R. v. P.J.C. Date:, 2017 BCPC 46

Citation: R. v. P.J.C. Date: 20170216 2017 BCPC 46 File No: 36520-1 Registry: (omitted) IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION Pursuant to

Section 486.4(1) of the Criminal Code REGINA v. P.J.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: Neal Bennet Counsel for the Defendant: James Wright Place of Hearing: [Deleted for publishing] , B.C. Dates of Hearing: January 5, June 6 and 7, Sept. 13, Oct. 27 and December 13, 2016 Date of Judgment: February 16, 2017

[ 1 ] P.J.C. is charged that on or about February 21, 2015 at or near [deleted for publishing], British Columbia, he did sexually assault C.A.D., contrary to

section 271 of the Criminal Code . THE EVIDENCE [ 2 ] At the trial of this matter the Crown called five witnesses: C.A.D., the complainant; G.D., the complainant’s father; Candice Baker, a nurse examiner; and Sgt. Mumford and Cst. Moore, the investigating police officers. The Evidence the Complainant [ 3 ] The complainant was 20 years of age at the time of the alleged sexual assault. She is of aboriginal heritage and originates from the [deleted for publication] area of Vancouver Island. She is a cousin of the accused.

At the time of the alleged offence, the complainant lived in [deleted for publication] with her two young children. [ 4 ] On February 20, 2015 the complainant travelled from Nanaimo to the [deleted for publishing] Reserve at [deleted for publication] to visit relatives. Initially, she went to the residence of her ex-mother-in-law. From there she sent a message to A.C., who is her aunt and the accused’s mother. The complainant owed her aunt some money for babysitting her children at an earlier time.

Her aunt came over and the complainant paid her. [ 5 ] The complainant and her aunt then went to her aunt’s residence also located on the [deleted for publishing] Reserve (the “residence”). They decided they would use the babysitting money to purchase some liquor to drink. They contacted another aunt of the complainant named P.

The complainant’s aunt P. drove the complainant to [deleted for publishing] where she purchased a six pack of Palm Bay brand coolers and two 15 packs of Budweiser beer. [ 6 ] After they returned to the residence with the liquor, her aunt P. went back to [deleted for publishing] to buy some more beer for herself. [ 7 ] At this time, the accused, who is approximately the same age as the complainant, lived at the residence with his mother A.C. and his father L.C. [ 8 ] The complainant testified that she and the others at the residence consumed alcoholic beverages.

Present were the complainant, her aunts, A.C. and P., her uncle L.C. and the accused. It is not clear on the evidence at what time the drinking started or exactly how much the complainant and the others drank. It seems clear, however, that there was a focus on drinking and that everybody drank a lot. They played drinking games. The complainant testified that she drank quite a bit and “got drunk pretty quickly.” [ 9 ] The complainant testified that at some time during the evening, she and the others walked from the residence to the houses of other relatives on the reserve in search of cigarettes.

After finding cigarettes, the group returned to the residence. [ 10 ] At some time after returning, the complainant and the accused sat together outside in front of the residence and talked. By this time, it was the early morning of February 21, 2015. [ 11 ] The complainant testified that she does not recall what she and the accused talked about except that they spoke about the fact that their respective parents drank a lot and it seemed that drinking was more important to their parents than they were. [ 12 ] The accused and the complainant ended up in the accused’s bedroom.

Initially, the complainant testified that she did not know how she got into the bedroom. Then, at the request of Crown counsel, she reviewed a portion of a transcript of the statement she gave to the police. She then testified that she remembered telling the accused that she was tired and wanted to go and lay down. She testified that the accused told her she could sleep in his bedroom and that she went and laid down on his bed. [ 13 ] The complainant testified that the accused came into the bedroom right behind her and started to pull her pants off.

She said that she asked him not to do that and told him that she didn’t want to do anything. She testified further that he was on top of her after he pulled down her pants. [ 14 ] Crown counsel asked the complainant if the accused said anything to her at that time. She replied “not that I remember”. Crown counsel then had her look again at the transcript of her statement to refresh her memory. She then testified “after I told him I did not want to do anything he said it is fine, I am not going to hurt you.

It is between you and me”. [ 15 ] The complainant testified that she was on her back on the bed, that the accused was on top of her and put his penis inside her anus. She said that she told him that it hurt and that she did not want to do that with him. She said that she asked him to stop and tried to get him off her. She testified further that at one point she tried to call her aunts to come and stop him but he covered her mouth.

The evidence is that the complainant’s aunts, A.C. and P., were in the living room which is adjacent to the accused’s bedroom. [ 16 ] The complainant testified that it felt like the assault lasted forever, like he was not going to stop hurting her. She said that it felt like the accused ejaculated inside her. She testified that after the accused finished and got off her, she got dressed and left the bedroom.

She said that her aunt A.C. asked her what was wrong but that she did not answer and walked out of the house. [ 17 ] The complainant testified that she walked for 15 to 20 minutes in the dark to her grandmother’s residence on the [deleted for publication] Reserve where her father, stepmother, brother and other relatives were living. She said that she first went to her brother’s room because his light was on. She said that she told her brother what happened and that he got upset and got their father, G.D. [ 18 ] The complainant said that she was crying and told her father what had happened.

She said that her stepmother phoned the police right away.

[ 19 ] The complainant testified that she was just trying to process everything. She said that she was hurt that it happened because before it happened she was able to talk with her cousin, the accused, about things. [ 20 ] The complainant said that soon after her stepmother called the police, Sgt. Mumford arrived. She testified that she told him what had happened and that he later took her to the [deleted for publication] Hospital for an examination. [ 21 ] The complainant was cross-examined.

Defence counsel suggested to her that when she and the accused were outside the house, she put her head on the accused’s shoulder and tried to kiss him. She said that she might have put her head on his shoulder but did not try to kiss him. [ 22 ] Defence counsel suggested further that at the time she was feeling affectionate towards the accused. She replied “yes, we talked about our parents drinking”. [ 23 ] Defence counsel put his client’s version of what occurred in the bedroom to the complainant. She strongly denied that things happened that way.

The Evidence of G.D., the Complainant’s Father [ 24 ] G.D. is the father of the complainant. He testified that he is 42 years of age, is First Nations and the lives on the [deleted for publication] Reserve. [ 25 ] He testified that in the early morning of February 21, 2015 his son called for him. He said that the complainant had come into the house, and was crying and trying to explain what had happened to her. He said that at first she was talking through her crying but then calmed down. She told him that she was at her aunt A.C.’s residence and that the accused had sexually assaulted her there.

He testified that he and his wife decided to call 911. He said that a police officer arrived within 10 to 15 minutes of being called. [ 26 ] When asked about the complainant’s sobriety, G.D. testified that while it was obvious that she had been drinking, she was not slurring her words and was “not too out of it”. The Evidence of Sgt. Mumford [ 27 ] Sgt. Mumford testified that he has been a police officer with the RCMP for over 19 years. He said that he had been stationed in [deleted for publication] for almost 2 years and was in charge of the detachment there. [ 28 ] Sgt.

Mumford testified that in the early morning of February 21, 2015 he was on call and asleep at his residence. He said that at 5:09 a.m. he was called by the dispatcher and told that a sexual assault had just been reported. [ 29 ] He drove to the residence located at [deleted for publication] Reserve and arrived at about 6:00 a.m. [ 30 ] Sgt. Mumford testified that he met with the complainant in the living room and took a statement from her. He said that she was visibly upset and cried off and on while giving her statement. [ 31 ] Sgt.

Mumford said that he could smell the odour of liquor coming from the complainant and that her eyes were glassy and watery. He said that her balance seemed to be normal but that she walked slowly and cautiously as if she was experiencing some discomfort. [ 32 ] The Sgt. testified that the complainant was mistaken as to what time it was when he was speaking to her. He said that she believed it was between 2 and 3 a.m. when in fact it was approximately 6:30 a.m. [ 33 ] After speaking with the complainant, Sgt. Mumford called and asked for another officer, Cst. Moore, to come and assist him locate the accused.

He said he told the complainant that he would go and try to find the accused and would then come back to take her to the hospital. [ 34 ] Sgt. Mumford testified that he and Cst. Moore attended the residence of A.C. located at [deleted for publishing] Reserve. He said they found that the rear door was open a few inches and they could see a man lying on a sofa. The man did not respond to their banging and shouting. Concerned about his well-being, they entered the residence and went to the sofa. Eventually, they were able to wake him up. They asked if he was P.J.C. He said yes.

He was groggy but cooperative. [ 35 ] Sgt. Mumford believed that the accused was intoxicated. He noted that his eyes were glassy, that he smelled of liquor and that it appeared that he had urinated in his jeans. [ 36 ] Sgt. Mumford arrested the accused for sexual assault. Cst. Moore then took control of the accused. Sgt. Mumford returned to the complainant’s residence and drove her to the [deleted for publication] General Hospital where she would be examined by a nurse. [ 37 ] After taking the complainant to the hospital, Sgt. Mumford attended the police detachment where Cst. Moore had the accused in custody.

He said that he observed Cst. Moore swab the accused’s penis for evidence. He testified that he does not recall seeing any blood on or near the accused’s penis. He said that if he had made such an observation, he would have asked the accused questions about it. [ 38 ] At 2:47 p.m., Sgt. Mumford returned to the hospital and then drove the complainant home. He said that she was sober but still appeared to walk slowly and carefully. He believed she was experiencing discomfort. In cross-examination, he agreed that he has no medical training. The Evidence of Cst. Moore

[ 39 ] Cst. Moore testified that he has been a member of the RCMP for over nine years and is stationed in [deleted for publication]. He said that on February 21, 2015 at 6:35 a.m., he was just getting off night shift when he received a call from the dispatcher to say that Sgt. Mumford required his assistance. [ 40 ] Cst. Moore met Sgt. Mumford at the [deleted for publication] Reserve. Together, they found the accused sleeping on a sofa in his mother’s residence. Constable Moore noted that the accused showed signs of intoxication.

He detected the strong odour of liquor coming from his breath and saw that his eyes were bloodshot and watery. [ 41 ] Cst. Moore testified that after the accused was arrested, he made spontaneous statements. He said the accused said “I’ll be honest, C.A.D. and I were kissing last night. She wanted me to walk her home. I didn’t and passed out on the couch”. He said that the accused also stated “this is just a big mistake”. [ 42 ] Cst Moore transported the accused to the [deleted for publication] RCMP detachment. He seized his clothes. He did not notice any blood on the accused’s underwear or pants. [ 43 ] Cst.

Moore took swabs from the accused’s penis. He did not observe any blood on or around his penis. The Evidence of Candice Baker, Nurse Examiner [ 44 ] Candice Baker testified that she is 27 years of age, has a Bachelor of Science degree in nursing and has been a registered nurse for over six years. She said that she is employed as a nurse at the [deleted for publication] General Hospital and is a trained sexual assault nurse examiner. [ 45 ] Ms. Baker testified that on February 21, 2015 she met the complainant at the hospital at about 9 a.m.

She said that she began speaking with the complainant to obtain her consent to undergo an examination but the complainant was very sleepy. As a result, Ms. Baker let her sleep until approximately 12:30 p.m. [ 46 ] After the complainant woke up, Ms. Baker obtained her consent to undergo a sexual assault examination. Ms. Baker took a history from the complainant and then conducted a physical examination of her. When using a Woods lamp Ms. Baker detected a small bruise underneath the complainant’s left breast. She made no other visual findings of injury. In the course of conducting her examination, Ms.

Baker observed menstrual blood both inside and outside the complainant’s vagina. [ 47 ] As part of the examination, Ms. Baker took vaginal and rectal swabs from the complainant. She did not detect any injuries to the complainant’s genital or anal areas. She did, however, note that the complainant indicated that there was tenderness around her anus and tenderness to her rectum upon insertion of the rectal swab. [ 48 ] After collecting evidence from the complainant, Ms. Baker labelled, signed, packaged and sealed it and placed it in the forensic freezer at the hospital. She then provided the evidence to Sgt.

Mumford the following day. The Forensic Evidence [ 49 ] The DNA obtained from sperm on the vaginal and rectal swabs taken from the complainant matches the DNA obtained by swabbing the accused’s penis. Admission of Fact [ 50 ] Crown counsel and defence counsel agreed on an admission of fact. That is that the accused was diagnosed by neuro- psychologist Dr. Dianne Russell as having Fetal Alcohol Spectrum Disorder, Attention Deficit Hyperactivity Disorder and a mild intellectual disability.

The Evidence of the Accused [ 51 ] The accused, P.J.C., testified that he is 20 years of age, is a cousin of the complainant, and that at the time of the alleged offence he was living with his parents A.C. and L.C. at their residence on the [deleted for publication] Reserve. [ 52 ] The accused testified that the complainant came to the residence at about 2:30 p.m. or 3 p.m. on February 20, 2015. He said that liquor was purchased using money which the complainant owed to his mother for babysitting.

He said that they obtained a couple of 24 packs of Budweiser beer and a bottle of Polar Ice vodka. [ 53 ] He testified that he, his parents and the complainant drank quite a bit. He said that they played drinking games. He said that his aunt P. came over later and that by that time she arrived they were all pretty drunk. [ 54 ] The accused said that at one point they all left the residence to look for cigarettes. He said the complainant followed him and tried holding his hand and kissing him. When asked what his reaction was to that, he said he was shocked.

He testified that at one point he and the complainant were trying to find his dad. He said they found his dad drinking with a relative known as S. at S’s residence. [ 55 ] The accused, the complainant, his mother and his aunt P. returned to the residence. [ 56 ] The accused testified that he was sitting outside the residence drinking a beer when the complainant came out and joined him. He said that he and the complainant shared the beer and talked about how their parents drank too much.

He said that the complainant kept moving closer to him. [ 57 ] The accused testified that he went into the residence and obtained two beer from his mother. He said that he offered the complainant a beer and that she came into his bedroom. When asked if he invited the complainant into his room, he said yes but that he did not offer for her to sleep there.

[ 58 ] The accused said that when he and the complainant were in his room, his mother and aunt P. were on a couch about 8 feet away in the living room. [ 59 ] The accused testified that he and the complainant were standing up in his bedroom and that she started kissing him. He said they kept kissing and she put her hand on his penis. He said they started taking each other’s clothes off. The accused testified further that the complainant told him that she wanted his dick.

He said that he didn’t say anything in response and that it led to sex. [ 60 ] The accused testified that the complainant went on her knees on the bed, that he put his penis in her vagina and that they had sexual intercourse doggy style. He said that he could not remember if his penis went into her anus.

When asked in direct examination whether the complainant said anything when they were having sex, he said she said nothing other than that she wanted his dick. [ 61 ] The accused testified that after he and the complainant had intercourse doggy style he laid on his back, she got on top of him and that they had further vaginal intercourse. He said that she then got up and performed oral sex on him. He said that after that she got on top of him for a second time and he ejaculated inside her. He said they then both got dressed. [ 62 ] The accused testified that the complainant asked if he could walk her home.

He said he did not want to walk her home because he thought that she had a boyfriend at the time. He testified that after the complainant left, he drank another beer and then passed out on the couch. He said he woke up when he was being arrested by the police. [ 63 ] During direct examination, the accused said that he never threatened the complainant and that he was not violent towards her. He said she never screamed and did not indicate in any way that she wanted him to stop. [ 64 ] The accused was cross-examined by Crown counsel. He confirmed that the complainant is his cousin.

He said that he has known her his whole life and that he was never in a romantic relationship with her. [ 65 ] The accused could not say how much he had to drink, but said that he drank a lot. He agreed that drinking alcohol affected his memory but said that he remembers most things. Crown counsel put it to the accused that in his statement to Sgt. Mumford the accused said that he did not remember much. The accused agreed and said that, at the time, he did not remember a lot. He said it took him a while.

He then said that he had had a whole year to think about what happened and that he recalled everything like it happened yesterday. He said that he now has a better recollection of what occurred than he did the day after it happened. [ 66 ] The accused repeated that the complainant put her head on his shoulder and tried to kiss him. He said he moved away. [ 67 ] The accused was asked about his evidence that he and the complainant took each other’s clothes off. Crown counsel put to the accused a transcript of the statement he gave to Cst. Moore. The accused agreed that Cst.

Moore asked him who removed whose clothes and that he replied “I remember her zipping down her sweater and stuff, I had a black sweater on and I removed mine”. [ 68 ] The accused agreed that he did not change his clothes or wash his penis before passing out and then being arrested. [ 69 ] Crown counsel asked the accused whether he noticed any blood when the complainant took her pants off. He answered “I don’t know. I can’t remember. I did not see anything”. Crown counsel then put to the accused the statement he gave to Sgt.

Mumford in which he said that she took her pants off and there was blood all over her vagina. The accused agreed that the statement he gave to Sgt. Mumford was correct and said that he now remembers seeing blood. [ 70 ] The accused was asked if he could explain how it is that the police officers did not see any blood on his clothes or penis given that he said that he had vaginal intercourse with the complainant and did not wash or change his clothes before he was arrested. The accused said that this could be explained by the fact that the complainant gave him oral sex.

Earlier, the accused had testified that he had further vaginal intercourse with the complainant after the oral sex. [ 71 ] Crown counsel asked the accused whether the complainant said anything else to him apart from “I want your dick”. The accused answered that she said that a few times but didn’t say anything else and neither did he. Crown counsel then put to the accused the part of the transcript of the statement he gave to Sgt. Mumford as follows: Mumford: but at what point did she tell you, like, no?

P.J.C.: When, when I think it’s, when we just did that anal thing, that’s about it, when I heard… Mumford: Okay P.J.C.: “not there” Mumford: So what happened? P.J.C.: And then I stopped it from there and we started doing it. [ 72 ] The accused then testified that he doesn’t know if he penetrated the complainant’s anus. He said that he may have but that he just doesn’t know. [ 73 ] Crown counsel put it to the accused that unlike what he said in his direct testimony, he did not tell the police that he and the complainant had intercourse doggy style or that she performed oral sex on him.

The accused replied that it took him a whole year to think about what happened – to accurately remember what happened. [ 74 ] When the prosecutor put it to the accused that the complainant asked him several times to stop and he ignored her, he said “it never happened”. Similarly, when the prosecutor put it to the accused that the complainant tried to call for help and that he covered her mouth with his hand, he said “it never happened”.

[75] Crown counsel put it to the accused that he had anal intercourse with the complainant. The accused stated “I can’t answer that”. THE LAW [76] The leading decision dealing with the issue of what is a sexual assault is that of the Supreme Court of Canada in R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330. I will quote portions of the decision: 23. A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed theactus reus and that he had the necessary mens rea. The actus reus of sexual assault is unwanted sexual touching.

The mens rea is theintention to touch, knowing of, being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person beingtouched. 25. The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. 26. The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred. 29. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessedby the trial judge, or jury, in light of all of the evidence.

It is open to the accused to claim that the complainant’s words and actions,before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want to the sexual touching totake place. If, however, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged itsobligation to prove the absence of consent. 30. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence includingany ambiguous conduct.

The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct isconsistent with their claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perceptiononly arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. 34. The finding that the complainant did not want or consent to the sexual touching cannot co-exist with the finding that reasonabledoubt exists on the question of consent.

The trial judge’s acceptance of the complainant’s testimony regarding her own state of mind wasthe end of the matter on this point. 41. Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch thecomplainant in order to satisfy the basic mens rea requirement. 42. However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law raises adefence of mistake of fact which removes culpability for those who honestly but mistakenly believe that they had consent to touch thecomplainant.

To do otherwise would result in the injustice of convicting individuals who are morally innocent.

As such, the mens rea ofsexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on thepart of the person touched. [77] As in all criminal cases, the accused in this case is presumed innocent unless and until the Crown proves him guilty beyond areasonable doubt. [78] The accused has not raised the defence of honest but mistaken belief in consent. [79] There is no question that the activity which occurred was of a sexual nature. [80] On the complainant’s evidence, she clearly did not consent to the sexual activity which she described and it would have beenclear to the accused that she did not consent. [81] On the accused’s evidence, the complainant indicated an interest and willingness to engage in sexual activity with him and didnot, through her words or actions, indicate that she did not consent. [82] If I believe the evidence of the complainant and am satisfied beyond a reasonable doubt that she did not consent to engaging insexual activity with the accused, I must find the accused guilty as charged. [83] In this case, as in so many cases of this nature, one of the main issues is credibility.

I am faced with conflicting versions ofevents from the complainant and from the accused. As a result, I must instruct myself along the lines suggested by Mr. Justice Cory inR. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [84] At paragraph 28, Cory J. states that a trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [85] In R. v. H.(C.W.) (1991) (BC CA), 68 C.C.C. (3d) 146, Mr. Justice Wood, writing for the majority of theBritish Columbia Court of Appeal, recommended that there be a fourth instruction added to those set out in R. v. W.D.

At paragraph 155,he states as follows:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit.” ASSESSMENT OF CREDIBILIY The Complainant [ 86 ] Generally, I found the complainant to be a good witness. She came across as being very honest. She was forthright and straightforward in the manner in which she gave her evidence.

She was able to give a clear and detailed account of what occurred. [ 87 ] I found that the complainant was not prone to exaggeration and that she readily admitted what she did not know or could not remember. For example, she acknowledged that she couldn’t remember exactly how much she had to drink. She also admitted that she did not have a clear memory of going from outside the residence into the accused’s bedroom. In cross-examination, she admitted that she was mistaken about what time it was when she gave her statement to Sgt.

Mumford. [ 88 ] The complainant also readily admitted some things which could be considered to run contrary to her assertion that she did not consent to engage in sexual activity with the accused. That is that she may have put her head on the accused’s shoulder and that she felt some affection towards him. [ 89 ] Of real significance is the fact that the complainant’s evidence was very consistent. She gave no contradictory evidence during her direct examination or cross examination.

In addition, it was not shown that she said anything in her testimony in court which differed from her statement to the police. [ 90 ] The fact that the complainant immediately left the residence and walked home alone in the dark is more consistent with her having been sexually assaulted than having engaged in consensual sexual activity. [ 91 ] I find that the complainant’s account of what occurred is supported by some of the other evidence. Her account is supported by her father’s evidence that she was crying and upset when she arrived home. It is supported by the evidence of Sgt.

Mumford that she cried off and on while giving her statement and that she walked slowly and cautiously as if she was experiencing discomfort. It is supported by the evidence of Candice Baker that, upon examination, she indicated that she was tender around and inside her anus. It is supported by the evidence that the accused’s DNA was found on the rectal swab taken from the complainant. The complainant’s evidence that she experienced anal intercourse is supported by the fact that neither Sgt. Mumford nor Cst.

Moore observed any blood on the accused’s penis or on his underwear. [ 92 ] The accused argued that the complainant was not a credible witness and that she should not be believed. He pointed to the fact that the complainant testified that the only intercourse which occurred was anal intercourse and argued that the forensic evidence proves her wrong. [ 93 ] While the fact that the accused’s DNA was found on both the vaginal and rectal swabs taken from the complainant support a finding that both vaginal and anal intercourse occurred, it is not conclusive proof of either.

Neither the Crown nor the defence called any expert evidence on this question. [ 94 ] It is quite possible that the complainant is mistaken in her belief that only anal intercourse occurred. Even if so, that does not mean that I cannot accept her evidence that she did not consent to engage in sexual activity with the accused. If she did not consent, it matters not whether there was anal intercourse, vaginal intercourse or both.

I note that the accused testified that he had vaginal intercourse with the complainant and does not know whether he had anal intercourse with her. [ 95 ] The accused argued that the complainant’s evidence that she was laying on her back when the accused had anal intercourse with her does not accord with common sense. I cannot say. I heard no expert evidence as what sexual positions are possible. [ 96 ] The accused submitted that the complainant’s testimony that she called out for help should be rejected because her two aunts were in the next room. Neither aunt was called to testify.

The evidence is that they were both drinking. The complainant testified that the accused covered her mouth. When asked why there was no blood to be seen on his penis when he said that he had vaginal intercourse with the complainant, the accused explained that it may be because she performed oral sex on him. I note, however, that earlier the accused testified that he had vaginal intercourse with the complainant again after the oral sex. The Accused [ 97 ] I did not find the accused to be a reliable or credible witness. [ 98 ] Initially, the accused testified that he had a very good memory of what occurred.

He said that his memory at the time of trial was better than it was just after the events occurred because he had had time to think about things. This does not seem very plausible. [ 99 ] It was shown through cross examination that the accused’s memory was not so clear. Of particular note is that he testified that he saw no blood on the complainant after her pants were down.

He then agreed in cross examination that he did see blood on the complainant’s vagina and that he said so in his statement to the police. [ 100 ] The accused’s testimony as to the sexual activity which occurred was not consistent with what he told the police. Of significance is that he said nothing in either of the two statements he gave to the police about having intercourse doggy style or of having oral sex. [ 101 ] The accused was very intoxicated. The police officers found him to be passed out and difficult to arouse. He had urinated in his pants.

[ 102 ] I do not accept the accused’s version of the sexual activity which occurred. It does not have a ring of truth. I do not believe that the complainant engaged in consensual sex as he described. The complainant’s actions following the sexual interaction are consistent with her being assaulted and inconsistent with her having engaged in consensual sex. CONCLUSION [ 103 ] I do not believe the testimony of the accused and reject it. His evidence does not raise a reasonable doubt. [ 104 ] I accept the evidence of the complainant that she did not consent to engage in sexual activity with the accused.

I am satisfied beyond a reasonable doubt that she did not consent and also that the accused knew that she did not consent. [ 105 ] On the whole of the evidence, I find that the Crown has proven beyond a reasonable doubt that the accused sexually assaulted the complainant as charged. Accordingly, I find him guilty. BY THE COURT The Honourable Judge R. Lamperson Provincial Court of British Columbia