R. v. N.J., 2023 BCPC 152

Citation: R. v. N.J. 2023 BCPC 152 Date: 20230622 File No: 264004-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. N.J. PUBLICATION BAN Pursuant to s. 486.4 (2) of the Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: H. Burley Counsel for the Defendant: A. Lagemaat Place of Hearing: Vancouver, B.C. Date of Hearing: February 13, 15, 21, 22 and 27, 2023 Date of Judgment: June 22, 2023

INTRODUCTION [1] The Crown alleges that N.J. sexually assaulted R.G. as she slept. N.J. denies that sexual contact occurred. No one witnessed theevent, nor, is there any forensic evidence. A trial was held with various witnesses testifying for the Crown and the defence. The centralissue is whether the evidence proves beyond a reasonable doubt that N.J. sexually assaulted R.G. This determination requires a carefulconsideration of the credibility and reliability of the witnesses. BACKGROUND [2] R.G. and N.J. worked at a Vancouver restaurant and despite this, they had little to no contact with each other.

As for theallegations, on July 28, 2019, several employees went out to celebrate a co-worker who was leaving the country. Drinks were consumedand when the evening concluded, R.G. went to N.J.’s apartment. [3] At the apartment, R.G. and N.J. ended up sharing a bed. R.G. was intoxicated when she went to sleep and when she woke upN.J. was anally penetrating her. N.J. testified that when they went to bed, that he cuddled and kissed R.G. but stopped when she askedhim to.

He denied any sexual contact. [4] In these reasons, I review the relevant legal principles, I summarize the evidence, I consider the credibility and reliability of thewitnesses and thereafter I state my findings and conclusion. LEGAL PRINCIPLES Presumption of innocence and proof beyond a reasonable doubt [5] The presumption of innocence is a fundamental principle of criminal law that forms the foundation of the Canadian justicesystem. Aptly described in R. v. Oakes, (SCC), [1986] S.C.J. 7 at para. 29 as, “lying at the very heart of criminal law.” [6] The presumption of innocence is also enshrined in

section 11 (

d) of the Canadian Charter of Rights and Freedoms: 11. Any person charged with an offense has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [7] The Crown bears the burden of proving an accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is proofto a high standard and it is more than a finding that the accused is likely guilty or probability guilty. That said, proof beyond a reasonabledoubt is not proof to absolute certainty: R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. Additionally, reasonable doubt is notfar-fetched or frivolous.

It must be based on reason and common sense that logically flows from the evidence or lack of evidence. [8] Determining if the Crown has proved its case beyond a reasonable doubt requires an examination of all of the evidence. It is anerror when deliberating to think of standards of proof as applying to individual items of evidence: R. v. Morin, (SCC),[1988] 2 S.C.R. 345. Assessing credibility and reliability [9] The principles relevant to assessing credibility and reliability are helpfully explained in R. v.

Jamerson, 2023 BCPC 95 at paras.12-14: [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 11at 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 18atparas. 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 19atpara. 49 and R. v. R.K.K., 2022 BCCA 17at para. 39.

Credibility and proof beyond a reasonable doubt [10] In cases where there are different versions of what transpired the court must not select one version in preference of the other,rather, all of the accepted evidence must be considered in determining if the Crown has proven the accused’s guilt beyond a reasonabledoubt. [11] R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, provides guidance on credibility and its interaction with the standardof reasonable doubt and I instruct myself accordingly:

1. if I believe the evidence of N.J. I must acquit; 2. if I do not believe the testimony of N.J. but I am left in reasonable doubt by it, I must acquit; 3. even if I am not left in doubt by the evidence of N.J, I must ask myself whether, on the basis of the evidence which I do accept,I am convinced beyond a reasonable doubt by that evidence of the guilt of N.J. [12] In addition to the above, I also apply Wood J.A.’s observation in R. v.

C.W.H. (1991), (BC CA), 68 CCC (3d)146, where at page 155 it was noted, if after a careful consideration of all of the evidence, the trier of fact is unable to decide whom tobelieve, the accused is entitled to an acquittal. Sexual assault legal principles [13] Sexual assault is defined as the application of force to another person, without their consent, committed in circumstances of asexual nature, such that the sexual integrity of the victim is violated:

section 265, Criminal Code, R.S.C. 1985, c. C-46. [14]

Section 265 of the Criminal Code reads: 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 believe onreasonable 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 or causingbodily harm and aggravated sexual assault. [15] The allegation in the instant matter is that N.J. sexually penetrated R.G. without her consent. N.J. cannot be convicted unless theCrown proves the actus reus and mens rea of sexual assault beyond a reasonable doubt. [16] Guidance with respect to the actus reus and mens rea for the offence of sexual assault is found in R. v. Ewanchuk, (SCC), [1999] 1 SCR 330 and R. v. Barton, 2019 SCC 33.

From these authorities the actus reus of sexual assault comprises of proofof three elements: 1. physical contact or touching; 2. the sexual nature of the contact; and 3. the absence of consent. [17] Consent is defined as a “voluntary agreement”, being the conscious agreement of the complainant, to engage in the sexualactivity in question. Consent must exist at the time the sexual activity occurs. It must be affirmatively communicated and it must begiven for each and every sexual act: R. v.

Goldfinch, 2019 SCC 38 at para. 44. [18] If the complainant testifies she did not consent to the sexual touching, this is a matter of credibility to be weighed in the contextof all the evidence.

If the complainant’s evidence of her subjective state of mind of non-consent is accepted, then the absence of consentis proved for purposes of the actus reus. [19] In terms of the mens rea it requires proof that: 1. the accused intended to touch the complainant; and 2. the accused knew the complainant was not consenting, or was reckless or wilfully blind to the lack of consent on the part of thecomplainant. [20] Given that sexual assault is a general intent offence, the Crown must prove beyond a reasonable doubt that N.J. intended to touchR.G.

EVIDENCE L.M. [21] L.M. is 23, a close personal friend of R.G. and in the summer of 2019, they were roommates. L.M. testified that on the night inissue, R.G. had plans to attend an evening work event and L.M. recalls R.G. leaving their residence for the event. [22] The following day, at approximately 6:00 a.m., L.M. received a series of phone calls and text messages from R.G. She was upsetand crying and she stated she was in trouble. L.M. tried to assist by urging R.G. to come home. L.M. offered to pay for a taxi, but R.G.stated that she would walk home.

L.M. convinced R.G. to electronically share her location and on receiving this information, L.M.discovered that R.G. was in close proximity to the residence of a mutual friend. [23] L.M. contacted the friend and asked him to locate R.G. and take her back to his place. L.M. then hired a taxi and headed towardthe friend’s home where she hoped to meet up with R.G. While heading to the friend’s home, L.M. tried to remain in phone contact with

R.G. and she was relatively successful but there were occasions where contact was lost. L.M. estimated that it took her approximately 20- 40 minutes to reach R.G. [ 24 ] When L.M. arrived at her friends place R.G. was sitting on a couch and digging her nails into her legs and saying that it was not safe to talk. She was upset, crying, and saying she had been raped. After approximately 20-30 minutes, L.M. took R.G. home in a taxi. [ 25 ] L.M. was asked about R.G.’s level of intoxication and she testified she knew that R.G. had been drinking but she could not comment on her level of intoxication.

R.G. [ 26 ] In the summer of 2019, R.G. was living in Vancouver with her roommate L.M. and working as a hostess at a Vancouver restaurant. [ 27 ] On July 28, 2019, R.G. worked until 6:00 or 7:00 p.m. Thereafter, she went down to the waterfront and spent time waiting for her co-workers to finish work. At about 11:00 p.m. she had a drink with her co-workers and then about 30 of them made their way to the Colony bar for the purpose of saying goodbye to a fellow employee who was leaving the country. [ 28 ] At the bar, the group talked and played games.

N.J. was also at the bar and R.G. does not recall interacting with him. As for other contact, they minimally interacted while at work and they did not socialize outside of work. [ 29 ] The group stayed at the Colony until it closed and then they went to the Roxy nightclub where they danced, talked and drank. R.G. is not sure what she had to drink at the Roxy. She believes the group stayed until closing time and estimates that it closed at approximately 3:00 or 4:00 a.m. [ 30 ] While at the Roxy, R.G. and N.J. did not have any contact except for when the group was preparing to leave.

In this regard, they were in the lobby discussing what they were going to do and R.G. recalls N.J. being there and she feels he was part of the conversation. R.G. ultimately left the Roxy and she went to a bus stop; however, on arrival she learned that she had missed her bus. [ 31 ] R.G. did not feel comfortable waiting for a bus on Granville Street, so she returned to the Roxy. When she arrived, the group was outside and within the group were J.S., B.B. and N.J. R.G. explained to the group that she missed her bus and they invited her to N.J.’s place to play video games.

At first R.G. was uncertain if she wanted to go but the others explained that N.J. lived nearby and that she could hang out and then head to the bus in an hour. [ 32 ] R.G. agreed to accompany the three. She testified she was feeling “tipsy” but not extremely drunk. She felt that J.S. and B.B. were about the same as her and she thought N.J.’s level was similar if not more intoxicated.

R.G. recalls the first part of the walk and she remembers that it was pleasant, that there was joking and that they had a discussion about how they were less cool because they were going to play video games while the others were going to an afterparty. [ 33 ] R.G. does not recall the last half of the walk and only remembers being inside N.J.’s apartment. She remembers laying on a couch and someone asking her if she wanted to go sleep somewhere and being offered to go lie down in N.J.’s room. She does not recall who made the offer.

She thinks someone helped her up and that N.J. took her to his room. [ 34 ] Once in N.J.’s room, R.G. asked if she could charge her phone. N.J. then helped her with charging her phone. R.G. then took off her shoes and she got into bed. At the time she was wearing a top with a men’s oversized shirt, a skirt, tights, underwear and socks. By this stage, R.G. describes herself as blackout drunk and she based this on the fact that she could not stay awake despite intending to catch a bus. [ 35 ] R.G. quickly fell asleep quickly but woke up when N.J. entered the room.

N.J. was wearing track suit bottoms and he asked her if he could sleep there as well. R.G. indicated that it was okay and she moved to one side of the bed and passed out. She then woke to the sound of N.J. lighting a marijuana bong. [ 36 ] When R.G. woke up she was quite confused and she stared and watched N.J. use the bong. N.J. then offered the bong to her stating he usually did it to help him sleep. R.G. then took an inhale from the bong. She then laid down on the other side of the bed and “went back to sleep or kind of passed out.” (Transcript.

February 21, 2023, p. 13, l. 38-39) [ 37 ] The next thing that R.G. recalls is, N.J. moving closer to her and asking her, “Is this okay?” R.G. stated “sure” or “yeah”. At this stage R.G. had her back to N.J. and according to her testimony she passed out fairly quickly after this exchange. [ 38 ] R.G. next woke to N.J. anally penetrating her. He was pressed up against her, she could feel him inside her and he was moving back and forth. R.G. thinks N.J. was kissing her neck and maybe grabbing on to her hips. As this was occurring N.J. was saying “Is this okay?” and “This is okay, right?” R.

G. was confused and she said “yes”. She testified that she didn’t really know what was going on or who it was or where she was. As such, it seemed appropriate to go along with it and it was at this point that she passed out. She does not recall if she touched N.J. R.G. testified that she did not consent to the sexual contact. [ 39 ] The Crown asked R.G. what she was physically feeling when she was being penetrated and R.G. responded: I guess I was feeling a lot of pain down there, a very intense physical sensation and, yeah. And I guess also him potentially kissing my neck. (Transcript.

February 21, 2023, p. 16, l.15-17) [ 40 ] When R.G. next woke she could see that it was bright out. N.J. was sleeping on the other side of the bed. R.G. was not thinking straight but felt that she had to get up and leave. It was at this point that she realized that she was no longer wearing her skirt, tights or socks. Everything was confusing and she was not thinking rationally.

[ 41 ] After a brief period of time, R.G. managed to get her work clothes from her bag. She put on her work clothes and she retrieved her phone. She then started texting her roommate and she started to cry. N.J. woke up and he asked her if she was okay and she said that she was and he went back to sleep. [ 42 ] R.G. then fled the apartment and she ran down the stairs and once outside she started running. She testified she was having a panic attack and that she was not thinking rationally.

According to R.G., it was at this point that she pieced things together and by this she meant that she pieced together that she had been assaulted. When R.G. fled the apartment she left her skirt, tights and socks behind and she never saw them again. [ 43 ] Eventually, R.G. stopped running and she sat down. R.G.’s friend, D., ultimately located her and took her back to his apartment. At the apartment, R.G. was crying and D. tried to comfort her but she pushed him away and locked herself in the bathroom where she remained until L.M. arrived. [ 44 ] When L.M. arrived, R.G. came out of the bathroom.

She was still crying and upset. L.M. tried to convince her to lie down but R.G. did not want to lie down and she became more distressed. R.G. felt pain and throbbing in her anus area and according to her testimony, this made her cry “a lot more.” Ultimately, R.G. and L.M. left and they took a taxi back to their place. [ 45 ] Once home, R.G. was able to sleep and when she woke, she noticed she had a bruise on the inside of her wrist and one on her thigh. She thinks she was touched in these places but is not 100% certain.

She continued to feel pain in her anus for a few days and she noticed that blood was coming out for a day or a day and a half. [ 46 ] When cross examined about the blood, R.G. acknowledged that she was not a 100% certain where the blood was coming from and that she did not think that it was menstrual blood because it was not the type of blood she had seen before. [ 47 ] R.G. never saw N.J. again. However, shortly after the event, she received a Facebook message from N.J. that read: I just wanted to say again that I’m very sorry for what happened the other night.

All day it has been bugging me, and I really can’t stress to you enough that I’m not the type of person to take advantage of anyone like that. It was an incredibly stupid act on my behalf. Something I never thought I would find myself doing. The last thing I would want to do is make anyone feel uncomfortable, and I completely understand if you felt uncomfortable around me. I truly am sorry. I really hope this doesn’t affect us as friends/co workers especially in the workplace. (Exhibit 1) [ 48 ] R.G. did not go to work the next day, rather, she called in sick.

She then resigned on the day of her next scheduled shift. R.G. attached a copy of N.J.’s Facebook message to her resignation letter. [ 49 ] Counsel for N.J. suggested to R.G. that she made up the allegation as a means of explaining to her boyfriend that she spent the night with another man. R.G. denied the suggestion. [ 50 ] Counsel also cross-examined R.G. about attending UBC hospital. She acknowledged attending the hospital at about 6:00 p.m. on the evening after the event.

She also acknowledged attending a few days later for a second examination and she believes that swabs were taken of her anal and vaginal areas. [ 51 ] During cross-examination, R.G. confirmed she was on two prescriptions for mental health issues at the time of the incident and that she did not ask her doctor about mixing the medications with alcohol and marijuana. [ 52 ] Counsel questioned R.G. about her responses during a police interview.

Specifically, she was asked about the portion of her police statement where the officer asked her about her certainty with respect to being anally penetrated and R.G. testified she thought she used 100% in her response to the question and that she then hesitated because in her studies she was taught not to say a 100% about anything. [ 53 ] Counsel took R.G. to her interview response, where she stated: Nearly 100 percent, memory hazy, something happened and it was not something that I was not aware of consenting to. [ 54 ] R.G. responded to the above by testifying she felt the transcript was slightly off but that it was roughly what she said. [ 55 ] Counsel also took R.G. to the following interaction she had with the interviewing officer, Detective Dahl.

Det. Dahl: Is it possible and forgive this question for being a bit repetitive, but I just want to cover this off in every direction, is it possible that N.J. did not anally penetrate you?

R.G.: It is possible but I would not consider it like, it’s very like, very like, minutely possible but I don’t believe I would have reacted that way afterwards or continue to have experienced as to issues of as a result of that one night if it didn’t happen. [ 56 ] Counsel then suggested to R.G. that it was her reaction after she woke up that made her think she had been anally penetrated and R.G. responded that it was because of a combination of things. [ 57 ] R.G. was taken to another portion of her police statement where she was asked what things factored in her mind that led her to a near 100% certainty that she was anally penetrated and she agreed that she responded to the question that it was her actions afterwards, specifically, the way it has affected her in the past two years, the way she lashed out at D.; which she rationalized as something she would not have done if she had not had a bad experience with a man.

B.B. [ 58 ] In July of 2019, B.B. worked at the same restaurant as N.J. and R.G. and he was part of the group that went to the Colony bar. He

testified they arrived at the Colony at about 9:00 p.m. and they left at approximately 2:00 a.m. [ 59 ] On leaving, N.J., R.G., J.S. and himself walked together for about 15 minutes. Ultimately, he and J.S. decided to get some food and then go to J.S.’ apartment. Before the group separated, B.B. asked R.G. how she was going to get home and she explained that she was going to take a cab. [ 60 ] During the 15 minutes that the group walked together, B.B. did not see any aggressive behavior.

He could not recall what was discussed but he remembers N.J. giving R.G. a piggyback ride. [ 61 ] As for everyone’s level of intoxication, B.B. described himself as being 5 out of 10, with 10 being intoxicated without passing out and 1 being sober. He explained he could still observe and that he was not stumbling. He said that everyone was about the same; and from his perspective, all could carry on a conversation and he was not concerned about anyone being too drunk.

In terms of his experience assessing levels of intoxication, B.B. testified he is trained to assess intoxication so that he would not over serve customers. [ 62 ] Since the event, B.B. and N.J. have had contact. They are friends and they have spent time together and they have discussed the case from B.B.’s point of view. J.S. [ 63 ] J.S. has known N.J. for a number of years. They are good friends and in the summer of 2019, they were working at the same restaurant.

He first met R.G. when she started working at the restaurant. [ 64 ] In terms of the Colony, J.S. recalls he and a group of co-workers arrived between 9:00 and 10:00 p.m. and that he left between 12:00 a.m. and 1:00 a.m. with N.J., B.B. and R.G. While at the Colony he did not see R.G. or N.J. interacting. [ 65 ] The group then walked together and it was J.S.’ understanding that B.B. was spending the night at his place and that N.J. was going to his own apartment.

As for R.G., J.S. offered to call her a cab but she declined and said she would take the bus home. [ 66 ] J.S. and B.B. left N.J. and R.G. approximately 2-3 blocks from N.J.’s apartment. At this point, J.S. assumed that R.G. would be taking the bus home. J.S. and B.B. then stopped and got some fast food. [ 67 ] In terms of his level of sobriety, J.S. testified he was about a 5 out of 10, which for him, meant he had some drinks but that he knew what was going on and that he was coherent. He did not think that anyone was too drunk and he felt all could converse and all knew what was going on.

N.J. [ 68 ] In the summer of 2019, N.J. was working at the same restaurant as R.G., B.B. and J.S. He and R.G. interacted minimally at work and they had no contact outside of work. [ 69 ] On the night in issue, N.J. arrived at the restaurant at 9:30 p.m. He said that he and a group of approximately 25 co-workers made their way to the Colony bar so they could acknowledge a co-worker who was leaving the country. [ 70 ] N.J. and others stayed at the Colony until it closed and thereafter they went to the Roxy nightclub. They stayed there until closing which was approximately 3:00 a.m.

N.J. did not recall interacting with R.G. during the evening. [ 71 ] N.J., B.B., J.S. and R.G. left the Roxy together. N.J. was headed to his apartment and it was N.J.’s understanding that B.B. and J.S. were headed to J.S.’ apartment. Given their respective destinations, they walked together until they separated. N.J. does not know how R.G. came to join the group and he thought that she was headed to J.S.’ place. [ 72 ] The walk was unremarkable with some joking and at one point, he piggybacked R.G. N.J. testified that the group was at a similar level of intoxication and he put himself at a 6½ with a buzz.

He stated that everyone was coherent and could walk. On cross-examination, N.J. acknowledged telling the police that J.S. was significantly more intoxicated than himself and B.B. [ 73 ] When B.B. and J.S. separated, R.G. remained with N.J. and this prompted him to ask her if she was taking a taxi or bus home. N.J. testified that R.G. said a taxi was too expensive and that she was uncertain when the next bus was coming nor was she familiar with the bus routes. She then suggested to N.J. that she go to his place. N.J. informed her that he had a roommate and that she would have to stay in his (N.J.’

s) bedroom and R.G. responded, “okay.” [ 74 ] When they arrived, N.J.’s roommate was sleeping in the living room area. This was because N.J.’s apartment had one bedroom which N.J. occupied while his roommate used the living room area as a bedroom. N.J. then retrieved a beer from the fridge and the pair went to his bedroom where he sat at his computer table and had the beer. He then smoked marijuana from a bong and he offered some to R.G. who accepted. He also offered R.G. some pyjamas and she accepted them.

N.J. then went to the bathroom and he changed into pyjama bottoms and when he returned R.G. was in the pyjamas he had loaned her. [ 75 ] The pair got into bed and were laying back to back. At one point, N.J. asked R.G. if she would like to cuddle and she stated “yes.” N.J. moved in behind her with his chest to her back and he started kissing her cheek and neck area. N.J. testified he asked R.G. multiple times if it was “okay” and she responded “yes.” [ 76 ] At one point, R.G. reached around and placed her hand on the exterior of his pyjama bottoms where his penis was.

Shortly thereafter, R.G. brought her other hand up to the area of her neck and cheek where N.J. was kissing her. N.J. looked at R.G. and asked if something was wrong, and she responded, “could you please stop.” N.J. immediately stopped and he moved away. He then sat up and apologized and R.G. responded by saying, “it’s okay, let’s just go to sleep.” He testified that he felt “bad” shame because he had made R.G. feel uncomfortable.

[ 77 ] Counsel for N.J. asked him what caused N.J. to believe that something was wrong and N.J. responded that it was R.G. asking him to stop. He explained that he apologized for making her feel uncomfortable. [ 78 ] The pair eventually fell asleep. N.J. woke up around 6:00 a.m. and it was light outside. N.J. noticed that R.G. was up and sitting on a chair and texting. N.J. apologized again for making her feel uncomfortable and she said, “That’s fine, don’t worry.” R.G. stayed for a further 15-20 minutes, during which she spent the majority of her time on her phone.

As for N.J., he laid in bed, turned around, and he tried to going back to sleep. R.G. then left taking all of her belongings. R.G left N.J.’s pyjamas and according to N.J., he did not see any blood on the sheets or on the pyjamas. [ 79 ] The next day, N.J. spoke to his roommate about what had occurred and he explained that he made R.G. feel uncomfortable. He then sent R.G. the Facebook message wherein he testified that it was his way of apologizing for making her feel uncomfortable. [ 80 ] N.J. was ultimately terminated from the restaurant and he was originally told that he was not a good fit.

He later learned that he was terminated because of the situation with R.G. On learning this, N.J. replied that he understood, and he asked when he could get his pay cheque. [ 81 ] N.J. was arrested in September of 2020, and when he was arrested, he gave a statement to the police, he agreed to take a polygraph and he agreed to provide DNA samples. [ 82 ] N.J. testified that he does not have a criminal record and that he has never sexually assaulted anyone.

He denied penetrating R.G. and stated that he did not sexually assault her. [ 83 ] N.J.’s evidence slightly changed during cross-examination wherein he testified that after R.G. asked him to stop that he responded by saying, “absolutely.” He also added that after being asked to stop, that he felt awful and that he offered to sleep on the floor and that he also offered to put towels between them as a divider. According to N.J., R.G. agreed to the divider so he got out of bed, removed a towel from a laundry pile and he placed it between them.

In contrast to this evidence, N.J. told the police that R.G. said no to the suggestion of a towel and that the two then went to sleep. M.K. [ 84 ] In July, 2019, M.K. and N.J. were roommates. At the time, and currently, they are best friends and M.K. feels they are like brothers. [ 85 ] In terms of being roommates, N.J. slept in the bedroom and M.K. slept in the living room.

According to M.K. the apartment was 500 square feet and his bed was in the living room next to a couch. [ 86 ] M.K. described himself as a light sleeper and gave an example of being awakened by computer mouse clicks and keyboard strokes coming from N.J.’s room. [ 87 ] M.K. testified that on the evening of July 28, 2019, he grabbed something for dinner and hung out playing video games. He believes he went to bed close to mid-night and nothing woke him during the night.

He believes he would have woken up if 3 people had entered the suite while he was sleeping. [ 88 ] During cross-examination, M.K. testified that N.J. had a conversation with him on the morning of July 29, 2019. According to M.K., N.J. explained what had occurred the previous night. N.J. mentioned there had been a misunderstanding and he expressed that he did not want to be rude to R.G.

N.J. conveyed that he felt terrible and stated he had apologized. [ 89 ] During cross-examination, the Crown directed M.K.’s attention to the statement he gave the police in which he described N.J. bringing women to the apartment and M.K. calling him a dog. When asked to clarify this, M.K. explained that he made the comparison because N.J. gets excited and talks a lot like a dog. [ 90 ] The Crown asked M.K. if N.J. mentioned seeing R.G. again and M.K. testified that N.J. told him that he had seen R.G. the following day at work and that they had a conversation and he apologized.

CREDIBILITY AND RELIABILITY [ 91 ] The below analysis is confined to considering if all of the accepted evidence proves beyond a reasonable doubt that N.J. sexually assaulted R.G. In doing so, and given the different versions, I turn to the evidence of N.J. and R.G. first. Thereafter, I will briefly touch on the collateral evidence of B.B., J.S. and M.K. [ 92 ] Turning to N.J.’s evidence, and after careful consideration of all of the evidence, I do not accept his evidence.

In doing so, I recognize his good character and his willingness to take a polygraph examination and provide his DNA, however, I find the internal inconsistencies in his evidence to be powerful and therefore I reject his evidence. The inconsistencies of concern are set out below. [ 93 ] First, N.J.’s Facebook apology is inconsistent with his claimed concern of having caused R.G. to feel uncomfortable. In this regard, his message contained key elements in that he said he was sorry, that he is not the type of person to take advantage , and that his act was incredibly stupid (emphasis added).

Such comments, are grossly disproportionate to his claim of having made R.G. feel uncomfortable. They are also disproportionate to his evidence that R.G. told him that it was okay. [ 94 ] Second, the Facebook message is inconsistent with N.J.’s evidence regarding what happened. Specifically, his evidence suggests that R.G. agreed to getting close and the kissing, and yet in his message he stated “… I’m not the type of person to take advantage of anyone like that.” (emphasis added).

Such a comment does not accord with his testimony that R.G. was agreeable. [ 95 ] Third, N.J.’s suggestion that he was extremely concerned at having made R.G. feel uncomfortable does not accord with his

conduct the next morning. Notably, N.J. testified he woke up and saw R.G. on her phone and he asked if she was alright and she said, “It’s fine”. Further, that he felt she was distressed, yet, and despite this observation, and his claim he was bothered over making R.G. feel uncomfortable, he rolled over and tried to go back to sleep. Additionally, and although, he did not go to sleep, he made no effort to walk with R.G. when she left the apartment.

The rolling over and not escorting R.G. to the door, is inconsistent with being concerned with having made someone feel uncomfortable. [ 96 ] Fourth, N.J. testified that all within the group were equally intoxicated, yet, in his police statement he stated that J.S. was significantly more intoxicated. [ 97 ] Fifth, in his direct evidence, N.J. testified that once R.G. asked him to stop that he stopped, apologized and R.G. indicated that it was okay and that they should go to sleep, at which point they went to sleep.

In contrast, N.J. testified during cross-examination, that after he stopped kissing R.G. that he offered to sleep on the floor and then he offered to make a barrier between them with a towel. Then, and according to N.J., R.G. accepted the offer so he got out of bed, retrieved a towel and he made a divider. These significant events were absent from his direct evidence. [ 98 ] Turning to R.G.’s evidence, I find she was a truthful, honest and credible witness who did her best to recount the events as she believed they occurred. Despite R.G.’s credibility, I find the reliability of her evidence to be concerning.

These concerns are detailed below. [ 99 ] R.G.’s perceptions and memories were formed after she had consumed alcohol, prescription drugs and marijuana. On R.G.’s evidence she was intoxicated by alcohol, however, what is absent is the collective impact that the alcohol, marijuana and prescription drugs may have had on R.G.’s ability to accurately perceive and recall. [ 100 ] Further to the above, R.G.’s evidence suggests uncertainty in her mind as to what actually occurred.

Examples include, she does not recall the latter half of the walk to N.J.’s apartment, she thinks that B.B. and J.S. also went to the apartment but she is not sure, she guesses she felt intense pain when she originally woke up to being penetrated and she guesses that N.J. was “ potentially ” kissing her (emphasis added). [ 101 ] Against the above, R.G. told the police she was not a 100% certain that she was anally penetrated, rather, she told the police her memory was hazy and that something had happened that she was not consenting to.

When confronted with her statement to the police, R.G. testified that she learned from statistics to avoid using 100% for anything, yet, in her evidence, when she was asked if she had been touched in the places where she had bruises, R.G. responded that she could not be 100% certain.

As such, it is clear that she does use 100% to evaluate her level of certainty despite her studies. [ 102 ] Additionally, when asked by the police what factors caused R.G. to believe that she had been anally penetrated, she did not respond with she recalled it happening, rather, she relied on her actions afterward, such as sobbing and texting. She also relied on the effects she experienced for two years after the event, and her lashing out at her friend D., which she believed that she would not have done this if she had not had a bad experience with a man.

From her response, it suggests R.G. draws the conclusion that she was sexually assaulted from her reactions post event and not from a reliable memory of the event occurring. [ 103 ] I find that L.M. was a credible and reliable witness. She had not been drinking when she made her observations. She was not challenged on cross-examination and the significant details of her evidence were consistent with R.G.’s evidence.

Specifically, the phone calls, the text messages, R.G.’s emotional upset and the involvement of the mutual friend D. [ 104 ] Turning to the evidence of B.B. and J.S, I conclude that the majority of their evidence was lacking in reliability. This is because they failed to provide evidence regarding their attendance at the Roxy. In my view, this is significant because of the length of time they spent there. [ 105 ] A further problem with the evidence of B.B. and J.S. is, the contradiction about how R.G. was going to get home. Each testified they asked her how she was going to get home.

I find this unlikely given they were all walking in a small group and interacting. It simply makes no sense to repeat a question already asked and answered. Additionally, one testified that R.G. said she would take a taxi home while the other testified she said she would take a bus home. The different answers within a short period of time makes no sense. Lastly, and concerning, is J.S. and B.B. could not recall what was discussed during the walk, but, and without specific reason, they claim to recall the discussion about how R.G. was going to get home. [ 106 ] As for M.K.’s evidence, I reject it in its entirety.

I am unable to conclude that he was being dishonest with the court, however, his evidence was inconsistent with other evidence and at times his responses were unbelievable. In this regard, his claim that N.J. informed him that he had seen R.G. after the event at work and that he apologized to her is inconsistent with N.J.’s evidence that he never saw R.G. after the night of the allegation. [ 107 ] I also do not accept M.K.’s evidence regarding his sleep.

On the one hand M.K. testified that he was such a light sleeper that the sound of N.J. using his keyboard would wake him and yet he did not hear N.J. and R.G. come home, he did not hear N.J. retrieve a beer from the fridge nor did he wake when R.G., who was upset, left the apartment. [ 108 ] A further concern with M.K.’s evidence was his laughable response when asked about calling N.J. a dog. It will be recalled, that when giving his statement to the police, M.K. spoke about N.J. bringing women to the apartment and in doing so he called N.J. a dog.

When asked about this by the Crown, M.K. responded by stating that he made the comparison because N.J. was excitable and he talked a lot like a dog. CONCLUSION [ 109 ] After carefully considering all of the evidence, I do not believe N.J.’s evidence in relation to what transpired in the bedroom, nor, do the portions of his evidence that I accept raise a reasonable doubt.

[ 110 ] Turning to the Crown’s case, I am satisfied that R.G. and N.J. had a happenstance encounter at the end of the evening and that R.G. ended up at N.J.’s apartment. I am also satisfied that while heading to N.J.’s apartment that there were piggyback rides thus providing a possible explanation for the bruises on R.G.’s wrist and thigh. I also conclude that R.G. was intoxicated when she got into N.J.’s bed. I am satisfied that she consented to N.J. moving close to her and to him kissing her.

Thereafter, the evidence is not of sufficient reliability for this Court to conclude beyond a strong suspicion that N.J. sexually touched R.G. Simply, the evidence lacks reliability and falls short of proving the offence beyond a reasonable doubt and I find N.J. not guilty. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia