled herself and got his fingers out of her vagina. She said at this point Mr. Tsang was sitting normally on the back seat and that she was on her knees facing the rear window as she pulled herself up. [ 36 ] L.B.V. testified that Mr. Tsang then moved part of her left leg across his waist so that she was straddling him.

She said by this time she had finished pulling off her shorts while performing oral sex because she had been unable to move with them partway down. She said there was no clothing covering her genital area at this time. She said Mr. Tsang then pulled her into an embrace with his arms around her. He then pulled her in and put his penis inside of her and moved back and forth with it inside. She said this was painful because of the injuries she had received by him fingering her.

L.B.V. said she arched her back to move away from his crotch but with his hands around her waist, she could only move so far and that she was physically exhausted at this time. She thought she had hit her head on the roof of the car when he pulled her on top of him to have intercourse. [ 37 ] L.B.V. said she had really sobered up by this time and recalled counting down the time and told Mr. Tsang it had been ten seconds although she thought it had been a minute. She was able to push away and off him. She said Mr. Tsang looked annoyed and said “fine” and pulled her head back to his crotch. She said Mr.

Tsang had asked her earlier if she would spit or swallow. She told the Court that Mr. Tsang then masturbated himself with one hand while holding her head near his crotch and stomach with the other hand. He ejaculated on his stomach while her face was right there and she got semen on her. He again tried to force his penis into her mouth and she told him she did not want to and that he was not able because she kept her mouth shut. Mr. Tsang told her to lick it and she did a little even though she did not want to. [ 38 ] L.B.V. said throughout this time, Mr.

Tsang was all action and did not ask her about doing the things they did at any time. She said she did not voluntarily have sexual intercourse with Mr. Tsang and she had tried to keep her hips closed and her vagina away from him but he pulled her closer. She said she did not consent to him putting his penis in her vagina and that she repeatedly told him she did not want to. She said Mr. Tsang did not acknowledge that she did not want to have intercourse. She told the Court at no time did she see a condom nor was one used. [ 39 ] L.B.V. told the Court after Mr. Tsang finished, he quickly started getting dressed.

She recalled his phone was in the middle console in the front seat area and that he checked his messages. She asked him if he did this to other girls and he said she “was in his top eight”. L.B.V. said she got dressed, pulling up her clothes but not buttoning up her body suit. She said Mr. Tsang got in the driver’s seat to take her home. She said she was in a lot of pain at this time. [ 40 ] L.B.V. said on the way to her home she realized she did not have her house key. She asked Mr. Tsang to take her to L.F.’s place instead and he did so. L.B.V. called L.F. and told her she was on her way. She said when Mr.

Tsang pulled his car up at L.F.’s place, he

left before she had even made it to the sidewalk. [ 41 ] L.B.V. told the Court L.F. was very drowsy. She told L.F. she had just given Mr. Tsang a blow job and that it was an unfortunate evening. She testified that she was very ashamed and it was embarrassing to be taken advantage of. L.B.V. said she sat in bed and then decided to message Mr. Tsang, asking him “if what had happened had happened?”, meaning if they had hooked up and if penetration had taken place. He responded “no”. She said when Mr. Tsang quickly drove away from L.F.’s home, she felt ashamed and disgusted by what had happened. When Mr.

Tsang said no to her question, she knew he also felt ashamed and said his answer told her what she felt about the night was true. [ 42 ] L.B.V. said she did not sleep much and cried. She got up and vomited. She said she was in a considerable amount of pain, and that her vagina, anus and head hurt. When she urinated that morning, she saw blood on the toilet paper. She texted her sister for a ride home and said that her mother talked to her when she got home and she told her what had happened. [ 43 ] L.B.V. said she had several scratches in the vaginal area and the area was sore for days after.

While she had a number of bruises, she offered that people were close together at the concert at BC Place and some of the bruises, particularly on her upper body, could have come from being in the crowd there. She thought the bruises on her legs more likely came from when she was in the back seat of Mr. Tsang’s car. She referred to light bruising in her neck area and said Mr. Tsang did that to her and said it made the cough she had at the time worse. [ 44 ] L.B.V. said she was very concerned about sexually transmitted diseases and worried about Mr. Tsang’s use of drugs and HIV.

L.B.V. testified that she went to Vancouver General Hospital so she could get tested for diseases. She said staff at the hospital told her she could get a rape kit done and decide on charges later so she went ahead with it. She said she immediately posted for sale the wristband she had for the second day of the BC Place event as she was concerned not to run into Mr. Tsang or his friends. [ 45 ] In cross-examination, L.B.V. said she was uncomfortable at BC Place out of concern that Mr. Tsang was trying to hit on L.F. and her friend kept giving her a look that she did not want to dance with him. She said Mr.

Tsang was not a threat to her but just not her cup of tea and she did not think he was the right guy for L.F. either. L.B.V. agreed she was excited to be able to see another performance by the artist she liked upon being invited by Mr. Tsang to go to the Commodore. She said she was nearly sober when they left BC Place. Although getting into the club for free through Mr. Tsang was good for her wallet, she did not agree it was a big deal to get into the after-party and said there was no crowd they got to bypass. [ 46 ] Regarding Mr.

Tsang’s use of cocaine, L.B.V. said she is not comfortable with drugs and her friends do not use. While it did not change her decision to go to the after-party with him, it changed her perception of Mr. Tsang. She said his demeanour changed shortly after he used it but did not know whether that was due to the drug. [ 47 ] L.B.V. said Mr. Tsang was focussed on the two women not bringing their fanny bags into the Commodore because he said they were too “ravey” and embarrassing, even though she thought most people at the club would have been coming from the rave festival.

She said her fanny pack went with her attire and pointed it out in the photo filed with the Court. She said both women were uncomfortable leaving their bags in Mr. Tsang’s car as that would tie them to him for the night and it changed the dynamic. L.B.V. said she understood the plan was for L.F.’s parents to pick them up and that is why they wanted to take their fanny packs with them. L.B.V. told her friend that she really wanted to see the performance at the Commodore and L.F. said in the worst case scenario, they could meet up with Mr.

Tsang to get their things on the second day of the concert. [ 48 ] When asked in cross whether upon leaving the Commodore with Mr. Tsang she was fine with him giving her a ride home, L.B.V. answered that she was very drunk at that point, having had three shots of tequila and a vodka-cranberry. She said because she had not eaten, the drinks hit her a lot harder. She agreed she was not so drunk that she could not remember the details she testified to. She said L.F.’s parents had already picked their daughter up and L.B.V. did not know if someone in her own family would be awake.

She said had she known how the night was going to go, she would have taken a cab home. However, at the time she thought a ride from Mr. Tsang, who she knew, was safer than one with an unknown cab driver when she was so scantily clothed. [ 49 ] L.B.V. said when Mr. Tsang kissed her on the dance floor at the club after L.F. had left, she did not instigate the kiss, did not want it, and did not continue with it. She agreed when she turned away from Mr. Tsang back toward the dance area she did not do so aggressively. She recalled Mr.

Tsang had her hand as they went upstairs in the club and he grabbed her waist as she sat down on his lap. She agreed she did not have a problem with sitting on Mr. Tsang’s lap but said at this point the effect of the drinks were setting in. [ 50 ] L.B.V. said it was upstairs that Mr. Tsang asked her if she would ever have sex with a stranger, a comment she found pretty weird. She agreed she took this as a message from him that he had an interest in having a sexual encounter with her. She denied wanting to have an encounter with him and told him “no” when he asked the question. She said she felt uncomfortable.

When Mr. Tsang said “let’s go home” she agreed. She said she had not been feeling unsafe while at the club but that it was not going in the direction she wanted it to. [ 51 ] L.B.V. denied that she wanted to spend time alone with Mr. Tsang and thought the ride home with him would be awkward. She recalled Mr. Tsang held her hand as they walked down the stairs out of the Commodore to his car and that she was stumbling. She said she was feeling extremely tired. She denied flirting with him the whole time at the bar. [ 52 ] L.B.V. denied telling Mr.

Tsang that it was her last couple of nights in Vancouver before moving away or that she asked him if he wanted to have some fun and offered to give him oral sex but not have sexual intercourse. She also denied it was her idea to go to the park and said she wanted to go home. She said as the car neared Venables and Clark, she realized he was drunk and high and that his ability to drive was affected. When asked why she did not just ask him to pullover, she said that the next turn off was for the park.

She said where they parked was not a safe place. [ 53 ] L.B.V. agreed her residence was about three minutes away from the parking lot but said she did not feel safe walking home, as it is a bad neighbourhood where the sex trade occurs and she was scantily attired. She said she was not sure where her house keys were and that she lived in an apartment so she could not just knock and was concerned to be stuck on the street. She said she was engaging in risk

management. She said she has been hit on throughout her life and other men have said more grotesque things to her than Mr. Tsang’s remark about having sex with a stranger and that alarm bells were not going off. She said she had previously been in situations like sitting on Mr. Tsang’s lap and kissing, and it was not the end of the world for her but having a sexual encounter in the parking lot crossed a line. [ 54 ] L.B.V. was cross-examined on why she would choose to get in the back seat with Mr. Tsang after noticing the tip of his penis was exposed rather than getting out and walking home.

She said the two of them had mutual friends and she thought she had a general idea of who he was. She said a man could just grab her off the street or she could stay with a guy she thought she knew. She thought that maybe giving Mr. Tsang a bit of what he wanted by making out, meaning kissing, was a little safer. She told the Court she did not expect Mr. Tsang would sexually assault her nor did she think her life was in danger at any point and that the best thing to do was to act normal until she was in a safe situation. [ 55 ] L.B.V. said they were in the parking lot for about forty-five minutes.

When it was suggested that she could have gotten out of the car or called 911 on her cell phone, L.B.V. said her cell phone was in the front seat area. She said in the beginning she did not think she was in immediate danger and thought they were just going to kiss. She said they did just make out for the first eight to ten minutes and although she did not really want to, it was by consent. When Mr. Tsang moved her head down to his penis is when she would say the assault began. [ 56 ] When pressed about the first part of the encounter in the back seat, L.B.V. agreed she had leaned over to make out with Mr.

Tsang and it was possible she got onto his lap. She agreed her legs were straddling him and they kissed. L.B.V. disagreed she was grinding his crotch area although Mr. Tsang became erect as they were making out. She denied moaning or saying words of encouragement to Mr. Tsang at this time. She said the comment by Mr. Tsang about liking it rough was not put to her as a question. She denied telling Mr. Tsang that she liked it rough or asking him to spank her and denied using her hand on his penis before her mouth. [ 57 ] L.B.V. said that Mr.

Tsang’s entire penis was in her mouth at one point but denied she consented to this and that Mr. Tsang was forcing her head down and she started to cry. She denied taking her shorts off although she said she did lower her shorts after they were at her knees so she could move. She said Mr. Tsang did not ask her permission before he put his fingers in her vagina or that she had said words of encouragement when he did so or that she said “harder”. She denied that when Mr. Tsang inserted his fingers into her she had said “harder, deeper”. She did not recall Mr.

Tsang at any point asking for her consent. [ 58 ] L.B.V. agreed she had sent Mr. Tsang text messages early that morning from her friend’s room in which she said to him “you didn’t actually go in?” She thought he would be ashamed and said she was trying to catch him in a lie as she knew he had done that. She denied experiencing regret over what had happened and said she felt mostly anger because Mr. Tsang denied it. She denied fabricating a story about non-consent and said although no one forced her to drink or get in his car, she did not consent to sexual activity beyond kissing. [ 59 ] Dr.

Sandra Hirowatari was qualified to give expert opinion evidence in the practice of medicine and as a sexual assault physician examiner, including expertise in the examination of patients alleging sexual assault, the collection and documentation of any available forensic evidence, and documenting the evidence of physical injuries after trauma. She was also able to offer an opinion as to whether any physical injuries or forensic evidence observed were consistent with the sexual assault or trauma as reported. [ 60 ] Dr. Hirowatari conducted a sexual assault exam on L.B.V. on December 29, 2018, at VGH.

She said L.B.V. gave her a brief description of what happened so she knew where to direct her exam. She then conducted a general physical examination, noting nine injuries. Of those, the doctor agreed in cross-examination that five of them were based on the patient’s subjective remarks and the other four were objectively observable. She agreed that with the subjective findings it would be possible for the patient to be faking or pretending. [ 61 ] In the anogenital examination, Dr. Hirowatari observed a 10 cm x 9 cm area of reddened tenderness surrounding the external genitalia.

The labia minora was visibly swollen, tender, and pink. A toluidine blue exam revealed injuries not visible to the naked eye, including a previously unnoticed rift in the right lateral genital opening measuring 4 cm long. [ 62 ] Dr. Hirowatari described a rift occurring when there is sufficient force from two sides to cause a gap in human tissue. The doctor said rifts occur where the tissue is weakest, and usually follow linear lines, such as along the lines on a hand. She said it was definitely not normal to find rifts associated with sexual activity but common to see after childbirth.

She said sustaining the rift would be painful as it would involve a tug or pulling force causing the tissues to give way. She said there would be secondary pain in that the rift would open the tissues and the area would be tender to air, urine or touch. She did not observe any inner vaginal injuries. [ 63 ] Dr. Hirowatari said many of the injuries she observed on L.B.V. could occur with rougher consensual sex but what was not in keeping with that activity was the number and depth of injuries she observed on her.

She said in the over 200 sexual assault examinations she has conducted, many of them have involved no injuries . S he said in the thousands of regular pelvic exams she has done, she has not seen any of the injuries noted in this case, except for rift injuries when examining a woman the day of or the day following childbirth. Dr. Hirowatari testified that the bruises, swelling and redness of the injuries as well as the number and depth observed on L.B.V. spoke of non-consensual sex. She said when you add the rift, what she observed was quite inconsistent with consensual sex. [ 64 ] In cross-examination, Dr.

Hirowatari agreed she did not observe any trauma to the outside of the anus nor any injuries in the vaginal walls. She agreed L.B.V. told her she was strangled with both hands and an elbow. She did not make a note of any bruising on L.B.V.’s neck even though she had conducted a strangulation exam and completed paperwork in conjunction with that exam. L.B.V. reported vomiting and a little different sensation when swallowing. The doctor agreed it was possible that there was consent to the activities which created the injuries she observed on L.B.V.

However, the number and depth of injuries plus the rift made it inconsistent with consensual sex. [ 65 ] Constable Cox told the Court on January 1, 2019, she took photographs of L.B.V.’s injuries as a member of the VPD forensic unit. She testified L.B.V. said she had a neck injury but that L.B.V. was rubbing her neck beforehand, although she did observe some redness in the area. Cst. Cox said she saw small bruises on both of L.B.V.’s legs, the outer and inner thighs, knees, shins and a scrape to

the right ankle. L.B.V. said she had back pain but the officer did not observe any injuries in that area. [ 66 ] Constable Mahinsa told the Court he conducted a forensic examination on Mr. Tsang’s car on January 5, 2019. He told the Court he found an unused condom in the pocket on the back side of the front passenger seat along with many other items. He was also involved in sending a vaginal swab to the police forensic lab and learned no male DNA was detected on it. [ 67 ] Mr. Tsang testified at this trial and told the Court on the 28th of December 2018, he was twenty years old. He grew up in North Burnaby.

He studied commerce at UBC where he was diagnosed with hyper-ADHD. He has worked in various capacities and is now working as a consultant running his own company. [ 68 ] Mr. Tsang said prior to the night in question, he had not met L.B.V. or L.F.. However, about six months beforehand, he and L.B.V. started following one another on Instagram. [ 69 ] On December 28, 2018, Mr. Tsang was working as a photographer and was to take photos of Galantis at the Contact Festival at BC Place. He told the Court he got to the venue around 9:00 pm and there were no prior plans to meet up with L.B.V.

He had nothing to drink before or during the show nor did he do any drugs. He said he met up with L.B.V. and J., someone he was acquainted with, around 9:30 pm. He said L.B.V. introduced him to L.F. and that he spent most of the time talking to L.F. and getting to know her. He said while he was doing that, L.B.V. and J. were nearby dancing and making out. He said before he went to take photos, he and L.F. exchanged numbers so they could text one another. [ 70 ] Mr.

Tsang said after photographing Galantis, he went back into the crowd and he texted other friends to find out where they were and L.F. let him know they were in the same spot so he met up with them. He and L.F. danced for about thirty minutes. L.B.V. was quite occupied with J. at this time. [ 71 ] Mr. Tsang said around 11:30 pm L.F. asked what he was going to do after the concert and he told her he would be editing his photos. She told him there were after-parties and he checked on-line and saw that Galantis was playing at the Commodore and he said “oh wow”.

He testified that L.F. said they did not have any plans to go to the Commodore and did not have tickets but they might be interested in going if he could get them in. Mr. Tsang said he checked first with L.B.V. and J., but J. said he was going to another club. Mr. Tsang said he texted the Galantis manager to see if they could get in. He recalled L.F. was egging L.B.V. to come along to the after- party before L.B.V. moved to Ottawa a couple of days later. He said once L.B.V. found out Galantis would be performing, she was really excited and happy to come along. [ 72 ] Mr.

Tsang said the two women joined with his other friends and left the stadium in his car. He dropped off the two friends before parking near the Commodore. Mr. Tsang said after parking his car near the club, the three of them stayed inside it decompressing for about thirty minutes. He said he had a “blow bag” of cocaine in his car and he did one line of cocaine. He said the cocaine makes him less tired. He also took an over-the-counter allergy pill. [ 73 ] Mr. Tsang said as the three of them were leaving his car for the club, the women asked him to open his trunk.

They told him they wanted to leave their stuff in his car so they would not have to use the coat check at the bar. He said they asked him if he could drive them home after. He asked them where they lived and he said okay. [ 74 ] After getting into the club, Mr. Tsang said L.B.V. wanted to buy the group their first round of drinks and he did not ask her to do so. He said he drank a Jagerbomb and L.B.V. drank a vodka-cranberry. He said there was a second Jagerbomb meant for L.F. but she was not into drinking that night.

He did not remember what happened to the second drink although he said perhaps he drank it. [ 75 ] Mr. Tsang testified that after about twenty to twenty-five minutes had gone by, L.F. was not into it and wanted to go home as did he. She said her parents were going to pick her up and he said why bother as he could drive them. He recalled that L.B.V. wanted him to have fun with her and show her a good time before leaving and that L.F. left on her own. [ 76 ] After L.F. left, Mr. Tsang said he and L.B.V. were talking. He asked her if he could buy her a drink and she said yes.

He said he went to the bar where he bought a double-shot of tequila for each of them and they drank them. He said he then ordered them each a water and after drinking them he said “let’s go dancing”. [ 77 ] Mr. Tsang said he was facing the DJ on the dance floor and L.B.V. backed into him. His chest was almost touching her. He thought she wanted to dance so he lightly put his hands around her hips and she then started to grind her butt against his groin area. Mr. Tsang said he took this that he could embrace her a bit harder so he grabbed her and she put her hands over his holding him against her.

He said they danced like this for four to five minutes, grinding. Mr. Tsang said L.B.V. turned around and looked into his eyes. He leaned in and they started kissing, making out for a couple of seconds. He added that they were French kissing with their tongues in each other’s mouth and that the kissing lasted for twenty to thirty seconds. He recalled L.B.V. said he was a really good kisser and he said the same thing to her. He said L.B.V. then turned around and he again had his hands across her stomach as they danced. [ 78 ] Mr.

Tsang said five to ten minutes later they were a little tired and he asked L.B.V. if she wanted another drink. He bought a single gin and tonic and they split it. He said he then got more water and suggested they go upstairs. He guided her up there and they held hands as they made their way. The accused said he sat down first and L.B.V. planted herself on his lap. He said this was strange but he did not mind and noted there were other chairs around but that they had already been grinding.

He said they were embracing at this point as they sat waiting for another performer to start. [ 79 ] The accused said he realized it was getting late and asked L.B.V. if it was okay if they left. He apologized because she really wanted to see Galantis. He recalled that she thought for a second and agreed to leave. He offered to take her home and she said okay. He said they left holding hands as they walked down the stairs and outside. [ 80 ] Once the two were outside, Mr. Tsang testified that L.B.V. asked him if he wanted to have some fun.

He asked her what kind and she said “I won’t fuck you but I will give you a blow job”. He said he was a bit surprised because he did not think the night was going to go “there”. He said he asked her if she was good at oral sex and she said that was for him to find out.

[ 81 ] They discussed the fact that they could not go to either one of their homes because they lived with their parents. He asked L.B.V. if she knew a place where they could go and she told him there was a parking lot near her place they could go. He testified he was certain this was L.B.V.’s idea. [ 82 ] Mr. Tsang said he asked L.B.V. to “GPS” the parking lot for him and she used her phone to do so and he started driving. He said it is always his practice to use GPS.

He added that he wanted to be mindful of roadblocks because he thought he might blow over so he asked her to guide him and said they should take Prior Street. [ 83 ] Mr. Tsang said they got to the parking lot at [omitted for publication] around 2:00 am. He parked and asked her how she wanted to do this and she said the back seat looked good. He said he got out of the driver’s seat and into the back seat. L.B.V. went to the back through the middle console area of his car.

He said he was fully clothed as he sat in the back seat and that L.B.V. straddled him in a ‘lap dancing’ position so they were facing each other. He said her butt was planted on his groin and penis area. His arms were on her hips and back, and her arms were over his neck and back and they engaged in foreplay. He said L.B.V. started to grind against his groin and his hands were touching her all over as they made out. He said L.B.V. did not object. [ 84 ] The accused told the Court as they were making out and kissing, L.B.V. was tugging on his hair, grabbing his face and neck.

She then said “spank me daddy” and he spanked her on the butt. He asked her whether she liked rough sex and she said she did. He said he wanted to know if she was in to that stuff as he did not know much about her and wanted to know if he was getting the mood right. [ 85 ] He said at some point he grabbed L.B.V.’s hand and laid it against his groin and she started rubbing his penis over top of his jeans. He said he was erect at this point and wanted to show her that he was aroused. [ 86 ] Mr.

Tsang said after about five minutes of foreplay he moved forward to give her a bit more room and because it was not possible for her to give him oral sex in the position she was in. He said L.B.V. was unable to undo his jeans and he helped her by getting up a bit and undoing his jeans. He got his jeans and his boxers down to his knees and sat back down. [ 87 ] Mr. Tsang said L.B.V. then spat on his penis to lubricate it and started giving him a “hand job” and then performed oral sex on him. He said L.B.V. did not say anything about not want to doing this.

He said she was quite turned on from the light moaning she made and she was quite aggressive. He told her she was really good at giving oral sex and that she was in his top five. He said L.B.V. smiled or grinned at this comment and went back to sucking on his penis. [ 88 ] Mr. Tsang said the oral sex lasted for about five minutes and that he was feeling really good. He said he wanted to give L.B.V. pleasure too so he asked if he could finger her and she said yes. He said she got up from the floor and sat to his right and he told her to take off her clothes.

She took her fishnet stockings all the way down to the floor mats and pulled her shorts down. He said she again performed oral sex on him from the side while he reached over her and pushed her panties aside so he could get his fingers inside of her. He said he inserted one finger in her and that she moaned a lot louder. He asked her if she wanted him to finger her harder and she said “yes daddy”. He said he then called her “slut” and “whore” and put two fingers inside of her and fingered her a bit harder. He said she was moaning and saying ‘harder’. [ 89 ] Mr.

Tsang then asked L.B.V. if she wanted to get on his lap so he could continue better and she sat back on him like earlier. He said L.B.V. continued to say “harder” and that he had two fingers in her at this time. He said he put his right hand against her neck for a couple of seconds but it felt weird so he put two fingers inside her mouth and she started sucking on them like she was giving him a blow job. He said L.B.V. was moaning and saying “harder”. He said he then put three fingers inside of her vagina. He said she was moaning as his fingers were inside of her.

He asked if it felt good and she said it felt good “daddy”. [ 90 ] Mr. Tsang said L.B.V. then stopped for a second and he asked her if she wanted him to “fuck” her. He recalled L.B.V. asked him if he had a condom and he thought he did. He looked through the middle console but was unable to find one. He said L.B.V. told him she wanted to suck him off to finish him and she did so again. He said he used his hand to grab her hair lightly and guide her. Mr. Tsang said when she gave him oral sex at the beginning, she was deep throating it and he was reinforcing it, not forcing her.

He recalled that she choked on it a bit and sucked again. He said he grabbed his penis and jerked himself off and asked L.B.V. if she spat or swallowed. He said L.B.V. answered “swallow; spit is for losers”, so he ejaculated in her mouth. He said she swallowed and got back on his lap like they were when they were sitting at the Commodore. They cuddled and made small talk. [ 91 ] While making small talk, Mr. Tsang said L.B.V. asked if she was going to see him the next day. He said he would try but that he was already stressed out and photographing two performers at the event that day.

He got dressed and got back into the driver’s seat and L.B.V. went through the middle console area again to get back in the front passenger seat. He told her he would take her home. About a minute later, L.B.V. told him she did not have her house keys. He said she asked him if she could sleep at his house and he told her “sorry, no”. She called L.F. and asked him to take her to her place instead. He said he parked his car in front of L.F.’s place. Before L.B.V. got out she said she would like to see him tomorrow and she kissed him on the lips.

He said he drove off pretty quickly after she got her bag and they waved goodbye as she left. [ 92 ] Mr. Tsang said about halfway home, L.B.V. messaged him inquiring whether he actually entered her. He said he assumed she meant intercourse and he denied having intercourse. He said he found her messaging a bit confusing and malicious as they had just had a great time. He said he had asked for her consent each time they did something and now she was doing a “180”. [ 93 ] In cross-examination, Mr. Tsang told the Court he is 6 feet tall and weighs from 150 to 155 pounds.

He agreed both L.B.V. and L.F. were attractive women who were dressed in a sexy manner the night in question. He agreed L.B.V. and J. had been making out and dancing at BC Place. He said it was L.F. who asked him what he was doing after the concert, not L.B.V., and that L.B.V. had not taken any steps to converse with him at that point. He agreed he was interested in L.F. and thought she was attractive. [ 94 ] Mr. Tsang maintained that he had no plans to go to the after-party at the Commodore until it got discussed near the end of the event at the stadium.

He said after the three of them parked, they decided not to go inside the club until the time the main act was to perform. He agreed they went into the Commodore around 12:30 am, an hour before the first main act was scheduled to take the stage. He agreed the band L.B.V. wanted to see was the closing act that night and the Commodore closed at 4:00 am.

[95] Mr. Tsang said he assumed the two women needed a ride from him because they had left their fanny packs in his car. Whenasked why L.F. would leave her bag in his car if she was not planning on staying at the club for long, Mr. Tsang said he told her if shewanted to leave early, she could just grab her bag from his car. He said it was a short walk away. He said he did not know whether therewere people inside the club carrying fanny packs but was aware there was a coat check service available. Mr.

Tsang said L.F. did not sayshe was going to get a ride home from her parents until they were inside the Commodore. [96] Mr. Tsang agreed he was dancing, grinding and kissing L.B.V. about fifteen minutes after L.F. left. He said he was surprisedL.B.V. was grinding and kissing him given she had paid very little attention to him earlier. He denied buying more shots of tequila afterdancing and said they only split a gin and tonic. He said when they went upstairs he was holding L.B.V.’s hand because she had beenembracing him on the dance floor and not because she was drunk and needed help.

He denied pulling her on to his lap. [97] Mr. Tsang told the Court he decided he wanted to go home and he offered to drive L.B.V. and she said okay. He agreed she musthave had money as she had bought the round of drinks and probably could have paid for a cab. [98] Mr. Tsang agreed that within forty-five to sixty minutes, L.B.V. had gone from not paying him any attention to offering toperform oral sex on him.

He was asked if he should have been concerned about that and he answered “why?” When it was suggested heshould have been concerned because L.B.V. had drank a lot, he answered she had three and a half drinks and she was giving him all thesigns inside the Commodore that she was in to him. [99] In cross-examination, Mr. Tsang said he wanted to know the quickest route to the parking lot L.B.V. said they could go to andthat he was unfamiliar with the lot. He said he always asks passengers to use GPS when they are with him to ensure he takes thequickest, most accurate route to a place.

However, when asked if he was impaired, he agreed he was buzzed from the cocaine andalcohol, and he was concerned about encountering police roadblocks. [100] Mr. Tsang denied initiating the discussion about rough sex with L.B.V. and said he brought it up after she had asked him to spankher. He said L.B.V. uttered “daddy” out of the blue. Mr. Tsang was questioned whether he asked permission from L.B.V. beforeinserting two fingers in her vagina and said he did not. She said “harder, harder” and was moaning so he took it from that.

He agreed hedid not ask L.B.V. before he put two fingers in her mouth nor did she ask him to do so and said he took it as consent the fact she wassucking on his fingers like she was performing oral sex. He said when he inserted three fingers in L.B.V.’s vagina, they were about two-thirds of the way in and she was moaning like in euphoria and enjoying it, moving her hips and saying “harder, harder”. When he askedher if it felt good, she said it felt good “daddy”.

He maintained L.B.V. was deep-throating him at the end when he put his hand on herpony tail to reinforce the action and denied that he grabbed her hair and pushed her down to his genitals. [101] In cross-examination, Mr. Tsang denied suggesting anal sex to L.B.V. and denied inserting his finger into her anus. He deniedlooking at his phone for messages right after and said his phone was in the cup holder at the front of his car. [102] Mr. Tsang maintained that his memory for what happened in the car was fine the morning after. However, Mr.

Tsangacknowledged it was partially true when he wrote a text message to L.B.V. that morning saying he could not remember too much. Inreply to L.B.V.’s message that she was going to the hospital, he agreed he had texted that they only had a tequila shot when in fact theyhad engaged in sexual activity. [103] Mr. Tsang said he did not know L.F. had left her fanny pack in his trunk until he saw it there that morning and she had beentexting him all morning. She asked in one of her messages if he could bring her bag to her and he agreed that in his reply he stated that hewas still a little hung over and recovering.

Positions of Counsel [104] Counsel for Mr. Tsang asked the Court to carefully examine the evidence in this case in accordance with the framework in R. v. S.(W.D.), (SCC). The Court is not to simply examine the conflicting evidence about what happened the night in questionand prefer the testimony of one witness over another. The Court need not accept all of Mr. Tsang’s evidence to acquit him nor can it inferguilt on the basis that his testimony was not believable. [105] Mr.

Mines carefully reviewed the testimony of the accused and submitted he was calm, collected and consistent in his evidence.He submitted his evidence should be accepted and he should be acquitted. Alternatively, the Court should be left with a doubt given Mr.Tsang’s evidence and enter an acquittal on this basis. [106] Counsel for Mr. Tsang said the Court ought to find serious issues arising from the Crown evidence. He urged the Court to find thelack of male DNA on the vaginal swab from L.B.V. and the text message she sent to him put in doubt the act of sexual intercourse.L.B.V.’s decision to stay with Mr.

Tsang after he parked his car and then to get into the back seat were said to be inconsistent with theCrown theory of non-consent and with her being an unwilling participant rather than the one who initiated the sexual encounter. [107] The Crown submitted the Court ought to carefully examine what L.B.V. said she agreed to do when she got into the back seat ofthe vehicle with what actually took place and to find she did not consent to most of the encounter. L.B.V.’s decision to make out with Mr.Tsang did not include Mr. Tsang’s other conduct for which it was argued he neither sought nor obtained L.B.V.’s consent.

The Crownsubmitted this is a case about credibility and consent because on L.B.V.’s evidence, she repeatedly communicated her lack of agreementto Mr. Tsang. [108] Crown submitted the rift injury described by Dr. Hirowatari was inconsistent with consensual sex. The constellation of theinjuries observed was also inconsistent with a consensual encounter. Mr. Sebellin submitted Mr. Tsang’s evidence of obtaining L.B.V.’sconsent for every part of the sexual activity was contrived and not capable of belief. It was submitted that L.B.V.’s injuries wereinconsistent with Mr.

Tsang’s story that she was moaning or encouraging him throughout the encounter. [109] The Crown submitted L.B.V. was truthful whereas Mr. Tsang’s evidence did not have a ring of truth to it and was embellishedand contrived. L.B.V.’s decision to sell her ticket for the second night of the concert, go the hospital and then the police were all

submitted to be reasonable in light of what L.B.V. said occurred that night and inconsistent with what Mr. Tsang said happened. Applicable Law [110] Section 265(1)(

a) of the Criminal Code provides that “A person commits an assault when without the consent of another person,he applies force intentionally to that other person, directly or indirectly”. Subsection (2) states that this applies to all forms of assault,including sexual assault. [111] In R. v. Ewanchuk, (SCC), 1999 SCJ 10, the Supreme Court of Canada stated (at para. 23): …The actus reus of assault is unwanted sexual touching.

The mens rea is the intention to touch, knowing of, or being reckless of orwilfully blind to, a lack of consent, either by words or actions, from the person being touched. [112] The Supreme Court considered (at paras. 25-30) the actus reus of sexual assault: The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact, and (iii)the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actionswere voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour.

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mindtowards the touching, at the time it occurred… …for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant isdeterminative. At this point, the trier of fact is only concerned with the complainant's perspective.

The approach is purely subjective. … While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by thetrial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before andduring the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If,however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown hasdischarged its obligation to prove the absence of consent. The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including anyambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct isconsistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant.

That perceptiononly arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [citations omitted] [113] The Court noted there is no defence of implied consent to sexual assault in Canadian law (at para. 31): …the complainant either consented or not. There is no third option.

If the trier of fact accepts the complainant's testimony that she didnot consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third componentof the actus reus of sexual assault is proven… [114] The Supreme Court next examined the mens rea of the offence (at paras. 41 & 42): Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant inorder to satisfy the basic mens rea requirement. See R. v. Daviault, (SCC), [1994] 3 S.C.R. 63.

However, since sexual assault only becomes a crime in the absence of the complainant's consent, the common law recognizes a defenceof mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch thecomplainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of,or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.

See Park, supra, at para. 39. [115] At para. 45, the Court noted that “[a]s with the actus reus of the offence, consent is an integral component of the mens rea, onlythis time it is considered from the perspective of the accused.” The Court noted (at para. 50) that consent in relation to the mens rea ofthe accused is limited by ss. 273.1(2) and 273.2 of the Code and the common law. Relevant to the case at bar is s. 273.1(2)(e): …no consent is obtained …[where] (

e) the complainant, having consented to engage in sexual activity, expresses by words or conduct, a lack of agreement to continue toengage in the activity. [116] Finally,

section 273.2 states: It is not a defence to a charge under

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

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. Analysis [ 117 ] R. v. W.D. reminds trial judges not to simply compare stories about the event or to shift the onus to the accused. The evidence from the Crown witnesses in this case must be scrutinized for its credibility and reliability before it can be acted upon. Reasonable doubt applies to credibility and reliability.

The W.D. framework applies where there is evidence arising from the Crown’s case that, if true, is capable of preventing the Crown from proving beyond a reasonable doubt an element of the offence. In assessing the evidence, I am to consider whether it appeared to have been honestly given and not inaccurate due to honest error. [ 118 ] Mr. Tsang’s evidence was that he was working the night in question at the festival at BC Place. L.B.V. paid no attention to him and his attention was directed elsewhere. He said L.F. talked L.B.V. into going to the after-party.

I prefer the testimony of the Crown on this point given the clarity of L.B.V.’s testimony that she wanted to go to the after-party to see Galantis and the corroborating evidence that it was L.F. who had to be talked in it. [ 119 ] Mr. Tsang said he used cocaine in his car. He said the women wanted to leave their stuff in his vehicle so they would not have to use the coat check at the bar. He said they asked him if he could drive them home. He asked them where they lived and he said okay.

Given L.F.’s evidence that her parents were always willing to give her a ride, that she barely knew him, and the women’s bags went with their outfits, I find Mr. Tsang’s story about the fanny bags unbelievable. [ 120 ] Mr. Tsang said L.B.V. bought a round of drinks for all of them when they got inside the club. I find it unlikely that L.B.V. would have bought L.F. a drink given that her friend was not sure she was going to stay for the performance and was considering calling her parents to go home soon. Mr. Tsang said he did not remember what happened to the extra drink although he said perhaps he drank it.

I find the evidence supports a finding that an extra drink was ordered and he probably consumed it as he rapidly came under the influence of drugs. Mr. Tsang’s admission that after L.F. left a short while later, he purchased double-shots of tequila for both himself and L.B.V. is consistent with this finding. [ 121 ] Mr. Tsang’s evidence that L.B.V. went with him to the dance floor and almost right away started backing into him, grinding her butt against his groin, is not capable of belief in the circumstances.

L.B.V. had expressed no interest in him up to this point and had been with another man earlier in the evening. Mr. Tsang said L.B.V. turned and looked him in the eye and they started French kissing. I find this is even more fanciful. L.B.V. denied French kissing Mr. Tsang and was not asked about putting their tongues in each other’s mouths. [ 122 ] Mr. Tsang said the couple then shared a gin and tonic, something that seems unlikely given they were still mostly strangers. He said he then guided L.B.V. upstairs.

I find it more likely each of them had an individual drink and the consumption of tequila took place as they continued to get intoxicated. L.B.V. likely needed to be helped up the stairs due to impairment and not because Mr. Tsang was acting like he was courting her. [ 123 ] According to Mr. Tsang, they left the Commodore a short while later because he wanted to get home and get some work done. His behaviour in drinking a considerable amount of alcohol after consuming cocaine makes no sense if only to risk driving through a roadblock to go home to work. [ 124 ] Mr.

Tsang testified that outside the club, L.B.V. asked him about having some fun and offered him oral sex. He asked her if she was good at it. He said they discussed finding a place to engage and it was L.B.V. who suggested a parking lot near her home. Mr. Tsang said he asked L.B.V. to “GPS” the parking lot for him because he always likes to take the best route to his destination. He contradicted employing this practice in saying he wanted to be mindful of roadblocks because he thought he might blow over and said they should take Prior Street.

This gratuitous level of detail in his evidence was puzzling. [ 125 ] Once parked, Mr. Tsang testified it was L.B.V.’s idea to get into the back seat and she did so by climbing over the middle console without exiting the car. She was not asked about this in cross-examination. He denied that part of his penis was exposed as L.B.V. got in the back seat. Mr. Tsang said L.B.V. straddled him in a “lap dancing” position and they engaged in foreplay during which L.B.V. said “spank me daddy”. She said she liked rough sex when he asked her in an effort to be sure he was getting the mood right. [ 126 ] While I accept Mr.

Tsang’s evidence that L.B.V. got into the back seat with him and consented to engage in some sexual foreplay, it is not believable that L.B.V. would have asked him to spank her. Moreover, given the encounter thus far in the back seat, a belief that L.B.V. was gearing up for rough sex with Mr. Tsang would be a fanciful and unfounded one on his part. The comments he testified to sounded contrived as if he were describing how he thought such an encounter might unfold rather than what really happened in the parking lot that night. [ 127 ] Mr.

Tsang said he directed L.B.V.’s hand to his erect penis and then re-positioned himself and his clothing so L.B.V. could give him oral sex. Mr. Tsang described L.B.V. using her hand and then her mouth on his penis. He said L.B.V. did not say anything to the effect that she did not want to be doing this. He said when she did this at the beginning she was deep throating it and that he was reinforcing it, not forcing her. He did not say he asked her or that she agreed to do so at this time. He said she was really good at giving oral sex and that she was in his top five. Mr.

Tsang said he wanted to give L.B.V. pleasure so he asked if he could finger her and she said “yes”. After she moved a bit, he started to do so. He said when he asked her if she wanted him to finger her harder, she said “yes daddy”. He said he then called her “slut” and “whore” and put two fingers inside of her and fingered her a bit harder.

[ 128 ] I find Mr. Tsang’s evidence about what happened at this point incredible. His descriptions of digital penetration and doing it harder seem likely to have caused L.B.V.’s injuries. I find L.B.V. would have been in pain and not moaning in pleasure.

I make the same finding with respect to his subsequent description of asking L.B.V. to sit on his lap so he could better penetrate her with his fingers. [ 129 ] The accused’s description about the prospect of intercourse being thwarted by the lack of a condom in his car when there was one available was contrived in my view and contrary to the level of control he conveyed about that evening and in court. He said L.B.V. told him she wanted to give him oral sex to finish him and she did so again. He said he used his hand to grab her hair lightly and guide her.

He recalled that she choked on it a bit and then used her mouth and hands again. Mr. Tsang said he asked L.B.V. if she spat or swallowed. When L.B.V. answered “swallow; spit is for losers”, he ejaculated inside her mouth. I find Mr. Tsang’s behaviour to have been focussed on himself at this time but for which it would have been apparent that L.B.V. was only participating so that he would finish and not because she wanted to or was enjoying it. [ 130 ] Mr. Tsang said after the event, they cuddled and made small talk.

He said L.B.V. asked if she was going to see him tomorrow and he said he would try, but he was stressed-out and busy. He said he parked his car in front of L.F.’s place and that before L.B.V. left she repeated that she would like to see him tomorrow and kissed him on the lips. He said they waved goodbye and he quickly drove off. [ 131 ] Mr. Tsang said about halfway home, L.B.V. messaged him inquiring whether he actually entered her and he denied having intercourse. He said he found her messaging a bit confusing and malicious as they had just had a great time.

He had asked her for her consent each time they did something and now she was doing a “180”. On his own evidence, he did not get her consent to everything he did that night; for example, when he put his hands over her breasts when they first got on the dance floor. His lack of interest moments earlier at L.B.V.’s invitation to meet again was at odds with his evidence that they had just had a great time, but is consistent with a non- consensual event where he got what he wanted without regard for her and drove away. [ 132 ] Mr.

Tsang’s detailed evidence about the encounter in his car must be examined in light of the text message he sent to L.B.V. in which he said he could not remember too much. His message to L.F. that he was still a little hung over and recovering makes it unlikely he could recall the event as well as he would have the Court believe, bringing the reliability of his testimony into question as well. I reject much of what Mr. Tsang gave evidence about as incapable of belief, highly improbable, and self-serving.

However, I must still carefully examine the evidence of the Crown in accordance with W.D . [ 133 ] L.F.’s evidence is significant. She told the Court it was Mr. Tsang who brought up the after-party and not the women. L.F. was not interested in going out after the first concert. She was tired and wanted to pace herself for the second night of the festival. Mr. Tsang described himself as a promoter and I find he likely would have known about the after-party in advance.

His ability to offer entry into the party to the two women he had just met would have been something he would have likely tried to use to his advantage. I do not accept his evidence that the women raised the prospect and not him. [ 134 ] As it got later, the alcohol L.F. had consumed earlier in the day wore off. She had nothing to drink at the Commodore. L.F. testified it was Mr. Tsang who insisted the women leave their fanny bags in his car because he said if they had them they would look like ravers and it would embarrass him at the after-party.

The photo of the two women taken that afternoon shows they looked like ravers, with or without their fanny packs. L.B.V. said her fanny pack matched her attire that night, something the photograph supports. It was an after-party for a rave concert and it makes no sense for Mr. Tsang to have been concerned that the two women would look like ravers. The bags were small and the women did not need to leave them with the coat check in the club. I accept L.F.’s evidence that it was the accused who pressed the point that the women leave their belongings in his car.

It seems likely he did so to ensure the women were tied to returning with him to his car later in the evening. [ 135 ] L.F. testified when L.B.V. got dropped off at her house by Mr. Tsang, she was surprised he did not wait for her to get to the door. She recalled that her friend looked a bit dishevelled and she was unusually quiet. She said she did not recall if L.B.V. said she gave Mr. Tsang a blow job but agreed that was possible. She testified that L.B.V. did not attend the second evening of the BC Place event. [ 136 ] L.B.V.’s testimony about what happened at BC Place adds support to the finding that Mr.

Tsang was the one who proposed the after-party idea and not the two women. Her evidence about the half hour spent in Mr. Tsang’s car before the Commodore is important. She said Mr. Tsang consumed cocaine and this lowered her opinion of him. She testified about Mr. Tsang’s peculiar insistence with the women leaving their personal effects in his car, something I find would give him a hold over the women at the club. I do not accept Mr. Tsang’s evidence that the women wanted to leave their things in his vehicle.

I find he likely gave the story he did to the Court as he realized the way the women described it could leave the impression he was attempting to control who the women would eventually leave the after-party with and how they would get home. [ 137 ] L.B.V. told the Court when the three of them got to the Commodore, Mr. Tsang told her to buy a round of drinks because he had got them into the event. When she only ordered herself and Mr. Tsang a drink because she knew L.F. did not want anything to drink, Mr. Tsang got the bartender to give him another drink. The women owed him and he was controlling the situation.

His insistence later on with buying the women tequila when L.F. did not want to drink and L.B.V. only wanted water, shows Mr. Tsang continued to ignore their wishes and exert his will. [ 138 ] L.B.V.’s evidence was that after L.F. left the club, Mr. Tsang asked her if she wanted more tequila and she said no because she was tired. Despite this, Mr. Tsang bought two tequilas and she drank one of them because she did not want to protest. Mr. Tsang denied buying this second round of tequila and said he bought a single gin and tonic that he split with L.B.V. I find the evidence of L.F. and L.B.V. that Mr.

Tsang drank heavily and ignored the wishes of the women tends to support a finding that he purchased the second round of tequila. [ 139 ] Mr. Tsang told the Court he was tired as the night wore on and anxious to get home to edit his photos. However, his activity at the time, including the consumption of cocaine and then a considerable amount of alcohol, is inconsistent with a person needing to attend to work-related matters. [ 140 ] After the second round of tequila, L.B.V.’s evidence was that Mr. Tsang suggested they go dance and she said agreed. She said Mr.

Tsang then started putting his hands around her waist and that he worked his hands up toward her breasts. He did not get her consent

to do so. She moved her hands to her side to subtly indicate she was not interested, but Mr. Tsang then grabbed her wrist, turned her around and kissed her. She immediately turned away from him to face the stage in the club. Mr. Tsang’s evidence was that, out of the blue, L.B.V. backed into him and started grinding his groin area and then the two engaged in French kissing. I reject his testimony about what occurred on the dance floor as unbelievable given L.B.V.’s lack of involvement with Mr. Tsang to this point in the evening and her flirting with Josh. [ 141 ] L.B.V. and Mr.

Tsang said they went to the upstairs area of the club and that Mr. Tsang held L.B.V.’s hand. L.B.V. said after Mr. Tsang sat down, he grabbed her by the waist and got her to sit on his lap, something she felt a little bit weird about but testified “you pick your fights”. L.B.V. told the Court Mr. Tsang then suggested the two of them leave the club and asked if she had ever had sex with a stranger and she said no. Mr.

Tsang agreed he asked this question. [ 142 ] Despite L.B.V.’s only interest in going to the after-party was to see Galantis perform and her friend having left not much earlier, the evidence shows she and Mr. Tsang then left the Commodore. L.B.V. said at this point all of the tequila hit her and she felt the most intoxicated she had all day. She stumbled down the stairs as they left the club. [ 143 ] L.B.V. candidly told the Court this part of the evening was a bit blurry for her and that she did not remember too much.

She acknowledged her recollection about the drive was lacking in detail and I find that consistent with her level of intoxication at that time. Upon realizing that Mr. Tsang’s driving was a problem, she sobered up a bit. Directing him to pull into the secluded parking lot rather than to the side of the road was a puzzling act, but it is to be considered in light of her s

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