R. v. T.M.D., 2020 BCPC 61

Citation: R. v. T.M.D. 2020 BCPC 186 Date: 20200330 File No: 35569 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.M.D. BAN ON PUBLICATION –

SECTION 486.4

(2) C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Crown: M. Hajivandi Counsel for the Defendant: W. Herdy Place of Hearing: Williams Lake , B.C. Date of Hearing: March 5, 6, 2020 Date of Judgment: March 30, 2020 INTRODUCTION [ 1 ] To afford privacy I will anonymize, as much as possible the location and the community in which the allegations before the Court occurred and only refer to the complainant by that term in this decision. I will refer to third parties described in the evidence and submissions by their initials. [ 2 ] T.M.D. is charged by Indictment, on Information #35569 with three counts under the Criminal Code alleged to have occurred in

a community near Williams Lake, British Columbia on October 15, 2018, namely:

a) Count 1- break and enter a dwelling house and commit an indictable offence, sexual assault contrary to section 348(1)(b);

b) Count 2-sexual assault, contrary to

section 271; and

c) Count 3-breach of recognizance by possessing or consuming alcohol, contrary to section 145(3). [ 3 ] At the conclusion of the trial, Defence counsel acknowledged that there was sufficient evidence to find T.M.D. guilty on Count 3 and that there may be sufficient evidence to allow the Court to find him guilty On Count 1 of the lesser included offence of mischief. EVIDENCE Crown [ 4 ] Sean Doyle is a Constable with the Royal Canadian Mounted Police (RCMP). He was one of two RCMP members who answered the Complainant’s 911 call. His evidence on the matters at issue in this case includes:

a) At approximately 0340 he received information from dispatch of a break and enter and sexual assault at a residence in a community approximately a [omitted for publication] drive from Williams Lake. The caller advised that the assailant was T.M.D., he had left the scene, and was dressed in all black clothing and with a black baseball cap;

b) He and another member drove to the community arriving at approximately 0440. When they turned onto the street of the residence they saw a male in the middle of the street approximately 20 yards from the front door of the residence. That male was dressed in black clothing with a black baseball cap and Constable Doyle recognized him as T.M.D. from past interactions;

c) When Constable Doyle’s vehicle came close to and he began to interact with T.M.D. it was obvious to him that T.M.D. was exhibiting several signs of intoxication including slurred speech, glazed eyes, unsteadiness and the strong smell of alcohol. T.M.D. was arrested for break and enter, sexual assault, and breach of his bail conditions and placed into Constable Doyle’s vehicle;

d) Constable Doyle then went into the residence where he took a statement from the Complainant. He noted that there was no signs of forced entry or a struggle inside the residence, that in one bedroom there was a bed with the sheets disturbed, and in the living room there were two small children and an older woman sleeping;

e) During the taking of the statement from the Complainant, Constable Doyle noted that she was upset but calmly related the events. She told him that the incident had occurred at 0315 and that in addition to calling 911 she had called the community’s Chief;

f) After obtaining the statement from the Complainant, Constable Doyle returned T.M.D. to the Williams Lake RCMP detachment. [ 5 ] The Complainant’s evidence on background information can be summarized as:

a) She lives in a small community of about a 1000 people; a short drive from Williams Lake. Everyone knows everyone else as relatives, friends or acquaintances;

b) Her home is on a street with other homes on both sides and across the street. It is a two story detached residence with three bedrooms upstairs and other living space downstairs;

c) She lives with her two young children and her grandmother upstairs and an uncle lives downstairs;

d) It is common for people in her community to arrive unexpectedly and just walk into another person’s home for a visit during waking hours but not in the dead of night;

e) She normally locks the three doors of her home at night but she went to bed early and the front door was left unlocked. She had not consumed any alcohol or drugs before going to bed;

f) For several years, she helped raise a young man named D. but he no longer lives with her and is not a regular visitor to her home. D. is close friends with T.M.D.;

g) She came to know T.M.D. quite well because he is the former partner of the daughter of the Complainant’s former husband and the father to his former partner’s child. [ 6 ] The Complainant’s evidence of the alleged events can be summarized as:

a) T.M.D. has never been to her home before. She did not invite him into her home. There is no reason for him to be coming into her home;

b) In the early morning hours at about 0300, she was asleep alone in a bedroom. She was lying on her right side next to a body pillow with her back to the bedroom’s door. She was dressed in her sleeping attire of a tank top, panties and sweatpants;

c) She was awakened by the sensation of cold fingers touching her lower back and buttocks area and feeling her pants being pulled a few inches away from her body in an outward and downward fashion;

d) She was startled, upset, and rolled over. The bedroom was dark but she recognized a male figure dressed all in black standing above her bed and turning away from her. She recognized the person and called out “[omitted for publication]”. T.M.D. turned back

towards her and responded with her name;

e) She considered T.M.D.’s touching of her to be sexual in nature and she found it very upsetting because she was sexually assaulted in the past;

f) She told T.M.D. in very explicit terms to get out to which he replied, “D. sent me”. He did not leave so she rushed by him and went down the hall and grabbed a baseball bat and turned on some lights;

g) She again told T.M.D. to leave but he repeated five times words to the effect that D. had sent him and that D. was outside. She explicitly told T.M.D. several more times to leave her home and after a few minutes, he did. During this interaction, her Grandmother, who had been asleep in the living room with her children, was awakened;

h) After T.M.D. left her home she watched out the window to ensure he was going but she saw no one else other than T.M.D. leave the area;

i) T.M.D.’s behaviour did not seem normal. He had no reason to come into her home. She believed he was intoxicated;

j) After T.M.D. left, she sat on the couch and then called her Chief and 911. The 911 dispatcher asked her to wake up her daughter to see if anything had happened to her; and

k) Nothing was taken from her home. [ 7 ] During the Complainant’s cross-examination, Defence counsel raised an issue that required the Complainant to receive some legal guidance concerning the provisions of

Section 5 of the Canada Evidence Act and

Section 13 of the Charter of Rights and Freedoms on the issue of self-incrimination. [ 8 ] After receiving that information, the Complainant’s evidence related to that issue can be summarized as:

a) She consumes marijuana and that fact is commonly known in the community and to her employer;

b) Prior to obtaining her present employment, which commenced in late 2017, she sold and provided marijuana to other members of the community but she stopped that activity when she started her job;

c) In the past, she did sell or provide marijuana to D. and to T.M.D.’s former partner, S.R., knowing T.M.D. likely used it. She never sold or gave marijuana directly to T.M.D. Defence [ 9 ] T.M.D.’s evidence on background matters can be summarized as:

a) He has been a user of alcohol from a young age and a user of marijuana since his teenage years;

b) He knows of the Complainant because they live in a small community and because the Complainant was a stepmother to his former partner. He has never partied with the Complainant;

c) He and his former partner have a child together. They remain close but are not a couple anymore. The Complainant hates him because of what he put his former partner through and for other reasons;

d) His friend D. knew the Complainant and they were close;

e) The Complainant is the only source of marijuana in their community;

f) He had never been to the Complainant’s home in the past;

g) He initially said the Complainant had supplied marijuana to D. and his former partner in the past but later in his testimony said he bought directly from the Complainant on two occasions. [ 10 ] T.M.D.’s evidence of the alleged events can be summarized as:

a) Earlier in the evening, he was at a friend’s place with 8 to 10 others. They were drinking and playing video games. As time went on the group diminished down to four people, him, D., and two others;

b) He was drinking at the gathering. He had 9 to 12 shots of vodka and a few beers. He was “pretty drunk but not that drunk” and he knew what he was doing. His perception is only affected if he drinks a lot but he didn’t drink a lot that night. By the time he got to the Complainant’s home he was pretty much sobered up and he remembers everything that night;

c) The four remaining people were relaxing when the discussion turned to marijuana, which they did not have. In the discussion, the Complainant’s name arose as a possible source. The others asked him to go to the Complainant’s home;

d) He tried to get D. to go but he was “laying around”. The others told him that he should go because he knew the Complainant better and he had obtained marijuana from her in the past;

e) The others gave him $30 and he went to the Complainant’s home. When asked by counsel why he went he replied, “To get marijuana I guess”;

f) He did not have a watch on and was not keeping track of the time but thought it was between midnight and 1:30am;

g) Upon arriving at the Complainant’s home he gave the following different answers to what occurred during what he said was atwo to three minute stay,

i) No one was awake so he called out. The Complainant came and he asked for marijuana. She said no and asked him to leave sohe did, ii) He could see lights on and could hear the television playing so he walked through the unlocked front door. He went to the topof the stairs and asked the Complainant for marijuana. She said no and told him to leave so he did, iii) He knocked three times and then walked in. He did not know where the Complainant came from but he saw her at the top ofthe stairs with a baseball bat. He asked for marijuana and the Complainant said no and told him to leave so he did because he doesn’t talkto her;

h) He did not go into the Complainant’s room. He had no attraction to her and was close to his former partner’s father;

i) After leaving the Complainant’s home he intended to return to his home but remembered he still had his friends’ money;

j) He reversed course and was on his way to meet up with them either where he had left them or at another location when he metup with some other people;

k) It turned out that those people had some marijuana and he may have purchased some for $15 or $20 dollars. He only had $2 onhim when arrested because he probably spent some on marijuana and some may have fallen out of his pocket when he was drinking inthe shed because it was mostly change;

l) He was heading back to meet up with his friends when the RCMP arrived on the scene just as he was passing by theComplainant’s home. He recognized the RCMP vehicle coming up quickly behind him so he stopped and threw the marijuana and “otherstuff” he had into the ditch. THE LAW [11] Counsel provided to the Court or referenced the following cases dealing with evidence and the issue of sexual assault:

a) R. v. W. (D.) (SCC), [1991] 1 S.C.R. 742;

b) R. v. Chase (SCC), [1987] 2 S.C.R. 293;

c) R. v. Ewanchuk (SCC), [1999] 1 S.C.R. 330;

d) R. v. Conway 2019 BCSC 489; and,

e) R. v. Halcro 2019 BCSC 2312 SUBMISSIONS Defence [12] Defence counsel’s submissions can be summarized as:

a) The application of W.(D.) should lead the Court to believe T.M.D.’s evidence or it should at least raise a reasonable doubt abouthis intent when entering the Complainant’s home and what occurred after he entered;

b) His repetition of the phrase that D. sent him leads credence to his evidence about being in the Complainant’s home to buymarijuana since the Complainant had supplied marijuana to D. and others in the past;

c) Although sexual assault is a general intent offence the Court must still consider whether there was any intent on the part ofT.M.D. if the Complainant’s evidence concerning how she was touched is preferred. It is possible T.M.D. pulled on her pants to get herattention which is equally likely as that action being a sexual assault;

d) Count 3 of the Information is made out by T.M.D.’s admission that he was drinking alcohol that evening and he knew it wasforbidden under the terms of his bail order;

e) In Count 1, break and enter is not the proper charge for the Court to consider based on the evidence. T.M.D. should not havebeen in the Complainant’s home but his actions were more akin to either mischief or being unlawfully in a dwelling house. Crown [13] Crown counsel’s submissions can be summarized as:

a) T.M.D.’s evidence is implausible and contradictory throughout. It is both internally and externally inconsistent on several areasin contention;

b) There were several crucial areas of T.M.D.’s evidence that were not put to the Complainant and as such should be eitherrejected outright by the Court or given little weight;

c) T.M.D.’s version of events on how: i. he gathered up money from others to buy marijuana, ii. went to the home of the Complainant who he said he didn’t like and who hated him to buy the marijuana, iii. left the Complainant’s home when asked, iv. was walking around the community when he bumped into others who provided him some marijuana, and v. which he threw away when the RCMP caught up to him is a convenient story made up by T.M.D. as he went along in his evidence;

d) The Complainant’s evidence was straightforward and thoughtful. She acknowledged weaknesses in her memory in places;

e) She acknowledged her illegal activities in providing marijuana to members of the community in the past;

f) She called community members and the RCMP soon after the events and she had no reason to fabricate her evidence;

g) T.M.D.’s entry into the Complainant’s home was illegal and so the break and enter is made out;

h) Based on the Complainant’s evidence the nature of the touching by T.M.D. was objectively sexual and without her consent although the nature of the contact was at a lower level than many other sexual assaults;

i) In the event the Court cannot conclude beyond a reasonable doubt that T.M.D.’s touching of the Complainant was a sexual assault, it is clearly an assault;

j) If the Court agrees with Defence counsel’s submissions with regard to how T.M.D. entered the Complainant’s home then he is guilty of either being unlawfully in a dwelling house or mischief. DISCUSSION A. Overarching Principles [ 14 ] The fundamental principles applicable to all criminal matters is reviewed in R. v. Rochemont , 2017 BCSC 930 : Presumption of Innocence and Reasonable Doubt [99] It is a fundamental principle of Canadian criminal law that any person charged with an offence is presumed to be innocent until proven guilty and convicted in a court of law.

First articulated in the common law, this principle is also prescribed by s. 6(1) of the Criminal Code , and is now enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms . [100] In a criminal case, the obligation is upon the Crown to prove all elements of an offence beyond a reasonable doubt, and only then can a court convict. The burden remains on the Crown throughout. Where a reasonable doubt exists respecting any of the constituent elements of the offence charged, the accused must be acquitted of that offence. [101] Reasonable doubt means a doubt that is based upon reason and common sense. Such doubt must be logically connected to the evidence or absence of evidence. It must not be based on sympathy or prejudice.

The Crown is not required to prove all elements of an offence to an absolute certainty ... as this would be an impossibly high standard. However, the reasonable doubt standard falls much closer to absolute certainty than to the standard of proof used in civil cases, i.e., the balance of probabilities. Indeed, in a criminal case if the court can only find that the accused probably committed the offence, the accused must be acquitted. [ 15 ] Since T.M.D. testified, it is necessary and important to remember the principles set out in R. v. W.(D.) . The Supreme Court of Canada directs a trial court as follows:

a) if the evidence of the accused is believed, the accused must be acquitted;

b) if the evidence of the accused is not believed, but the Court is left with a reasonable doubt by it, the accused must be acquitted; and

c) if the accused is not believed and the Court is not left with a reasonable doubt by the evidence of the accused, the Court must consider whether on the basis of all the evidence accepted that it is convinced beyond a reasonable doubt about the guilt of the accused. [ 16 ] There have been suggested modifications to the W.(D.) analysis. The British Columbia Court of Appeal has suggested that there should be a fourth part to the test which is:

d) if the Court cannot determine who to believe, then the accused is entitled to an acquittal. [ 17 ] It is not necessary to adhere slavishly to the W.(D.) formula so long as it is clear that the Court has considered the whole of the evidence in reaching any conclusion about whether or not the accused is guilty. Applying these tests does not shift the burden onto the accused. It remains on the Crown to prove each element of each of the three Counts beyond a reasonable doubt. B. Credibility and Reliability

[18] This case places front and centre the need to assess the credibility and reliability of the testimony of the witnesses. Thetruthfulness or veracity of a witness is determined by assessing their credibility. The reliability of a witness determined by examiningtheir ability to testify about the events in question based on accurate observation and clear recall. An untruthful person is not capable ofproviding reliable evidence. A person who is attempting to tell the truth may still give unreliable evidence if his ability to observe andremember events is affected or impacted in some way. [19] In R. v.

Swain, 2019 BCSC 1300 the Court detailed how a judge should approach the issue of conflicting evidence and credibilityin such cases: [48] Accepting all or part of the testimony of any witness involves an assessment of credibility (truthfulness/honesty) and reliability(accuracy) of both the witness and the evidence.

That in turn involves consideration of many different factors including: • internal consistency of the witness's account of events; • consistency with other evidence afforded by witnesses, documents or physical evidence; • whether the evidence is reliably corroborated or contradicted by other evidence (although in sexual assault cases nocorroboration is required for a conviction: s. 274 of the Code); • the witness's ability/opportunity to observe or experience the events in question and to reliably recall/communicate same; • the demeanour of the witness and whether the questions are answered in a frank and forthright fashion without evasion,speculation or exaggeration (making all appropriate allowances for the witness's experience and circumstances); • whether the witness has any interest in the trial outcome or has any motive to fabricate; • whether (based on properly admissible evidence) the witness has "poor character for truthfulness"; and • the inherent plausibility of the evidence in the context of the case as a whole. [20] Not all of these factors are applicable for every witness or in every trial. [21] In trying to establish the truth regarding the evidence the direction from the Court of Appeal in R. v.

Pressley (1948), (BC CA), 94 C.C.C. 29 (B.C.C.A.) still applies: The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by thefacts and circumstances in the conditions of the particular case. C. Sexual Assault [22] In order to convict T.M.D. of sexual assault the Crown must prove beyond a reasonable doubt the factors described in R. v. TayoTompouba 2019 BCSC 1529 where the Court provided a useful

summary of the broader legal principles applicable to sexual assault: The Law on Sexual Assault Actus Reus [48] To establish the actus reus of the offence, three elements must be established beyond a reasonable doubt: 1. Touching; 2. The sexual nature of the touching; and 3. The absence of consent. [49] The first two elements are objective while “(t)he absence of consent…is subjective and determined by reference to theComplainant’s subjective internal state of mind towards the touching, at the time it occurred”: Ewanchuk at paras. 25-26.

Mens Rea [50] Regarding the mens rea of the offence, the two additional elements that must be established beyond a reasonable doubt are: 4. An intention to touch; and 5. Knowledge, recklessness or wilful blindness about the lack of consent. The Law on Consent [52] For the purposes of s. 271 and certain other sections of the Criminal Code, R.S.C., 1985, c. C-46 [Code] consent is defined in s.273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. D.

Analysis of the Evidence [23] Given the analysis of the evidence set out in W.(D.) it is appropriate to consider the defence evidence first since, if it is believedor if it raises a reasonable doubt, T.M.D. is entitled to an acquittal.

[24] One of the initial challenges in analyzing T.M.D.’s evidence is that much of what he told the Court about the events thatcontradicted the Complainant’s evidence was not put to the Complainant in cross-examination. In those areas, I am hindered in my taskto decide whether I accept, reject or give lesser weight to that evidence. [25] In applying the Swain factors to T.M.D.’s evidence there are many areas that clearly indicate grave concern with regard to hiscredibility or reliability. [26] There were many instances where his evidence was internally inconsistent or inconsistent with other evidence or witnesses. Themost obvious examples are:

a) The explanation on how he had spent the evening with friends, was cajoled into going to the Complainant’s home to buymarijuana, his interactions with the Complainant, his wandering about the community after leaving the Complainant’s home but endingup almost exactly in front of the Complainant’s home an hour or more later when he was found by the RCMP;

b) His level of intoxication. Despite the amount of alcohol he acknowledged he consumed that evening his assertion that he waspractically sober when he entered the Complainant’s home does not accord with the evidence of the Complainant and Constable Doyle,both of whom noted T.M.D.’s intoxication;

c) The three different versions he gave on how he gained access to the Complainant’s home; and

d) His explanation of why he only had $2 on him when arrested when he had collected $30 earlier in the evening to buy marijuanaand was on his way back to return the money after his encounter with the Complainant. [27] T.M.D.’s intoxication contributed to his inability and capacity to observe and experience the events of that evening.

It was alsoclear at many points his evidence was vague and he was, despite his assertion to the contrary, not able to clearly recall the events bypointing out that they had occurred a long time ago or by including words like “I guess” as part of his answers. [28] T.M.D. has a very personal interest in the outcome of this trial. He is facing very serious allegations, one of which often attractssignificant opprobrium; particularly in a small community.

There are many reasons why he might fabricate his evidence to avoid afinding of guilt. [29] In the final analysis, when considered in the context of the evidence as a whole much of T.M.D.’s evidence was simplyimplausible. [30] In one area I do accept T.M.D.’s evidence in its entirety. He acknowledged that he was on bail at the time and that one of the bailconditions required him not to possess or consume alcohol. He also admitted that he had been drinking that evening.

Those admissionsprove Count 3 beyond a reasonable doubt. [31] In another area, T.M.D.’s evidence was largely not believable but the possibility remains that it might have occurred, althoughnot in the fashion described by him. As outlandish as it sounds, there is a possibility that T.M.D. spent the evening with D. and othersand was convinced to go to the Complainant’s home to buy marijuana.

That would explain his repeated statements to the Complainantthat D. had sent him. [32] The Complainant was not confronted on many of the varying renditions in T.M.D.’s evidence on how he ended up in her homebut there remains the possibility that:

a) He heard the television playing, given that three people were asleep in the living room;

b) He simply walked through the unlocked door uninvited, a social convention acknowledged by the Complainant as common inthat community during wakeful hours;

c) He was unaware of the hour because he had no watch and wasn’t paying attention to the time; and

d) He was there to buy marijuana. [33] Furthermore, his intoxication and his statements to the Complainant about D. is sufficient evidence to the to the contrary toovercome the statutory presumption of a break and enter (see R. v. Campbell (1974) (ON CA), 17 C.C.C. (2d) 320(Ont.C.A.) and R. v.

Johnnie (1975) (BC CA), 23 C.C.C. (2d) 68 (B.C.C.A.)). [34] In light of those possibilities and his level of intoxication, I cannot conclude beyond a reasonable doubt that T.M.D. had theintention to commit a break and enter, and commit an indictable offence as alleged in Count 1. [35] Nevertheless, he did enter the Complainant’s home at night and without her permission. Both counsel submitted that he might beguilty of either being unlawfully in a dwelling house, contrary to

Section 349 or mischief contrary to Section 430(1) (d). [36] Both of those offences are lesser-included offences to break and enter (see R. v. Liang (2008) 2009 ABCA 2 , 240C.C.C. (3d) 197 (Alta. C.A.) and R. v. E. (S.) (1993) (NWT CA), 80 C.C.C. (3d) 502 (N.W.T.C.A.), ContraR. v. Beyo (2000) (ON CA), 144 C.C.C. (3d) 15 (Ont.C.A.)). [37] However, the offence of being unlawfully in a dwelling house requires the same level of intent as a break and enter and that wasunproven here due to T.M.D.’s intoxication.

That leaves the lesser-included offence of mischief that was proven beyond a reasonabledoubt. [38] A decision on Count 2 requires a detailed analysis of the evidence of both T.M.D. and the Complainant on what occurred insideher home.

[ 39 ] T.M.D.’s evidence on that point offered up three different versions but with the final assertion that he did not enter the Complainant’s bedroom or touch her in any fashion. [ 40 ] Given my earlier findings about T.M.D.’s level of intoxication and how he may have ended up in the Complainant’s home his assertions necessitate a detailed examination of the Crown’s case. [ 41 ] The Complainant’s evidence completely contradicts T.M.D.’s version of their encounter making it necessary to apply the Swain factors to her version of events. [ 42 ] The Complainant’s evidence was given in a frank, clear, precise and candid manner.

She was careful and thoughtful in her responses, sometimes taking a moment to recall events in her mind so she could be accurate and complete. It was internally consistent and not diminished in cross examination. She was not vague or evasive and she did not exaggerate in her responses. [ 43 ] She acknowledged some facts that might cast her in an unfavourable light. She agreed that while he was in her home T.M.D. repeated references to D. several times and that she had been close to D.

She conceded that her responses on certain points when dealing with the RCMP or in answering questions in a previous proceeding slightly differed from her answers in court but provided a valid explanation for those variations. [ 44 ] The Complainant has an interest in the trial outcome from the perspective of wanting to be heard and believed. However, in order for me to conclude that she fabricated her evidence on being touched by T.M.D. and then their subsequent interactions in her home I would have to conclude the following:

a) All their interactions occurred in the stairwell area of her home;

b) T.M.D. left immediately after being told to do so;

c) She constructed the false story about being touched and then called her Chief and 911 to make it public;

d) She repeated that story to Cst. Doyle and acted agitated but in control; and

e) She repeated the same falsehoods on two occasions under oath before the Court. [ 45 ] There are also the considerations of why the Complainant would go to all the trouble to make up such a story if all that occurred was an aborted attempt by T.M.D. to buy marijuana from her.

It is not as if she was wanting to deflect her involvement in marijuana use or distribution given she acknowledged that everyone knew of her use and that she did provide marijuana to others in the not too distant past. [ 46 ] There is also the reality that in many communities any allegation of sexual misconduct brings as much social notoriety to the Complainant as it does to the accused. [ 47 ] In the end I cannot rely on the veracity or reliability of T.M.D.’s version of what occurred in the Complainant’s home.

I do accept her evidence that she was touched by T.M.D. in the manner she described and their subsequent interaction. [ 48 ] The fact that T.M.D. did touch the Complainant as described does not end the analysis. Defence counsel submits that if I did find T.M.D. touched the Complainant there remains the requirement to determine the nature of the touching and what offence, if any it proves. That requires a review of the test set out in several cases and summarized in Tayo Tompouba . [ 49 ] In this case I conclude the following:

a) T.M.D. touched the Complainant in the fashion and on the part of her body described by her;

b) T.M.D. had the intention to touch the Complainant;

c) T.M.D. was reckless or wilfully blind about the Complainant’s consent; and

d) The Complainant did not consent to the touching. [ 50 ] The crucial issue to decide is, from an objective perspective, was the touching of a sexual nature. [ 51 ] I have already concluded that T.M.D. did not enter the Complainant’s home with the predetermined intent to assault her. I have also concluded that he was likely quite intoxicated at the time. However, intoxication, unless to the point of blackout, does not vitiate the general intent requirements for such an offence. [ 52 ] He came into the Complainant’s bedroom to find her sleeping on her side, partially clad with her back towards him.

He opportunistically grasped the waistband of her sleeping pants and pulled them out and down a few inches. [ 53 ] That is not, as asserted by defence counsel, the actions of someone trying to wake a person to buy marijuana. It is, by an objective measure, an assault of a sexual nature. T.M.D. found someone in a vulnerable position and intended, even in his intoxicated state to initiate sexual contact without consent. Count 2 has been proven beyond a reasonable doubt.

DECISION [ 54 ] T.M.D., on Information #35569 I find you guilty of the following offences under the Criminal Code that occurred on October 15, 2018:

a) Count 3 - Breach of recognizance by possessing or consuming alcohol contrary to Section 145(3);

b) Count 1 – Not guilty of break and enter a dwelling house and commit an indictable offence, sexual assault contrary to Section 348(1)(

b) but guilty of the lesser-included offence of mischief contrary to Section 430 (1)(d);

c) Count 2 - Sexual assault, contrary to

section 271. _______________________________ The Honourable Judge M.J. Brecknell Province of British Columbia