R. v. Kinamore, 2022 BCPC 341

Citation: R. v. Kinamore 2022 BCPC 341 Date: 20220614 File No: 260462-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DUSTIN KINAMORE PUBLICATION BAN Pursuant to s. 486.4(2) of the Criminal Code of Canada ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: M. Myhre Counsel for the Defendant: M. Vayeghan Place of Hearing: Vancouver , B.C. Dates of Hearing: July 12, August 23, September 9, 14, 2021, March 18, June 14, 2022 Date of Judgment: June 14, 2022

[ 1 ] THE COURT: Dustin Kinamore comes before the Court charged with Sexual Assault of G.L. [ 2 ] The case for the Crown is that it was a forced encounter of sexual intercourse. The accused testified and his evidence essentially is that with respect to the day in question there was consensual sexual activity which culminated in his performing cunnilingus upon her and that nothing went any further than that. [ 3 ] The two met in May of 2020 when G.L. worked at a motorcycle shop where Mr. Kinamore had purchased his motorcycle. They spoke for a period of time. He was attracted to her.

Not only was she interested in motorcycles, she was a pretty girl and when he wanted to know how to contact her, she shared her Instagram account with him. She shared an account which showed that she was a professional magician. He found that particularly alluring because he too is interested in magic. He admits that while he has performed for friends, he certainly is not as talented as she is. [ 4 ] They met on one occasion at an ice cream shop when they were both on their motorcycles and then they rode up to a lookout point.

While they were there, her father came because he uses the Find My Phone app on both of their cellular telephones. After her father came and left, they spent a period of time together. In his direct evidence that was it, and then they saw each other later on that same day he was not interested because she was with a male companion with whom she appeared to be flirting and physically attentive to. [ 5 ] Over the next period of two months I have before me direct messages that were sent between the two via Instagram. There are times when the complainant is flirtatious with Mr.

Kinamore, particularly early on in May, but over a period of time she makes it very clear, sometimes on every instant message, that she is not interested in having a sexually physical relationship with him. She does indicate that if they got to know each other, things might happen. But he indicates, equally as frankly as she was, quite frankly, that he is interested in a sexual relationship with her but not particularly a romantic relationship with her. [ 6 ] I do not know what happened between them in terms of July of 2020 because there are no direct messages.

There may have been, but the manner in which the direct messages were collected by the investigating officer are such that I do not know whether there were not any or whether they just were not provided to the investigating officer. But I do know that on July 31, 2020, Mr. Kinamore went back to the motorcycle shop where the complainant worked, spoke with her for a period of time, and they made arrangements to meet on August 3rd. He was going to be riding his motorcycle. She could not ride because she had injured her arm.

They were going to meet at his apartment downtown, they were going to watch a movie, they were going to have dinner, and then he was going to give her a ride home on his motorcycle so that she could be back on a motorcycle. [ 7 ] Bearing that plan in mind, she went to his apartment with her motorcycle helmet so that she would be protected while she was on the back of his motorcycle. She had taken the SkyTrain in after her mother had given her a ride to the SkyTrain station. Her evidence is that they went to look out at the view from his balcony.

Before she knew it, afterwards, they were in his bedroom and he commenced sexual activity with her. She asked him to slow down. He did for a period of time. He commenced again and he forced intercourse upon her. [ 8 ] His evidence is that they were on the balcony and he suggested they go in to watch television. Perversely, even though a television was within inches of the balcony door in the living room, they walked together to his bedroom. His evidence is that they looked at one another in the mirror. She smiled. He stood behind her, held her in a coupley way. She turned around to start kissing him.

They found themselves on the bed with her on top of him. He took her shirt off; she took his shirt off. He took her pants off; she took his pants off. Eventually as he was trying to arouse her, he performed cunnilingus. He asked her if she would fellate him. She said not until he finished what he was doing. He performed cunnilingus again. He again asked if she would fellate him.

She said no, and he said okay, then, and started scrolling through Save The Dishes to find a sushi restaurant and that she received a telephone call from someone at work and that she was upset because there was a suggestion that someone had taken the manager's keys. [ 9 ] Her evidence is, of course, that there was forced intercourse and that the phone call was from her to a friend of hers. The friend testified that she was traumatized during the phone call. Mr.

Kinamore's evidence is that she was not in the least bit traumatized and that she wanted to leave because she decided not to eat with him, just out of the blue while they were having a great time, but to go and meet her father and her father's friends for dinner. [ 10 ] While I do not believe his evidence, that is not enough because judges are not omniscient and judges have to assess whether the evidence of an accused person can nonetheless raise a reasonable doubt even if it is disbelieved. In this case it does not and cannot because Mr.

Kinamore's evidence was, if I may use this expression, amorphous in that it changed each time he was confronted with a fact which did not make sense. [ 11 ] So, for example, on September 9th when he was testifying his evidence was that the two of them had been very flirtatious and had been sexting and had sent nude photographs of one another to the other. Then when it was pointed out to him that his receipt of it may have been a crime -- I am not sure that he needed to worry if that were the case -- but in any event, he said, oh, no, no, no. It was only me who sent pictures; she sent me lingerie photos.

It is clear she did send photographs of herself in a bathing suit or in different bathing suits, but it is also clear that he did send a picture of himself which we do not know what it was. At page 5 of the direct messages he sent a photo which caused her to say, "Oh, fuck you." And he said, "Sure." And she said, "Keep dreaming, baby." Then he sent a couples note, which does indicate that he did in fact send a provocative, if not naked, photograph of himself. [ 12 ] His evidence today, September 14th, was even more interesting.

He was asked by the prosecutor about his suggestion to the Court that he runs a successful business. He admitted that the one person who provided a reference on his website was at least a fictional name, if not a fictional event. Then he said that he aims to be the next big security service in British Columbia and talked about having

great success yesterday in his evidence, which of course would not have been an event that existed before his evidence on September 9th. Then he said, "What I said in Court is what I say every day. It is a sentence that is now in my head." What he admitted to is that he tells himself things that are completely untrue and that he then believes them.

He tells himself that he runs a successful business, he tells people he runs a successful business, and then he believes that he runs a successful business. [ 13 ] Other areas that he was confronted about with respect to his evidence in direct examination and then challenged on cross- examination was when he suggested that his evidence with respect to again page 5 of the direct messages. When the complainant said, "I will destroy you," his evidence in direct had been that the direct messages that had preceded this screenshot were her reference to being able to destroy him sexually.

It then became, oh, we were talking about wrestling, maybe it was naked wrestling, maybe it was on a bed. But it kept changing as he was being cross-examined. Interestingly, his initial suggestion in direct evidence is completely inconsistent with every single text, every single direct message that the complainant sent when she said, "I am not going to have sexual relations with you." [ 14 ] When he was asked about why he used the expression "friends with benefits" in cross-examination, his evidence was it could be anything. It does not have to be sexual.

I think the Court is entitled to take judicial notice of the fact that that is not what that expression refers to. That expression refers to people who are not in a romantic continuing relationship but are more than willing to be physically intimate with one another. His evidence was often directly in contradiction to what his messages were, so while he made it clear that he was uninterested in having a relationship with the complainant, he kept testifying that even though those are what the black and white words were, that is not what he meant.

He meant that he was interested in having a relationship with her. [ 15 ] He has asked the Court to believe that a young girl who had made it clear that she was not going to have sexual relations with him within minutes of being in his home, turned to him, commenced the sexual activity by kissing him, was on top of him in the bed, was willing to take his clothing off and was moaning sexually.

Then when she was not prepared to fellate him, he was okay then, let's order sushi. [ 16 ] What is most interesting, though, is that he testified last week that when he texted her the next day and said, would you like to hang out and she said no, he decided she was too wishy-washy for him and he blocked her on Snapchat and on Instagram and deleted from his telephone all of their Instagram communications. Yet this morning when he was being cross-examined he added something.

He added that he asked her if something was wrong, and she said, "Yeah, I don't want to see you again." That again is in complete contradiction to his evidence in direct that she just appeared to be wishy-washy and he was tired of her back and forth behaviour, so he was going to delete her and any reference to her from his telephone.

When it was pointed out to him that he had been persistent throughout the months that they had known each other and that all of a sudden he was just accepting her "I didn't wish to hang out," all of a sudden there was a further conversation between them that just came to him today. [ 17 ] There were many other portions of his evidence where there was a significant fluidity between what he had said in direct examination and then altered on cross-examination when confronted with the fact that what he had said in direct evidence did not make much sense.

When I consider the totality of that and the fluidity of his story, it cannot raise a reasonable doubt. [ 18 ] So then I have to consider the evidence of the complainant. His counsel acknowledges that the actus reus exists and I have to consider mens rea . The only evidence before this Court, having rejected his evidence, is that she did not consent and he did not do anything to find out if she was consenting. The mens rea has been proven, and in the result I convict Mr. Kinamore of the offence of Sexual Assault. (REASONS CONCLUDED)