R. v. Jamerson, 2023 BCPC 95

Citation: R. v. Jamerson 2023 BCPC 95 Date: 20230515 File No: 263546-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SABLE RAVEN THOM JAMERSON PUBLICATION BAN Pursuant to s. 486.4 (2) of the Criminal Code CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: K. Gallo Counsel for the Defendant: M. Longay Place of Hearing: Vancouver , B.C.

Dates of Hearing: October 20, 21, 2022; March 15, 27, 2023Date of Judgment: May 15, 2023 A Corrigendum was released by the Court on May 15, 2023. The corrections have been made to the text and the Corrigendum isappended to this document. [1] The accused Sable Raven Thom Jamerson is charged with sexual assault of the complainant R.H.B. on or about July 17, 2019,in Vancouver British Columbia, contrary to s. 271 of the Criminal Code. [2] The Crown theory is that Ms.

Jamerson sexually assaulted the complainant whilst she was an overnight house guest by digitallypenetrating the complainant’s vagina as she lay sleeping on the living room sofa. [3] Ms. Jamerson denies the allegations and states that the complainant misremembers the events due to her high level ofintoxication or she has fabricated the incident because she was trying to cover up her own embarrassment after inappropriately kissingMs. Jamerson. Ms.

Jamerson believes the complainant was worried that her mother would learn of her conduct and require her to returnhome to [country omitted for publication], her country of origin. To avoid this outcome, the complainant fabricated the allegation. [4] The prosecution called the complainant to give evidence. For the defence Ms. Jamerson and her partner, J.B., testified. [5] There is no dispute that on the date and place alleged, the accused and her partner hosted the complainant in their home.

Theonly issues in dispute are whether the Crown has established beyond a reasonable doubt the actus reus and mens rea of the offence ofsexual assault. Evidentiary Principles [6] In a criminal trial, the presumption of innocence is a constitutionally enshrined right of an accused person. As noted in R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320, the burden of proof rests on the prosecution throughout a criminal trial and nevershifts to the accused. The accused is not required to prove anything.

A reasonable doubt is based on reason and common sense and islogically connected to the evidence or absence of evidence. [7] The Crown’s burden to prove guilt beyond a reasonable doubt does not involve proof to an absolute certainty, and the standard isnot proof beyond any doubt. However, a determination that the accused is probably guilty is insufficient to meet the standard forconviction. [8] In this case, the Crown must prove beyond a reasonable doubt that Ms. Jamerson intentionally touched the complainant in asexual manner without the complainant’s consent.

Assessing Credibility and Reliability [9] The accused and complainant each testified as to their recollections concerning the night in question. As well, the accused’spartner testified. The credibility and reliability of each witness’s testimony must be assessed in light of the standard of reasonable doubt.As set out in the leading case on the assessment of credibility in a criminal proceeding, R. v.

W.(D.), (SCC), [1991] 1SCR 742: 1. if you believe the evidence of the accused, you must acquit; 2. if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; 3. even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [10] In R. v.

C.W.H., (1991) (BC CA), 68 C.C.C. (3d) 146, at 155, Wood J.A. noted that if, after a carefulconsideration of all of the evidence, the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal. [11] The W.(D.) analysis is meant to underscore that the rule of reasonable doubt applies to assessments of credibility. A verdict ofguilt must not be based on a credibility contest of simply preferring one account over the other but on an assessment of the whole of theevidence, including that of the accused, against the standard of proof beyond a reasonable doubt: R. v.

Conway, 2021 BCCA 460, at para.75; R. v. Hull, (ONCA) at para. 5. [12] Credibility relates to whether a witness is being honest and telling the truth during their testimony. Reliability is related to theaccuracy of the testimony, as determined by a witness’s ability to accurately observe, correctly recall and properly recount the eventbeing discussed. Demeanour alone is not a reliable measure of credibility or reliability, but may play a limited role in assessing thetestimonial veracity of a witness. [13] As set out in R. v.

Parent, 2000 BCPC 11 at para. 5, a number of factors may be taken into account in assessing credibility andreliability, including the internal consistency of the witness’s account, it’s consistency with previous accounts of the witness or otherundisputed evidence, and the significance of any inconsistencies in the context of the issues in material dispute.

Some inconsistencies areto be expected in human recall, but where an inconsistency involves something material about which one would be unlikely to beforgetful or mistaken, it may demonstrate a lack of credibility. [14] A trier of fact may believe none, some or all of a witness’s evidence and may attach different weights to different aspects of awitness’s evidence. What a judge may not do is make determinations of fact by relying on any preconceived notions of human behaviourarising from stereotypical or ungrounded common sense assumptions: R. v. Conway, at paras. 44-45 and R. v. Kruk, 2022 BCCA 18 at

paras. 41-42. That is not to say that a judge is precluded from weighing the sense or logic of a witness’s evidence, and may draw logicaland common sense inferences arising from context-specific and case-specific evidence: R. v. Campbell, 2023 BCCA 19 at para. 49 andR. v. R.K.K., 2022 BCCA 17 at para. 39. [15] In this case, if the accused’s denial of any sexual touching is accepted, she is entitled to be acquitted. If her denial is not acceptedbut her evidence either alone or in concert with other evidence raises a reasonable doubt as to her guilt, she is entitled to be acquitted.

Ifher evidence denying sexual touching is rejected and it does not raise a reasonable doubt, the Crown will not have proven its case unlessthe totality of the evidence the court accepts is sufficiently persuasive to establish the guilt of the accused beyond a reasonable doubt. Sexual Assault Legal Principles [16] As defined under s. 265 of the Criminal Code, sexual assault is the application of force to another person, without their consent,committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. [17]

Section 265 of the Criminal Code provides the following: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeon reasonable grounds that he has, present ability to effect his purpose; or …

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party orcausing bodily harm and aggravated sexual assault. [18] The allegation in this prosecution is that the accused touched the vagina of the complainant without her consent. The Crownmust prove the actus reus and mens rea of the offence beyond a reasonable doubt. [19] In R. v. Ewanchuk, (SCC), [1999] 1 SCR 330 and R. v.

Barton, 2019 SCC 33, the Supreme Court of Canada hasgiven guidance to trial judges on the actus reus and mens rea of the offence of sexual assault. [20] The actus reus of sexual assault comprises of proof of three elements: 1. physical contact or touching; 2. the sexual nature of the contact; and 3. the absence of consent. [21] Consent is defined as a “voluntary agreement”, being the conscious agreement of the complainant, to engage in the sexualactivity in question. This consent or agreement must exist at the time the sexual activity occurs.

Moreover, affirmatively communicatedconsent must be given for each and every sexual act taking place: R. v Goldfinch, 2019 SCC 38 at para. 44. [22] If the complainant testifies that she did not consent to the sexual touching, this is a matter of credibility to be weighed in thecontext of all the evidence.

If the complainant’s evidence of her subjective state of mind of non-consent is accepted, then the absence ofconsent is proved for purposes of the actus reus. [23] The mens rea of the offence comprises of proof that: 1. the accused intended to touch the complainant; and 2. the accused knew the complainant was not consenting, or was reckless of or wilfully blind to the lack of consent on the part ofthe complainant. [24] Because sexual assault is a general intent offence, to establish mens rea the Crown must prove beyond a reasonable doubt that theaccused intended to touch the complainant.

Case Law [25] The Crown relies on R. v. Ewanchuk, (SCC), [1999] 1 SCR 330; R. v. Parent, 2000 BCPC 11; R. v. Hull, (ON CA), [2006] OJ No 3177 (QL); R. v. J.J.R.D. (2006), (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.); R. v. Conway, 2021 BCCA 460; R. v. Tso, 2020 BCCA 358, and R. v. Lacombe, 2022 ONSC 3311. [26] The Defence relies on R. v. Kruk, 2022 BCCA 18; R. v. Khan, 2017 ONCA 114; R. v. Greif, 2021 BCCA 187; R. v. Snell, 2021BCSC 673, and R. v. Aslami, 2021 ONCA 249.

Summary of the Evidence [27] Ms. Jamerson is the common law or domestic partner of J.B. The complainant is J.B.’s niece. On July 17, 2019, Ms. Jamersonand J.B. lived in a two bedroom apartment in Vancouver. The complainant was 18 years old and had recently moved to Canada from[country omitted for publication] to attend university on Vancouver Island. Ms. Jamerson was in her early 40s.

[ 28 ] From time to time when the complainant travelled from Vancouver Island to Vancouver, she would visit her uncle and Ms. Jamerson, and would generally spend more social time with Ms. Jamerson on such occasions. [ 29 ] In the days before the allegation, the complainant travelled to Vancouver to take a friend to the Vancouver International airport. During this trip she arranged to meet with her uncle and Ms. Jamerson for a meal and was invited to stay overnight with them on July 17, before her planned return home on July 18.

The complainant had pre-arranged a ride to the ferry terminal the morning after the sleep- over to journey back to Vancouver Island. [ 30 ] On the evening of July 17, the complainant dropped off her friend at the airport at around 9:00 p.m. and arrived at her uncle’s apartment between 10:00 p.m. and 11:00 p.m. J.B. recalls she arrived somewhat earlier than that, around 8:00 p.m. [ 31 ] Ms. Jamerson was not at home when the complainant arrived. She was working that evening as a care aid worker assisting a disabled client with bedtime preparations. She was not expected home until after 11:00 p.m.

The complainant’s uncle let her into the apartment, briefly exchanged pleasantries with her, and then left her in the living room to watch television until Ms. Jamerson arrived home. [ 32 ] On Ms. Jamerson’s return to the apartment, J.B. came out of his bedroom to greet her. He joined Ms. Jamerson and the complainant in the living room for a short period of time before retiring for the night. The complainant and Ms. Jamerson remained in the living room to socialize, and to watch some television. [ 33 ] Both Ms.

Jamerson and the complainant agree they sat on the sofa in the living room where they consumed alcoholic drinks and shared a small amount of marijuana. They disagree on how much alcohol the other consumed. [ 34 ] They also agree that the complainant wanted to discuss matters of an intimate and personal nature with Ms. Jamerson. There is no dispute on this point. [ 35 ] The complainant had recently disclosed her sexual orientation to her mother and was trying to navigate living a more openly gay life. The complainant testified that Ms. Jamerson had previously disclosed to her that she was bisexual.

The complainant and Ms. Jamerson chatted about these issues. [ 36 ] The complainant and Ms. Jamerson disagree on what happened after the conversation ended. The complainant says she fell asleep on the couch and woke up to find Ms. Jamerson sexually assaulting her. [ 37 ] Ms. Jamerson says she did no such thing. She says that the only sexual overture came from the complainant who suddenly kissed her in an inappropriate way. This led Ms. Jamerson to bring the evening to an end and to send the complainant off to the spare bedroom.

The complainant denies having kissed the complainant. [ 38 ] Without recounting all of the evidence in detail, I will summarize the central points in the evidence that are not in dispute and focus on the significantly contested facts. [ 39 ] First, I am satisfied that Ms. Jamerson returned to the apartment sometime after 11:15 p.m. and brought some alcohol to share with the complainant. [ 40 ] J.B. greeted Ms. Jamerson at the door, spent less than half an hour socializing with her and the complainant and then turned in for the night. I find that J.B. retired for the night at about midnight and Ms.

Jamerson and the complainant continued to socialize in the living room for some time thereafter. [ 41 ] It is not contested that the two women shared a can of cider, consumed some glasses of wine and a small amount of marijuana from a bong. They also drank some shots of whiskey but disagree on who brought the whiskey. Ms. Jamerson testified that the complainant pulled out a bottle of whiskey from her bag and each had a shot. J.B.’s evidence on the source of the whisky is in accord with Ms. Jamerson’s testimony.

He recalled seeing what he believed was a whisky bottle in the complainant’s bag when she arrived at their apartment. The complainant denies furnishing the whisky and says the bottle was Ms. Jamerson’s and that Ms. Jamerson poured the whisky into shot glasses for them. [ 42 ] Ms. Jamerson says the complainant had two glasses of wine and a couple of shots of whisky that evening . The complainant recalls having just under two glasses of wine and only one shot of whisky.

There is not a significant difference between the complainant and the accused as to the amount of alcohol the complainant was said to have consumed. The complainant denies that she was heavily intoxicated or that her memory was impaired by alcohol. [ 43 ] Ms. Jamerson testified that at some point during their conversation, the complainant kissed her suddenly and without warning. Ms. Jamerson was “super, super surprised” by this kiss. She felt it was strange and inappropriate but did not say anything at the time.

She did not want to embarrass the complainant or hurt her feelings. [ 44 ] In cross-examination the description of the kiss and Ms. Jamerson’s reaction became more florid. It was a deeper kiss, and her reaction was one of shock, not merely surprise. She then said that it was a French kiss with the complainant sticking her tongue in her mouth, commenting that “and we know what that means”. Ms. Jamerson added that she was not only shocked but was “… blown away by the weirdness of it”. She said she let the kiss go on but does not recall how long it lasted.

She testified that she felt the kiss was strange and inappropriate. [ 45 ] Apart from these details about the kiss, Ms. Jamerson was unable to give details as to how long they sat together and socialized, where on the sofa they were seated, or how long the kiss lasted. [ 46 ] Ms. Jamerson testified that after the French kiss, she thought it was important to bring the evening to an end. She told the complainant it was time to wrap it up for the night and suggested that the complainant go to bed.

[ 47 ] The complainant denies kissing Ms. Jamerson in this way or at all. The complainant testified that it was Ms. Jamerson who hugged her and tried to kiss when she got up to leave after being assaulted but she turned her head to the side to avoid a direct kiss. [ 48 ] Ms. Jamerson testified that the complainant was wearing high-waisted, tight skinny jeans and the button at her waist had been undone to make sitting down less constrictive and more comfortable. Ms. Jamerson said the complainant was wobbly on her feet as she stood up so she steadied her.

She then did up the button on the complainant’s jeans waistband and shuffled her off to sleep in the spare room. [ 49 ] After the complainant went off to bed, Ms. Jamerson said she remained in the living room to continue to watch television. She fell asleep briefly and when she awakened, she collected her cell phone and made her way towards her own bedroom. She decided to stop in the kitchen to get some Tylenol and water for the complainant. She placed two pills on a ramekin and poured a glass of water, both of which she placed on a tray.

She entered the complainant’s room and left the tray on an ottoman near where the complainant was sleeping. She testified that she took these steps because she thought the complainant might have need of water and pills given the amount of alcohol the complainant had consumed. [ 50 ] Ms. Jamerson went off to bed and woke up the next day some time after the complainant had gone. She texted the complainant to check in with her and received a response from her. [ 51 ] Ms.

Jamerson learned about the sexual assault allegation later in the day when J.B. told her he had heard from his sister, the complainant’s mother, who was upset after hearing about the assault. Ms. Jamerson was in disbelief and sent a text to the complainant. She did not see the complainant again. Evidence of J.B. [ 52 ] J.B. testified to hosting the complainant on the evening in question. He confirmed the complainant waited in the living room until Ms. Jamerson arrived home.

He went to bed about a half hour after she returned home. [ 53 ] J.B. did not note anything out of the ordinary about the complainant’s appearance or demeanour. She did not appear intoxicated on her arrival or when he retired for the night. He noted the complainant had a bottle of whisky in her bag. He did not consume any alcoholic drinks that evening. [ 54 ] J.B.’s general recall of the events of that evening was not particularly detailed. He frequently spoke of what “would have” occurred and appeared to be piecing together what would have been likely rather than recounting from his actual memory.

However, his evidence was in accord with Ms. Jamerson’s evidence on three points: one, that the complainant brought a bottle of whisky; two, that she was wearing jeans that evening; and three, that he saw a glass of water and Tylenol beside the complainant’s bed when he entered the spare bedroom the following morning. Apart from those key points, J.B.’s general recall of the events of the evening was not particularly detailed or incisive.

Evidence of the Complainant [ 55 ] The complainant testified that the accused sexually assaulted her after she dozed off on the living room couch. [ 56 ] She denies that she kissed Ms. Jamerson, and denies that she made up the sex assault complaint to avoid facing adverse consequences, including the risk of having to return to [country omitted for publication]. [ 57 ] She also denies that she was intoxicated to the point that her memory was impaired.

She denies that she was wearing full-length pants on the evening in question. [ 58 ] The complainant testified that she was in the living room awaiting the return home of Ms. Jamerson from her night job. Ms. Jamerson texted her at 11:13 p.m. that she was on her way home and she arrived at between 11:15 p.m. and 11:30 p.m. They socialized together, sharing some of the alcohol that Ms. Jamerson had brought home with her. The complainant said she drank half a can of cider, less than two glasses of wine, one shot of whiskey and had a puff of marijuana. [ 59 ] The complainant said Ms.

Jamerson drank more of the wine than she did, over two glasses, and had several shots of whisky. She recalls Ms. Jamerson brought the shot glasses from the kitchen to the living room. The complainant denied bringing a bottle of whisky to the apartment. [ 60 ] They sat together for over an hour if not longer discussing some personal matters. The complainant was feeling the effects of the alcohol but did not feel impaired. [ 61 ] The complainant had recently disclosed her sexual orientation to her mother. Ms. Jamerson had told her she was bisexual. The complainant shared wanting to live a more openly gay life. Ms.

Jamerson does not dispute the general nature of their conversation. [ 62 ] At some point the complainant testified that she lay down on the couch while Ms. Jamerson remained seated to her right. The complainant lay on her left side, facing front, with her hands tucked near or under her head. Her back was parallel to the sofa back but her knees were bent so that her lower legs were half-tucked behind her. She was lying on her side in a semi-fetal position. [ 63 ] The complainant said she was wearing dance shorts of a heavy spandex material. She had on underpants beneath the dance shorts.

The complainant described the dance shorts as very short in length, with the pants portion extending down several inches below the groin line to cover the top of her thighs. The dance shorts were longer than bikini pants but shorter than cycling shorts which typically run lower down the thigh. [ 64 ] The complainant agreed that in her statement to police she said that Ms. Jamerson assaulted her by placing her hands in her pants. She explained that she used the word pants in a generic sense, not to the describe the garment she was wearing but to indicate the nature

of the assault by reference to where the accused’s hands had been. She used the word pants to indicate her lower garment, just as one might use the word shirt to mean a t-shirt and other style of shirts. [ 65 ] The complainant remembers that Ms. Jamerson was seated on the couch beside her and to her right. After she lay down onto her left side, Ms. Jamerson put a blanket over her and patted her back and rubbed her feet in a caring and motherly way. Ms.

Jamerson denies the complainant lay down or that she touched her. [ 66 ] The next thing the complainant remembers is the feeling of something brushing against her thigh, which she believed was Ms. Jamerson’s hand. She stirred but did not awaken. This sensation was not strong enough to rouse her from her sleep. She described her response as being similar to how a semi-asleep person stirs if a fly lands on them but they do not fully awaken.

She believed the sensation she felt was the accused’s hand on her thigh but she did not see it because her eyes remained closed and she drifted off to sleep again. [ 67 ] What did awaken her was the painful sensation of Ms. Jamerson’s hand in her vagina, with her fingers pushing in and out of her. Ms. Jamerson has placed her hand through the bottom leg portion of the complainant’s shorts, going under the fabric to reach her vaginal opening. From the bodily position described by the complainant, she was laying with her knees half bent.

Her lower legs angled back but her calves were not tight up against her buttocks. Her hips and buttocks were within reach of Ms. Jamerson’s position on the sofa. [ 68 ] The complainant, having come to consciousness by the pain in her vagina, lay still with her eyes closed. She did not know what to do and pretended to be asleep for a few moments. [ 69 ] Then Ms. Jamerson removed her hand, and placed both her hands on the complainant’s thighs to rotate them together from the side to the middle of the sofa in order to position the complainant onto her back.

The complainant used this movement to pretend she had awakened. When she opened her eyes, she saw that Ms. Jamerson’s hands were near the waist of her shorts as if she was intending to roll them down. The complainant agreed that the placement of the hands was an additional detail she had not told to the police but insisted that Ms. Jamerson’s hands were by her waist. [ 70 ] The complainant testified that she stood up immediately. She declined Ms. Jamerson’s invitation to stay up a while longer, made her excuses about being tired, and went off to the spare bedroom. She locked the door as she did not want Ms.

Jamerson to come into her room. The complainant testified that a few moments later, Ms. Jamerson knocked on the door and tried to turn the door handle. She then spoke through the door but her words were too muffled for the complainant to understand. The complainant did not respond. She pretended she had fallen asleep. [ 71 ] Very shortly thereafter, at 2:11 a.m., she received a series of short texts from Ms. Jamerson. They were: “Hey sweetie, r u ok?” followed by two short additional texts stating “I miss you”, followed by “So much”. The complainant did not respond to these texts. [ 72 ] Ms.

Jamerson denies sending these texts. [ 73 ] The complainant did not unlock the door of the spare bedroom until she got up to use the bathroom at around 5:00 a.m. after which she left it unlocked in case her uncle needed to enter to collect his things prior to leaving for work. She was asleep when he left for work. [ 74 ] The complainant left the apartment around 9:00 a.m. without saying goodbye. She waited outside for the ride she had arranged to drive her to the ferry terminal.

When it appeared that she was going to miss her intended sailing, she agreed with her ride to stop at a farmer’s market and to take a later ferry. She received another text from Ms. Jamerson after she left inquiring after her to which she responded. She returned to Vancouver Island on an afternoon sailing. [ 75 ] That day or the following day the complainant went to hospital to seek psychological care. She spoke to an intake nurse about her desire to seek professional help but did not specifically disclose the assault allegation at the hospital reception.

Once her intake was completed, she met with another nurse and she discussed the reason for her visit. This nurse asked if she had consented to what took place. She said no, which led the nurse to call the police. She underwent a forensics examination at the hospital and spoke with the RCMP. [ 76 ] The complainant disclosed the text messages on her phone from Ms. Jamerson to the nurse, the RCMP on Vancouver Island, and also to some of her friends and family. She showed the texts to the two City of Vancouver police officers who were investigating the matter.

Police asked her to take screen shots of the texts to forward to them, which she did. [ 77 ] Copies of the screen shots of the texts were authenticated after a voir dire , and marked into evidence. The complainant testified her device was functioning properly in receiving and sending texts. [ 78 ] The complainant gave two separate statements to the police, one right after the incident and another about a month later. She varied her time estimate in the second as to how long she was in the living room, but it is not in dispute that she and Ms.

Jamerson were together well past midnight, as noted in her first statement to police. [ 79 ] The complainant denies that she kissed Ms. Jamerson, and denies that she made up the sex assault complaint to avoid facing adverse consequences, including the risk of her mother demanding that she return to [country omitted for publication]. She maintains that she was wearing shorts and that the accused put her hand up her thigh to her groin to assault her. ANALYSIS AND FINDINGS OF FACT [ 80 ] I have reviewed the evidence in this case with care.

The central issue for determination is whether the facts show beyond a reasonable doubt that the complainant was sexually assaulted by the accused while she was asleep on the living room sofa. [ 81 ] There is a significant dispute about certain events which occurred that evening, including the following:

a. whether the accused texted the complainant at 2:11 a.m. or whether the complainant fabricated the text message; b. whether the complainant inappropriately kissed the accused which caused the accused to usher her out of the living room; c. whether the accused entered the complainant’s room with water and pills, or whether she could not because the complainant locked the door; d. whether the complainant was wearing dance shorts or long, skinny jeans; e. the amount of intoxicants consumed by each and whether the complainant’s capacity was impaired; and f. who brought the Jamieson whisky.

The Text Messages [ 82 ] One of the central factual issues in this case is whether Ms. Jamerson sent texts to the complainant time-stamped at 2:11 a.m. which the complainant said she received after she locked her bedroom door. Either Ms. Jamerson sent the texts and she is being untruthful in court about it, or the complainant is being untruthful and fabricated the texts. There is no middle ground on this point.

It is a central issue in the assessment of credibility of the parties and requires the court to address the legal principles governing the admissibility and permitted uses of electronic statements. [ 83 ] Judges are required to set out the purpose and use to be made of text messages to ensure compliance with the law of evidence: R. v. Langan , 2020 SCC 33 , rev’g 2019 BCCA 467 . [ 84 ] Text messages are documents containing out-of-court statements. They are presumptively inadmissible hearsay unless a permissible evidentiary pathway is available for their use at trial.

Judges must be cautious in not misusing out-of-court statements to prove the truth of their contents. Without exhaustively canvassing the rules for admissibility of electronic documents, I would summarize the key principles to be the following:

a) A noted in R. v. Ball , 2019 BCCA 32 at para. 70 , the texts must be authenticated under s. 31.1 of the Canada Evidence Act and once authenticated, the question of whether the text is genuine is a question of weight for the fact-finder which often turns on determinations of credibility.

b) Proof of integrity of an electronic document may be satisfied by establishing the reliability of the electronic document system in which it is recorded or stored, and screen captures may be one of the best ways of establishing an electronic posting at a specific point in time: R. v. Hirsch , 2017 SKCA 14 at para. 24 .

c) Judges are required to consider the reliability of the electronic messages and to consider the likelihood of the risk that details of electronic messages might be manipulated: R. v. Aslami , 2021 ONCA 240 .

d) An out-of-court statement by a non-testifying declarant is fraught with danger because its reliability cannot be tested by cross- examination. However, such statements can be admitted under the principled exception to the hearsay rule if the criteria of necessity and threshold reliability are met on a balance of probabilities: R. v. Bradshaw , 2017 SCC 35 .

e) An out-of-court statement by a testifying declarant cannot be used as a prior consistent statement to self-corroborate or bolster their in-court testimony: R. v. Stirling , 2008 SCC 10 at para. 5 .

f) An out-of-court statement by a testifying declarant may be used in limited circumstances, not for the truth of what was said, but for the narrow purpose of “narrative as circumstantial evidence”: R. v. Langan , supra, and R. v. Khan , supra at paras. 25-36 . That is, a declarant’s prior out-of-court statement may be used to assess credibility if the statement has probative value beyond mere repetition. As such, evidence of the sequence and timing of events and the emotional state of the declarant at the time of the utterance may assist the trier of fact in evaluating credibility: R. v. Khan , para. 44 .

g) An out-of-court statement by a testifying declarant may be used to impeach the credibility of the declarant at trial: R. v. Langan , supra . Authentication of the Texts [ 85 ] After a voir dire , I ruled that the text messages had been adequately authenticated in accordance with the test set out in R. v Ball , supra . To briefly summarize, the complainant’s evidence regarding the text messages was the following:

a) the complainant assigned the accused’s name to the accused’s telephone number in her cellphone contact log;

b) she received texts from the accused from that number and sent texts to the accused;

c) she showed the texts on her phone to the police, and others, very shortly after the assault, and provided screen shots to police on their request;

d) she did not notice anything that would make her think her device was not working properly in relation to the texts she received or sent around the time of the allegation; and

e) the screen shots in evidence are an accurate representation of the texts she received from the accused and she did not edit or alter the texts in any way. [ 86 ] I accepted the evidence of the complainant that she received the texts on her device at the times indicated from a number she had

for Ms. Jamerson’s cell phone. I am satisfied that the screen shots are an accurate representation of the texts in question. One text message from Ms. Jamerson appeared twice, but Ms. Jamerson agreed that its content was accurate. [ 87 ] I find that the texts in question were saved by the complainant as screen shots on Friday, July 19, 2019, at around 11:24 a.m., as labelled at the top of the screen shots. The alleged assault occurred in the early morning hours of July 18, 2019.

The complainant had travelled home to Vancouver Island the afternoon of July 18, and showed the texts to her medical care providers or the police shortly after her return home. I conclude the complainant disclosed the texts to third parties very shortly after the alleged offence. [ 88 ] I am satisfied by both direct and circumstantial evidence that the screen shots accurately depicted text messages on the complainant’s device and were received in or around the time of the offence: R. v. Hirsch , 2017 SKCA 14 at para. 18 . Genuineness of the Texts [ 89 ] The accused Ms.

Jamerson agrees that she sent all the texts referred to at trial except a series of texts sent at 2:11 a.m. A central issue is whether the three short texts time-stamped at 2:11 a.m. are genuine and authored by the accused. This is an issue of credibility in that either the complainant manufactured or manipulated the texts or the accused is lying about sending them. In order to properly analyze this issue, the entirely of the text chain must be set out, and it is as follows: Text #1: The accused admits sending this text.

Header: Wednesday 11:13 p.m. (referring to July 17, 2019) Sender: Sable Jamerson Recipient: The complainant Message: “There in 5” [ 90 ] The accused agrees she texted the complainant to indicate she was enroute after finishing work, and was expecting to be home in around 5 minutes. Text #2 The accused denies sending these texts.

Header: Yesterday 2:11 a.m. (referring to July 18, 2019) Sender: Sable Jamerson Recipient: The complainant Message 1: “Hey sweetie, r u ok?” Message 2: “I miss you” Message 3: “So much” [ 91 ] The complainant says she received these texts after the assault, and after she went into her room and locked the door. Ms. Jamerson knocked on her door and said something to her the sound of which was muffled. She did not respond to the accused at the door.

Shortly thereafter she received the above messages to which she did not respond. [ 92 ] The following morning, the accused admits she sent and received the following texts: Text Series # 3 Header: Yesterday 10:23 a.m. (referring to July 18, 2019) Sender: Sable Jamerson to the complainant Message: “Hey bear, did u head out?” “Hey bear, did u head out?” Sender: the complainant to Sable Jamerson Message: “Hi! Yes sorry you were asleep and I did not want to wake you! Thanks for letting me stay!” Sender: Ms. Jamerson “Np (smiley face emoji) I’ll call u in a bit.” [ 93 ] Ms.

Jamerson agrees she sent the above texts in the morning but only once, not twice, but the content is accurate. She received a response from the complainant and texted her back. [ 94 ] The last text message the complainant received from Ms. Jamerson was a lengthy one and will not be repeated here in full. Ms. Jamerson agrees she sent it the evening following the incident, on July 18, 2019, at 8:18 p.m. In brief, Ms. Jamerson wrote a lengthy text to the complainant stating that the complainant’s mother had called upset because “u said I put my hand in ur pants”. Ms.

Jamerson’s text denied doing any such thing, set out an explanation of what occurred and stated “I’m in shock rite now”. Ms. Jamerson admits she sent

this text. Analysis as to Genuineness of the Texts at 2:11 a.m. [ 95 ] Ms. Jamerson agrees that she sent all the texts in evidence except the ones time-stamped at 2:11 a.m. She contends that the texts are fabricated and not genuine. I reject Ms. Jamerson’s evidence that she did not author or send the impugned texts for a number of reasons. [ 96 ] First, this position requires the court to accept that someone else accessed Ms. Jamerson’s cellphone at around 2:00 a.m. and authored the texts and sent them to the complainant at the time. The only two persons in the apartment at the time, apart from Ms.

Jamerson, were her partner J.B. who was in bed, and the complainant who was in her bedroom. There is no evidence that either of them accessed Ms. Jamerson’s phone to send this text series. In fact, Ms. Jamerson testified that when she went to bed, after the complainant did, she retrieved her phone from the dining room. The theory of false authorship occurring during the evening in question is simply incredible in my view, and carries no persuasive force. [ 97 ] A second way to fabricate the texts would be if the complainant somehow manipulated her own device to insert the texts.

I reject this theory because there is no evidence to support it. It is pure speculation. It is of note that the impugned texts are embedded within other messages that Ms. Jamerson agrees she did send. Moreover, in the other texts from Ms. Jamerson in the chain, which she agrees she sent, her shorthand for the word “are” is the letter “r” and for the word “you” is the letter “u”. Both of these shorthand letters are used in the impugned text. [ 98 ] I distinguish the facts here from the decision in R. v.

Aslami , in which the court held that nothing in the contents of any of the text messages objectively established the accused as the sender. There was no reliable evidence in Aslami as to when the messages were sent. The accused did not testify in the case. By contrast, Ms. Jamerson testified to confirm that all text messages she sent to the complainant, except the ones at 2:11 a.m., were from her and sent around the times noted. [ 99 ] I firmly reject the accused’s evidence of manipulated data or a fabricated text. I am satisfied that the contested text is genuine, and it was authored and sent by the accused.

I find that Ms. Jamerson is being intentionally dishonest, as opposed to being merely mistaken, in her denial of authorship.

Permissible Use of Text Messages [ 100 ] The next issue relates to the permissible use of text messages in a criminal trial. [ 101 ] As earlier noted, a prior inconsistent statement made by a witness, but not adopted by that witness in court as true, is admissible only in assessing the witness’ credibility. [ 102 ] Text messages display a conversational thread, in this case statements by the complainant and the accused, and a trial judge must carefully delineate how and for what purpose the text messages from each declarant are being used in judicial fact finding. [ 103 ] A relevant case on this point is R. v.

Angel , 2019 BCCA 419 , which concerned Grindr messages exchanged between the accused and the complainant. After a helpful analysis at paras. 68-74, the B.C. Court of Appeal referred to its analysis in R. v. Gill, 2018 BCCA 275 , and stated that: - Grindr messages have probative value because the timing and nature of the conversation between the only two witnesses in this case could assist the trier of fact in assessing the credibility of two conflicting versions of the key event.

The Grindr messages thus provided circumstantial evidence relevant to assessing the credibility of the in-court testimony of both parties to the conversation : Gill at paras. 76–77 ; Khan at paras. 31-34 . [emphasis added] - A statement admitted under the narrative as circumstantial evidence exception is not received as evidence of the truth of its contents, but rather, for the fact it was made.

The circumstances in which it was made, its timing, or the context it provides may assist the trier of fact in assessing the truth of the declarant’s in-court testimony: M.C . at paras. 63, 66 ; Gill at para. 76 ; Dinardo at paras. 37– 38 [ 104 ] The Angel case was cited with approval by CJ Bauman in R. v. Langan at para. 98. [ 105 ] The defence states that the court’s fact-finding should be limited to simply determining whether Ms.

Jamerson sent the texts or not, and the credibility issue should be limited to whether the accused’s evidence of not sending the contested texts can be believed or otherwise raises a doubt. The defence submits the court should not assess or weigh the context giving rise to the texts, or draw any inferences from the contents of the texts. [ 106 ] I find the defence position is unduly narrow and inconsistent with the permissible uses set out in R. v. Angel and R. v. Langan .

I am satisfied the texts can be used as circumstantial evidence due to their timing, context, and tone in assessing the credibility of both the complainant and the accused: R. v. Angel at paras. 73-74. [ 107 ] The key point is to avoid “the impermissible use of finding credibility through repetition”: R. v. Langan , at paras. 99-100. [ 108 ] I am satisfied that the tone of the text messages can be used to discern the state of mind of Ms.

Jamerson at the time she sent the texts, and whether that state of mind is consistent with the evidence she gave in court. [ 109 ] This is supported by R. v Gill , cited with approval in R. v. Langan at para 93: [93] Inferences arising from the content and context of the prior consistent statements are permissible – “[w]here logic yields inferences based on the fact statements are made and the circumstances in which they were made there is nothing improper in drawing them.”

[underlining in original] [ 110 ] With those principles in mind, I turn to my assessment of the evidence. [ 111 ] The message “r u ok?” shows that Ms. Jamerson is concerned about the welfare of the complainant. This would be consistent with her concern about the level of intoxication of the complainant, as she testified. However, the words, “I miss you…so much” show a state of mind of longing or yearning. This state of mind is completely inconsistent with Ms.

Jamerson’s evidence that near the end of the evening, the complainant gave her a deep French kiss, which shocked her and caused her to send the complainant immediately to her room. She testified that she did not welcome this contact, was surprised by it, and it caused her to separate the complainant from herself. [ 112 ] Ms. Jamerson tone of emotional longing and desire in the text is so at odds with her evidence that she did not want the complainant to remain in the living room with her that her evidence of what caused the evening to come to an end must be categorically rejected.

I reject that it was the complainant’s French kiss, or any kiss, that brought the evening to an end. [ 113 ] I note that the complainant was never cross examined on the specific detail that she French kissed, not merely kissed, the accused. [ 114 ] I accept the evidence of the complainant that after pretending to wake up in the aftermath of the assault, she declined to stay with Ms. Jamerson in the living room and went into the bedroom and secured her room by locking it. I accept the complainant’s evidence that she rebuffed Ms.

Jamerson’s invitation to stay up longer and brought the evening to an end by leaving for the bedroom. [ 115 ] I find that there were two entreaties by Ms. Jamerson to connect with the complainant thereafter, one at the bedroom door and the second by text. It is clear that the complainant did not want to engage with Ms. Jamerson any further after leaving her presence although Ms. Jamerson clearly did. [ 116 ] The context and narrative disclosed by the texts in consistent with the complainant’s evidence. That is, Ms. Jamerson tried to turn her locked door handle and spoke, and the complainant did not respond.

As a result of that failed overture, Ms. Jamerson resorted to sending the texts to which the complainant again did not respond. [ 117 ] I conclude that Ms. Jamerson sent the texts in question. I reject her evidence and accept the evidence of the complainant as to when and under what circumstances the texts were sent and received. [ 118 ] I am also satisfied that the complainant’s room was locked and Ms. Jamerson is being dishonest in stating she entered it to leave pills and water beside the sleeping complainant.

The locked room prevented her from having access to the complainant’s bedroom. [ 119 ] I further find Ms. Jamerson’s testimony of leaving a glass of water with two loose pills, rather than the Tylenol container, to be contrived. It makes little sense to leave a sleeping guest with unidentifiable pills for their consumption on waking. [ 120 ] This finding leads me to reject J.B.’s testimony on his having observed the water and pills next to the complainant the morning after the allegation. [ 121 ] In

summary, I reject Ms. Jamerson’s evidence denying sending the impugned texts to the complainant and I accept the complainant’s evidence that she heard a knock from Ms. Jamerson on her locked bedroom door to which she did not respond. This led Ms. Jamerson to reach out by text. The timestamp on the texts aligns with when the evening’s social activities ended. Credibility Findings in Relation to the Accused’s July 18 - 8:18 p.m. Text [ 122 ] Ms. Jamerson learned within the day of the incident, the evening of July 18, that the complainant had accused her of sexual assault.

She responded by text denying the assault and provided a text narrative of what occurred at the end of their evening together. [ 123 ] She wrote in the text that because the complainant was very drunk, she helped her to “pull up” her pants, and gave her a hug and kiss. Thereafter, Ms. Jamerson went to bed because she had to work early. [ 124 ] She further wrote she only helped the complainant with her clothes and did not go into the spare room with her. [ 125 ] I understand that this is a text and not a full statement of the evening.

However, there is a clear contradiction in the statement and also a significant omission. The contradiction is between the text stating that she did not go into the complainant’s room, which aligns with the complainant’s evidence, and Ms. Jamerson’s in-court testimony was that she went into the room to leave water and pills.

A different narrative was presented at trial, one that suggested the complainant was very drunk and needed to be left pills to deal with a hangover. [ 126 ] The text also describes the accused helping to pull up the complainant’s pants, which differs from her in court testimony that she helped to button up her jeans. There is no reference to jeans in this text nor to buttoning them up. [ 127 ] Most important, what is critically missing from the text is the centrepiece of the accused’s testimony at trial, namely that the complainant had inappropriately kissed her. This is a glaring omission of a material fact.

This material fact underpins the defence theory that the complainant was drunk, acted inappropriately by French kissing the accused, then fabricated the sex assault allegation because she feared her indiscretion might lead her mother to call her back to [country omitted for publication]. [ 128 ] In my assessment, it is illogical that the complainant would invent a sex assault to cover up a kiss, because the repercussions of being sexually assaulted would be far more deleterious to her desire to remain in Canada.

A sexual assault of an eighteen year old studying abroad would be more likely to cause her mother to be concerned about her daughter’s safety and security, and provide a more compelling reason to have her return home. The Complainant’s Clothing

[ 129 ] There is a factual dispute as to what the complainant was wearing on the evening of the alleged assault. [ 130 ] Ms. Jamerson states the assault was not possible due to the complainant wearing long “high-waisted skinny jeans”. [ 131 ] J.B. also testified that the complainant was wearing jeans when she arrived. [ 132 ] The complainant testified that she was wearing short dance shorts made of heavy spandex material the night of the assault. [ 133 ] The defence cross examined the complainant about using the word pants in her statement to police.

She explained that her use of pants was not a reference to long pants or trousers. She used the word pants in a general sense, as one would say shirt to refer to either a t- shirt or dress shirt. She denied wearing long pants and was never specifically cross-examined about wearing long skinny jeans. [ 134 ] I find that the complainant’s explanation of her use of the word pants was believable and fits with the context of describing that someone had placed their hand up her pants. Ms. Jamerson used similar phraseology in her text to the complainant, stating that she did not “put my hands in your pants”.

Pants in this context does not serve to describe the specific type of garment but is a colloquial way of describing the behaviour in question. [ 135 ] I reject that the complainant was wearing jeans or skinny jeans and accept she was wearing dance shorts as she described. Inconsistencies in the Complainant’s Evidence [ 136 ] The defence points out that the complainant added certain details to her in-court testimony that were not in her statement to the police. The defence submits these detract from her credibility.

The complainant testified in court that she opened her eyes as she felt her thighs being moved to rotate her onto her back. She saw the accused’s hands positioned near the waistband of her shorts as if she was going to pull them down. The complainant did not provide this level of detail to the police. [ 137 ] I accept that the complainant drew an inference about what the accused intended to do with her hands at her waist which she did not disclose in her police statement. However, she did not resile from her evidence that Ms.

Jamerson assaulted her while she lay on her side, then placed her hands on her thighs to turn her. She described seeing her hands hovering over her waist as she opened her eyes and provided an opinion as to what this meant. I do not find that this additional detail impugns her credibility. [ 138 ] The defence also notes that the complainant testified that she was afraid to say anything to the accused in the aftermath of the assault because she feared violence. She however did not tell the police she feared violence.

The complainant said she was fearful in the moment and felt the accused had the capacity to become aggressive. I do not consider the complainant’s description of her state of mind to be implausible in the circumstances. It is supported by the fact she locked her bedroom door on leaving Ms. Jamerson’s presence. [ 139 ] A third area raised by the defence is that the complainant made up the assault after the hospital nurse suggested it as a possibility. The evidence is clear that the complainant went to hospital to seek emotional support and self-care immediately after returning to Vancouver Island.

She disclosed the events to the nurse, after which the nurse asked if the complainant had given consent to what occurred. This is not evidence of suggestibility unfounded by facts but rather disclosure of facts by the complainant that led to the nurse’s inquiry about her state of mind on the issue of consent. [ 140 ] I have also examined the complainant’s evidence for general responsiveness to questions and the content of her answers. I find that the complainant was a composed and responsive witness who gave a forthright account of the events in question.

She had a reasonably good recall of the central points of her interactions with the accused, and tried to answer counsels’ questions in an open manner. She was prepared to search her memory to recollect why she may have said or inferred something on a prior occasion, and endeavored to provide context and meaning to aspects of her prior written statements when cross examined on them. [ 141 ] Defence counsel suggested that the complainant presented in a positive way because she was a well-prepared witness instead of a credible witness. He suggested that preparedness should not be taken as a badge of credibility.

Defence states that the complainant had the benefit of her statements to police to review prior to trial. [ 142 ] In my view, just as an accused’s evidence should not be discounted merely because they have had Crown disclosure, a complainant’s evidence should not be given less credence merely from the fact that their out-of-court statements were available for review prior to testifying: R. v. Tso , supra at paras. 32-34 , and R. v. Fliss , 2002 SCC 16 . [ 143 ] As noted in R. v.

Fliss , prior statements are an aide memoir which any witness may review prior to trial so long as the witness testifies from present memory or present memory refreshed. The complainant testified in court from her present memory and did not need to have her memory refreshed. She conceded points on which her evidence differed from her previous statements and explained why that might be so. Credibility and Reliability of Defence Witnesses [ 144 ] Turning next to Ms. Jamerson overall credibility and reliability, I have already addressed why I have rejected Ms.

Jamerson’s denial of authoring the series of texts at 2:11 a.m. and I place little weight on her overall account of the events. Ms. Jamerson was a guarded witness who was not forthcoming when pressed for detail. She relied frequently on the passage of time to deflect answering questions. This lack of memory is hard to reconcile with the fact that she had learned, within hours of the complainant leaving her home, that the complainant had accused her of a serious personal violation. Such an accusation would have made details of the prior evening noteworthy and not easily forgotten. Ms.

Jamerson often appeared to be vague or unresponsive in cross-examination. I have rejected Ms. Jamerson’s evidence on material points in contention, and I find her evidence overall not to be credible. [ 145 ] I turn next to J.B.’s testimony because his evidence is said to be corroborative of certain aspects of Ms. Jamerson’s testimony. As noted, J.B.’s testimony left the impression that he was trying to piece together his recall by reference to things he usually did and not what he actually observed or recalled from that evening. His specific recall lines up with Ms. Jamerson’s in areas where I have found Ms.

Jamerson not to be credible, such as her entering the complainant’s locked room to leave water and pills or that the complainant wore full-length jeans. J.B.’s recollection of the whisky bottle and pills for a hangover appears to support the defence narrative that the complainant was too intoxicated to govern her own behaviour. For the reasons outlined, I reject that narrative as being inconsistent with the evidence I have accepted. I place no weight on J.B.’s evidence where it lines up with evidence of Ms. Jamerson that I have rejected or where it conflicts with the evidence of the complainant.

Conclusion [ 146 ] After a careful consideration of the evidence in this case, I reject the evidence of Ms. Jamerson where it conflicts with that of the complainant and I am not left in doubt by her evidence as to her guilt. Ms. Jamerson’s evidence had significant frailties in credibility and reliability as set out in these reasons. I specifically reject that the complainant French kissed Ms. Jamerson and fabricated the sexual assault as a cover. [ 147 ] I accept the evidence of the complainant as to what occurred at Ms. Jamerson’s apartment. The complainant was a credible and reliable witness.

While I accept that both the complainant and Ms. Jamerson had consumed intoxicants including alcohol, it was not to the extent that the complainant’s perception and memory were impaired. [ 148 ] I accept and find that after socializing with the accused, the complainant fell asleep on the sofa in her dance shorts. She was awaked by a feeling of pain caused by the accused assaulting her sexually by digital penetration through the crotch of the shorts. The complainant did not consent, and could not have consented to this violation because she was asleep.

The act of penetration was intentional and constitutes the offence of sexual assault committed by the accused. [ 149 ] For the reasons aforesaid, I am satisfied that, on the totality of the evidence that I have accepted, the Crown has proven beyond a reasonable doubt that the accused, Sable Raven Thom Jamerson, is guilty of the offence of sexual assault of the complainant. _____________________________ The Honourable Judge H.

Dhillon Provincial Court of British Columbia CORRIGENDUM - Released May 18, 2023 In the Reasons for Judgment dated May 15, 2023, the following change has been made: [1] The first sentence in paragraph [116] should read: The context and narrative disclosed by the texts is consistent with the complainant’s evidence. _____________________________ The Honourable Judge H. Dhillon Provincial Court of British Columbia