R. v. C.M.M., 2017 BCPC 443

Citation: R. v. C.M.M. 2017 BCPC 443 Date: 20171115 File Nos: 23534-1; 2354-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. C.M.M. REASONS FOR JUDGMENT OF HONOURABLE JUDGE P.R. MEYERS PUBLICATION BAN YOUTH MATTER - RESTRICTION ON ACCESS s. 118 and s. 110 YCJA Counsel for the Crown: D. Boblin and J. Robinson Counsel for the Defendant: B. Martland and J. Saulnier Place of Hearing: Vancouver , B.C.

Date of Hearing: May 23, 24, 25, 26, 30 & 31; June 2, 6, 7, 8, & 9; July 20; September 26 & 28, 2017 Date of Judgment November 15, 2017 [ 1 ] Mr. M. is charged with three offences. [ 2 ] The first two charges are that on February 28th, 2016 he committed the offences of unlawfully confinement and aggravated sexual assault of Ms. F. [ 3 ] The third charge is that on October 24, 2015, he committed the offence of sexual assault of Ms. B.P. [ 4 ] I will first deal with the charges of aggravated sexual assault and unlawful confinement of Ms. F. [ 5 ] The Defence does not contest that the injuries to Ms.

F.’s vagina and the circumstances of the assault would constitute an “aggravated” sexual assault, should the Court find that the sexual assault was proven in this case. [ 6 ] Mr. M. was 16-years old and Ms. F. was 17-years old at the time of the alleged offences. Prior to February, 2016, they had seen each other at a number of parties, including one party at his house and they could best be described as friendly acquaintances. [ 7 ] They both had part-time jobs at Canadian Tire and occasionally their shifts would coincide.

They had minimal personal interactions there. [ 8 ] They had neither dated nor spent any time alone prior to February 28, 2016. [ 9 ] Ms. F. said that she simply wasn't interested in either dating Mr. M. or spending any time alone with him. [ 10 ] Ms. F. described how shortly after they had met in September, 2015, Mr. M. started texting her and "hitting on her”. She told him that she wasn't interested and that she had a boyfriend. [ 11 ] Soon after that conversation, Mr. M. started to show an interest in Ms. F.’s girlfriend, Ms. B.P., instead of her. Mr. M. continued to text Ms. F. but it was about Ms.

B.P. and some of the relationship issues which he was having with her. Ms. F. said that she didn't give him any advice, she just listened to him. Some later time, Mr. M. texted her saying that he wished he could be with her instead of with Ms. B.P. She declined that implied offer. [ 12 ] On October 24 2015, Ms. F. was in the car when Ms. B.P. was driven to and from Mr. M’s house where he allegedly forced Ms. B.P. to perform fellatio on him. Ms. B.P. told Ms. F. about the incident that night. [ 13 ] From that moment on Ms. F. said that she avoided getting together with any of her girlfriends if she thought Mr.

M might be there, she only saw him at Canadian Tire when their shifts coincided but avoided talking to him and had stopped texting with him. However, in cross-examination, Ms. F. was shown some friendly texting that she had engaged in with Mr. M. after Ms. B.P. had told her that Mr. M. had forced her to perform fellatio. She acknowledged that she had indeed texted back and forth for several weeks after Ms. B.P. told her about Mr. M.’s actions that night. [ 14 ] On February 28, 2016, a private High School pre-graduation party was being held at a nightclub on Vancouver’s Granville Mall. Mr.

M and M.F. did not go there together. Each arrived at the nightclub with their own group of friends. [ 15 ] It was a “dry party.” However, both Mr. M. and Ms. F. had consumed some alcohol before arriving at the party. I find that neither of them was drunk. Both of them were “under the influence” but not to a degree that was significant enough to have impacted their behaviour that night. [ 16 ] As soon as Mr. M. saw Ms.

F. standing beside the Coat Check, he ran over and gave her a big bear hug and a kiss. [ 17 ] Shortly after that, they spent some time together in the body of the nightclub. [ 18 ] Towards the end of the night, they ended up together inside a cubicle in the women’s washroom.

In dispute is whether or not whatever went on between them in the interior of the nightclub was consensual or not consensual, but primarily what is in the dispute is: whether or not what went on between them inside the washroom cubicle was consensual or non-consensual? [ 19 ] The sole questions to be answered respecting the first two charges are: Did Mr. M. unlawfully confine and/or commit an aggravated sexual assault of Ms.

F. while inside the washroom cubicle? [ 20 ] The Crown does not seek a finding as to whether or not there was a sexual assault and/ or unlawful confinement committed by virtue of any of the actions of Mr. M. towards Ms. F. prior to entering the washroom cubicle. [ 21 ] A considerable amount of testimony and time, however, was spent hearing and then arguing about the “pre-cubicle” behaviours. I must address the pre-cubicle evidence because the Crown have asked the Court to accept Ms.

F.’s version of all of their “pre-cubicle” behaviours and utilize those findings to help decide what ultimately happened inside of the cubicle.

The Crown argued that it was important for the Court to establish some factual background to assist the Court in deciding what ultimately happened inside the washroom cubicle, that is, whether an unlawful confinement and/or an aggravated sexual assault occurred in the washroom cubicle? [ 22 ] In my view, the Court does have to consider what the “pre-cubicle” events were, even though I am not being asked by the Crown to consider entering convictions related to any of those actions.

[ 23 ] These “pre-cubicle” events were described very differently by Mr. M. and Ms. F. [ 24 ] There were only a few facts that they agreed on and those were only that they had no romantic or dating relationship prior to February 2016, they had only seen each other at parties, had never spent any time alone together, they had texted one another occasionally and they had seen each other when they worked together at Canadian Tire. As well, they agreed that Mr. M had greeted Ms. F. with a big bear hug and kiss beside the coat check almost immediately after Ms.

F. entered the nightclub. [ 25 ] With respect to all of the important aspects of what happened “pre-cubicle”, their descriptions were dramatically different. [ 26 ] The conclusion that I come to you with respect to the “pre-cubicle” activity, is that I cannot totally reject what Mr. M. said had happened prior to entering the cubicle and I cannot totally accept what Ms. F. said had happened prior to entering the cubicle.

Indeed, I have some serious concerns with respect to each of their versions as to whether their interactions were consensual or non-consensual. [ 27 ] Here are the reasons why I have serious concerns with both of their testimonies about their pre-cubicle activities: [ 28 ] Mr. M. said that they were mutually kissing each other at two different times while seated on two different couches and also once also while standing in the interior of the nightclub. Ms. F. said that she only recalled kissing him back once and that was only when they were sitting on the first couch after he had pulled her down onto the couch.

She said that she kissed him back because she thought that’s what he wanted and if she gave him a kiss that would be the end of that and he then would leave her alone. However, other witnesses testified that they saw them mutually kissing each other beside the coat check (just after the bear hug), kissing while sitting on two different couches and also kissing on or near the dance floor. [ 29 ] Ms. F. testified that she had not reciprocally kissed Mr. M. after the bear hug. The Crown called a witness named, A.J. In his examination in chief, he was very helpful to the Crown. He testified that Mr.

M.’s bear hug of Ms. F., caused them both to fall down onto the floor by accident but upon getting up on their feet, Mr. M. kept trying to kiss and touch Ms. F. but she was trying to pull away and didn’t look like she was at all interested in kissing him. [ 30 ] However, in cross-examination he admitted that that was not what he had told the police. He agreed that he had told the police that Ms. F. was kissing Mr. M. back and at the time, he had thought, “Well, it’s okay.

It appeared to me to be a mutual thing that I was observing”. [ 31 ] In cross-examination, he also acknowledged that he originally told the police that he had seen Mr. M. and Ms. F., arm in arm several minutes after the bear hug and they seemed to be willingly kissing each other. [ 32 ] In cross-examination, he further acknowledged that he had told the police that while he was about 5 metres away from the couch, he saw Mr. M. and Ms. F. sitting on the couch and that she was actively kissing him.

He also told the police that he noticed “her legs were overlapping his legs, kind of draped over his legs and they were making out”. By “making out”, he said he meant “prolonged kissing for a number of minutes”. [ 33 ] In cross-examination, he admitted that the change in evidence from what he told the police to what he said in the witness stand was due to him being told, sometime after his statement to the police, that Mr. M. had raped Ms. F. and he came to believe that that accusation was true and so, he changed his impressions to coincide with his changed belief that Mr.M. had raped Ms.

F. [ 34 ] Two other Crown witnesses, C.B. and Ms. B.P. also described Ms. F. as, “kissing him as if she were really into it”. Mr. M. used that very same term (“really into it”) when he described Ms.F. as voluntarily kissing him back while in the interior of the nightclub, “pre- cubicle”. [ 35 ] Ms. F. denied that she had been dancing with Mr. M. [ 36 ] However, Mr. C.B. testified that he saw Mr. M. and Ms. F. on the dance floor, slow dancing, with their arms around each other and they were kissing. [ 37 ] These contradictions between the testimony of Ms. F. and the testimony of Mr. C.B., Ms. B.P., Mr.

M. and A.J.’s initial statement to the police, are of concern to me as to whether more than one kiss occurred, whether some “making out” occurred and whether hugging and dancing, occurred “pre-cubicle”. [ 38 ] The video which was taken inside the nightclub, which was reproduced in slow motion by the Defence, was too unclear to be able to make out whether there was any kissing, hugging, making out or dancing occurring at all. [ 39 ] The result is that I am unable to conclude if the kissing occurred, was it coerced or voluntary; if the hugging occurred, was it coerced or voluntary; if they were making out, was it coerced or voluntary? [ 40 ] I am also unable to determine whether they did or did not dance together. [ 41 ] However, even if there were consensual kissing, hugging, making out and dancing together, there is no way that could amount to any possible inference that Ms.

F. may also have consented to fellatio, digital penetration and intercourse once inside the cubicle. [ 42 ] Ms. F. testified that Mr. M. pulled her forcibly, against her will, all around the nightclub. [ 43 ] I have watched and re-watched the videos in slow motion and I am simply unable to make out whether Ms. F. was voluntarily walking arm in arm around the nightclub with Mr. M. or whether he was holding on to her forcefully and pulling her around the nightclub.

In the video, there appears to be a couple of times where she put her arm around him while walking up the stairs but again, the video was not clear enough to determine whether she was doing that as “a friendly gesture” or whether she was trying to keep her balance while he was pulling her up and down the stairs. In the video, Ms. F. also appears to trip a couple of times while going up and

down the stairs but once again, the video is not clear enough to make out if that was due to being pulled by Mr. M. or simply trippingwhile walking so close together while they were going up and down the dimly lit staircases. [44] Ms. F.’s explanation was that Mr. M. was effectively dragging her around the nightclub and Mr. M.’s explanation was that theywere tightly holding onto each other while they were voluntarily making their way through the nightclub together. There were no otherwitnesses who saw this and the video presented simply could not help me in discerning one way or another.

I simply cannot concludeone way or the other whether Ms. F. was being pulled around the club by Mr. M. or whether they were moving around the darknightclub, arm in arm by mutual consent. [45] Another part of the pre-cubicle behaviour that I have to look at is the fact that there were many opportunities on the way to thewashroom cubicle for Ms. F. to reach out to somebody for help and to call attention to her dilemma. [46] Firstly, there were two different security guards (at two different places and times) whom she was right next to on the mainfloor of the nightclub.

She was within a foot of each to them but she did not say or do anything to attract their attention. Secondly, therewas another security guard posted right outside the entrance to the women’s washroom and once again, she did not try to catch hisattention to get his help. In the video, it is clear that she does not even turn her head towards this security guard and he did not seem tolook towards her, either.

Lastly, when she entered the washroom, there were a number of young women standing at the mirrors and shedid not in any way try to attract their attention to seek their help nor did any of them see anything that seemed amiss and therefore attemptto intervene. These young women were not called as witnesses but both Mr. M. and Ms. F. both agreed that they were in the washroomand there was no interaction with any of them. [47] Ms.

F. explained that while in the interior of the nightclub and when she entered the washroom, she did not attempt to reach outfor any help because she was too scared, too embarrassed and didn’t want to “make a scene”. [48] Ms. F.’s evidence in this regard and her explanation for not reaching out for help is certainly a plausible explanation for notreaching out for help. However, I cannot totally discount the possible alternative which the Defence suggested – that she didn’t call outfor help because she was voluntarily going into the washroom and then also into the cubicle. [49] I am unable to decide why Ms.

F. did not reach out for help both while in the interior of the nightclub or in the washroom beforeshe entered the cubicle. [50] In

summary then with respect to the pre-cubicle behaviour:

a) I am unable to decide whether the kissing, hugging, making out, happened within the interior of the nightclub and if so, whetheror not it was consensual;

b) I am unable to decide whether the movement throughout the interior of the nightclub, into the washroom and then into thecubicle, going into the, were done with or without her consent;

c) I am unable to decide why Ms. F. failed to avail herself of the help which was close by her while she was in the interior of thenightclub, while she was about to enter the washroom, when inside the washroom and then just before she went into the cubicle.

I amunable to conclude whether the reason was because she was consenting to the activity or because she was just too scared, tooembarrassed and not wanting to make a scene and that was why she did not try to get the help that was obviously there for the asking. [51] I am therefore not able to use their “pre-cubicle” behaviour to guide my deliberations as to what happened later inside thecubicle. [52] In my view, the events of the night involved two very separate and distinct scenarios. When Mr. M. and Ms. F. entered thecubicle, it became a dramatically different circumstance and situation.

They were then alone and in a small confined space, as comparedto before where they were interacting with each other within a very large, open, public space with hundreds of other people around. Inthe cubicle, it was just the two of them alone. The sexual advances there were exceedingly more serious, more intimate and far moreaggressive compared to before in the interior of the nightclub. [53] Therefore, I will not be using those pre-cubicle activities to assist in assessing credibility nor to assist in determining whathappened inside of the cubicle.

I am dealing with two very distinct and separate situations. [54] Even if Ms. F. had consented to the kissing, the hugging and the making out, and I am not saying that I found as a fact that shedid, any consent to those activities simply could not be used in any way, to infer or serve as evidence that she might have consented tothe fellatio, the digital penetration and the intercourse inside of the cubicle. [55] I will now scrutinize the testimony of Mr. M. and Ms. F. as to their versions of what happened inside of the cubicle.

I will belooking at their differing versions along with the testimony of post-cubicle witnesses, as well as the testimony of Doctors, Forsyth, Muiand Jurenka. [56] When the court is assessing the evidence of each witness, including, of course, the Accused, the Complainant and the testimonyof each of the other witnesses, each witness’s testimony is not to be scrutinized in a vacuum but rather, it is to be looked at andscrutinized as against the testimony of each of the other witnesses. [57] When analysing the testimony of the Accused, I am guided by the principles set out in the well-known cases of R. v.

W.D. (SCC), [1991] 1 SCR.742; R. v. H.C.W. (1991) 68 CCC [3rd] 146 (BCCA); and R. v. Anand 2013 BCCA 303. [58] In the R. v. Anand case [supra] at Paragraph 6, Mme. Justice Levine succinctly commented on the trial judge’s use of the W.D.guidelines:

“ This was a case where the trial judge had to determine, on the whole of the evidence, whether he had a reasonable doubt about the guilt of the appellant. He had to deal with inconsistencies and gaps in the evidence of both the appellant and complainant. He had to attempt to make some logical sense out of the conflicting descriptions of the events in question.

In my opinion, the trial judge did the job the trial judges are to do: he assessed the evidence of each of the appellant and complainant, and, in the context of the legal principles about which he correctly instructed himself, drew conclusions about their credibility and reliability”. [ 59 ] The only concern which I have with Ms. F.’s testimony about what happened in the cubicle, while looking at her testimony in the context of the testimony of Mr. M., the post-cubicle witnesses and the testimony of each of the three doctors, is as follows:

a) Ms. F. said that Mr. M. took off her bra against her will after entering the cubicle. Mr. M. said that Ms. F. voluntarily took off her own bra. Mr. M. described the unique way in which Ms. F. took off her bra. He said that she rotated the clasp which was in the back of her bra, to her front, underneath her arm pit and then undid the clasp. Her testimony on this issue, causes me concern because it would be an unusual way for a man to take off a woman’s bra and we have Ms. F. saying that in fact, sometimes she did take off her bra in that way. Mr. M. could not possibly have known that.

It is just too much of a coincidence that he would have been able to describe Ms. F. as taking off her bra in that way. [ 60 ] I have many concerns with Mr. M.’s testimony as to what happened inside the cubicle. When I look at his testimony in the context of the testimony of Ms. F., the post-cubicle witnesses and the testimony of each of the three doctors, my concerns are as follows:

a) Mr. M. testified that after they had both taken off their clothes in the cubicle, Ms. F. put her hands into his pants and took out his penis, he fondled her breasts and then she performed oral sex on him. He said that it was after all this, that he asked her if she wanted to have sex. He said that he asked her that because he knew that was the right thing to do.

In my view, it does not make sense that he would have asked her if she wanted to have sex after they both got naked, after he had fondled her breasts, after she had taken his penis out of his pants, after he digitally penetrated her and after they had engaged in fellatio. If he was going to seek consent, it is far more plausible that he would have asked her before they got undressed or at the very least, before he began to fondle her, digitally penetrate her and have oral sex with her. The timing of his asking the question is not plausible. I do not believe this part of his testimony.

It does not make sense that he would suddenly, for the first time, have asked her if she wanted to have sex after they had already engaged in those significant sexual activities. The timing of his question to her is not plausible and I do not believe this part of his testimony.

b) Mr M. testified that when he was unable to maintain his erection, he took his penis out of Ms. F.’s vagina. He said that she then offered to help him get erect again by performing oral sex on him and then she proceeded to do so. The problem is this: his penis would have been covered in blood as a result of the blood pouring out of Ms. F.’s vagina. In my view, it is highly unlikely that Ms. F. would have offered and proceeded to give him oral sex when it was readily apparent to her that he had blood (her blood) all over his penis.

In my view, this would not be something that she would offer to do, that is, initiate kissing Mr. M.’s bloody penis. Furthermore, this “offer” by Ms. F. would have to have been made after she had seen all the blood in and around the toilet. She would have been making the decision to kneel down on her bare knees, on a cold bathroom floor covered with her blood, in order to kiss his bloody penis. The idea that she would have initiated and voluntarily performed fellatio in these circumstances is just not believable. Ms.

F., of course, testified that she made no such offer nor did she kiss his penis after he had withdrawn it from her vagina. I do not believe this part of Mr. M.’s testimony.

c) Mr. M. described that after the fellatio did not re-arouse him, he got up to leave. Just before he left, he asked her if she was okay and she said that she was. Ms. F. asked him to pass her shirt to her (it was laying on the washroom floor). He didn’t bend down to pick it up. Instead, he just pointed his finger at the shirt and told her to get it herself. He then proceeded to leave the cubicle, leaving Ms. F. sitting naked and bleeding inside of the cubicle. He said that he left to wash his shoes. He said that he told her that he would be back soon.

If this were a consensual sexual encounter, there certainly would have been some caring and concern shown by Mr. M., given that he had just engaged in consensual sex with a woman and she was now bleeding all over the place. Mr. M.’s callous behaviour would be more consistent with him having just forcibly sexually assaulted Ms. F. rather than having had a consensual sexual encounter with her. The fact that he showed no concern at all for Ms.

F.’s physical well-being, particularly given the tremendous amount of bleeding and considering his admission that “she seemed a bit dazed and confused almost”, is at odds with what someone would reasonably expect any man to do if he just had engaged in consensual sex with a woman. I do not believe this part of Mr. M.’s testimony.

d) Furthermore, it should be noted that after Mr. M. left the cubicle, he made no attempt whatsoever to get someone to help Ms. F., for example, to get her some clean water and towels to wash the blood away nor did he make any efforts to return quickly to offer his help to her. In addition, Mr. M. agreed that while leaving he saw several other young women standing at the sinks and he did not ask them to help out. He said nothing to them.

e) Twenty minutes passed after he left the cubicle and he still had not sought any help for her nor did he return to the washroom cubicle to offer help to her. He was arrested in the men’s washroom twenty minutes later while still washing his body and shoes.

f) It had to be very obvious to him that she had been and still was bleeding profusely and sitting in a bathroom cubicle while

covered in blood. It would have been completely obvious to him that she was not okay, even though she had said that she was okay. I believed the evidence of the many witnesses that came upon Ms. F. within minutes of Mr. M. leaving. They all testified that she definitely was not “okay”. She was hyper-ventilating, “out of it”, unfocused, rocking back and forth, sobbing uncontrollably and all the while, blood was streaming non-stop down her legs. There is no way that within just a couple of short minutes she could have gone from “okay” to this state. I do not believe Mr.

M. when he said that after he left, he didn’t get her help her right away or return quickly because he thought that she was okay. She obviously was not okay and that would have been as obvious to him as it was to the multiple people who saw her just a couple of minutes after he had left.

g) It is clear from the testimony of both Mr. M. and Ms. F. that it was Mr. M. who initiated the first touching, that is, the bear hug. After the bear hug, he tried to kiss her. The evidence was also that Mr. M. initiated the kissing on the couch. At first, Mr. M. said he couldn’t remember who initiated the kissing but later in cross-examination, he acknowledged that he probably was the one who had initiated the kissing. This first bear hug and possibly the multiple kissing inside the nightclub are not of huge moment, but they do demonstrate that from the very first encounter with Ms. F., he was the one initiating the sexual advances.

h) Mr. M. testified that Ms. F. was a willing participant in the sexual encounter in the cubicle. But, Ms. F. had known Mr. M. for many months, they had never dated, Ms. F. swore that she had no sexual attraction to him before or during that night and one of her girlfriends testified that Ms. F. had her told her, long before that night, that she had no interest whatsoever in Mr. M.

i) The Crown called Dr. Jurenka as an Expert Witness, to give her opinion as to the likely cause of Ms. F.’s severe second degree tears to her vagina’s musculature. Her opinion was that there was only “a small likelihood” and that “it was not very possible” that those serious tears to Ms. F.’s vagina could have been caused by consensual sexual intercourse as opposed to the very strong probability that they were caused by non-consensual/forced sexual intercourse.

I give her evidence some weight but cannot not give it significant weight because her opinion, although based upon her own vast personal experience as an obstetrician and gynaecologist who had extensive training and experience in dealing with sexual assault patients, was also based upon the published medical research available in the area of vaginal injuries reported to have be caused by both consensual and non-consensual (forced sexual intercourse). However, there were three problems with respect to the foundations for Dr. Jurenka’s opinion. The first problem was that she did not personally examined Ms. F.

The second problem was that she had never seen or treated anyone with an injury (a tearing to the musculature of the vagina) similar to that of Ms. F. The third problem was that the only medical research available to her was unreliable. It was not research which could be accurately classified as “accepted medical research”. Dr. Jurenka acknowledged in her cross-examination that: the sample groups used were statistically too small; the research reports were not peer reviewed; and the research was largely only anecdotal. These are the reasons that I cannot give significant weight to Dr.

Jurenko’s opinion with respect to the cause of the injuries to Ms. F. being due to non-consensual as opposed to consensual intercourse. The weight of this part of her evidence is limited but nonetheless still constitutes “some” evidence and does have some probative value in assessing Mr. M.’s testimony and the Crown’s evidence as a whole.

j) There was, however, several parts of Dr. Jurenka’s evidence which I do accept and find to be of significant probative value in favour of the Crown’s argument that the intercourse was non-consensual (forced). These portions of Dr. Jurenka’s evidence, serve to challenge Mr. M.’s testimony that the intercourse was consensual: - Dr. Jurenka spoke about the automatic physiological response of a woman’s body when sexually aroused.

She said that the vagina naturally starts to self-lubricate and the vaginal walls elongate in anticipation of imminent sexual intercourse and that both of these physiological responses continue to occur during the entire span of the intercourse. Dr. Jurenko explained that this was Nature’s way of physiologically preparing a woman’s vagina for the imminent sexual intercourse.

She explained that this only happens when a woman is ready, willing and able to have intercourse but it does not happen when a woman is not ready and not willing to have intercourse. - She explained that without the lubrication and enlarging of the vagina, intercourse would be very uncomfortable and painful for the woman and it would also impede the successful penetration of the penis into the vagina. Both of these consequences, that is, the pain and the difficulty in penetration, were exactly what occurred when Mr. M. entered Ms.

F. and that was because she was not ready and not willing to have intercourse at that time.

k) Dr. Jurenka also told the Court that when a couple are engaged in mutual consensual sexual intercourse, they will each try to change positions or stop entirely if it becomes evident that they were hurting their partner. ̵ Mr. M. did not say that he ever tried to alter his position while he was not sitting on the toilet seat with Ms. F. on top of him nor did he, at any time, stop forcing his penis into her until he finally lost his erection. ̵ She was not lubricating, he was pushing his penis hard into her and he was not able to penetrate very far, she was squirming and trying to push him off.

He did nothing to accommodate her discomfort which must have been obvious to him even without her screaming out in pain. He did nothing to alleviate or end her discomfort. [ 61 ] Ms. F. said that she tried the best she could to squirm her way out of that very painful position but he was just too big, too heavy and holding on to her so tightly that she was not able to budge. [ 62 ] I do not believe Mr. M.’s testimony when he asserted that she was a willing participant at the start and also continued as a willing participant while he was trying to penetrate her further. [ 63 ] As mentioned before, Mr.

M. testified that he asked Ms. F., early on in the cubicle, whether she wanted to have sex. I have

already dealt with the timing of that question and said that I did not believe that he even had asked the question. [64] It should be pointed out that in any event, Mr. M. did not say that he ever checked in with her again to confirm her continuingconsent. There is an affirmative obligation for the man to assure himself that the woman is continuing consent during the whole sexualencounter. In this case, according to his own testimony, he just kept on trying unsuccessfully, to push his penis further into her vagina.

It should be recalled that he testified that “the entire time it kind of felt really strange”, but he never bothered to ask her how it wasfeeling for her and if she wanted to continue? Instead, he just continued on and on and did not a word to her. He finally stopped onlywhen he could not penetrate her any further and he lost his erection. The fact that he heard no screaming does not allow him to infer or conclude that she was not objecting to intercourse. He had an ongoingobligation to actively confirm her consent. He did not do so. [65] Ms.

F. said that she did not consent to the intercourse and was experiencing overwhelming pain immediately upon Mr. M.’spenis entering her and continued to experience that pain non-stop thereafter. Dr. Jurenko gave her opinion confirming that the very severe and deep tearing injury to Ms. F.’s vagina would have caused herexcruciating pain. She said that the pain would have started instantly with the initial entry of the penis and the pain would havecontinued to increase during the entire duration of the intercourse. I should note that this opinion by Dr.

Jurenka was based solely on herexperience and training and not partly based upon potentially flawed medical research. [66] Dr. Jurenko’s opinion was shared by the Obstetrics and Gynaecology Doctors, Forsyth and Mui who were the attendingphysician and surgeon, respectively. Dr. Forsythe said that Ms. F.’s pain was evident from the time she entered the Hospital. Dr. Mui said that her excruciating paincontinued through the surgery (stitching of the vaginal tear).

He said that even the pain medication that he gave her, did not eliminate thepain. [67] All of this medical evidence is important because it corroborates Ms. F.’s testimony that the pain she felt upon Mr. M.’s penisfirst entering her and throughout was beyond belief and was like nothing she had ever experienced before. [68] Given Ms.

F.’s explanation that she was experiencing incredible pain and the three doctors confirmed that her pain would havebeen severe, there could be no satisfactory explanation as to why she would not have screamed out in pain, other than her ownexplanation that she was in a complete state of shock, making her totally paralysed and incapable of using her voice to scream out. I believe Ms. F. when she explained that that was why the only reason that she didn’t scream out in pain and beg Mr. M. to stop. Shesaid that all she could do was to keep saying in her head, “Stop! Stop!

Stop!” [69] I turn now to the unlawful confinement charge. [70] Ms. F. told the Court how almost immediately, she tried to get out of the cubicle. This attempt was made as soon as she realizedthat Mr. M. wanted her to perform oral sex on him. She testified that she said, “No” and tried to get to the door to escape but he blockedthe door and he was just too big and too strong for her to be able to shove him out of the way. Mr. M. is very tall and muscular, he body builds and he is an accomplished athlete. Ms. F. is short and thin. Her strength against hisstrength would be minimal. Ms.

F. said that when she was on top of Mr. M. who was sitting on the toilet seat, she tried her best to squirm and push him off her but itwas impossible. She said that he was holding on to her hips so tightly that she just felt like a rag doll and had no power or ability toextricate herself from his hold and escape from the cubicle. [71] I do not believe Mr. M. when he said that he did not try to detain her in the cubicle.

I do not believe him when he said that hedid not block her exit and that she stayed inside the cubicle because she wanted to stay. [72] The law is that a Judge can accept all, part or none of the testimony of any witness. See R. v. D.A.I. 2012 SCC 5; R. v. Francois{1994} (SCC), 2 SCR 827; R. v. Howe (2005) (ON CA), 192 CCC (3rd) 480 (Ont. CA) 480 and R. v. Thomas (1993) 4 CR (4th) 249 (BCCA). [73] My findings as to the credibility of Mr. M.’s testimony, Ms. F.’s testimony, as well as the testimony of all of the otherwitnesses, including the doctors, is based upon the above statement of the law. [74] In

Summary: A. I believe Ms. F. when she said that she never consented to any of the sex acts while inside the cubicle. The only caveat is that Ihad some doubt as to who took off her bra. B. I believe Ms. F. when she testified that she said, “No” when he first pushed her head down to perform fellatio and that she againwas able to utter, “No” just before he started to put his penis into her vagina. C. I not to believe Mr. M. when he said that Ms. F. initially took his penis out of his pants and voluntarily started to performfellatio. D. I believe Ms. F. when she adamantly denied that Mr. M. ever asked her inside of the cubicle, if she wanted to have sex and thatshe agreed to have sex with him.

[75] In conclusion with respect to Counts 1 and 2: A. I have no reasonable doubt that Ms. F. was sexually assaulted in an aggravated manner by Mr. M. when he forcibly digitallypenetrated her against her will, when he twice forced fellatio on her against her will and when he forced her to have sexual intercoursewith him against her will. B. I have no reasonable doubt that Ms. F. was overpowered by Mr. M. while in the cubicle and he forced Mr. M. to remain lockedin the cubicle against her will and submit to all of the sexual acts. [76] Accordingly, Mr.

M. is guilty of aggravated sexual assault and unlawful confinement of Ms. F. on February 28, 2016. [77] I now turn to Count 3, Mr. M.’s alleged sexual assault of Ms. B.P. on October 24, 2015. [78] It is important to say right at the start, that in no way can any of the facts or credibility findings which were made with respect toCounts 1 and 2, be used in deciding the case against Mr. M. in Count 3 of the information. [79] Here is a

summary of the evidence: [80] In October 2015, Mr. M. was 16 years old and Ms. B.P. was 17 years old. At that time, in their own vernacular, “they had athing” together. Mr. M. said that this term meant that they were not boyfriend and girlfriend yet, but were more than just friends. [81] They first met in Lynn Valley in North Vancouver in September, 2015. They were there with some friends. They exchangedcontact information with one another. Over the next six weeks or so, they communicated by Snap Chat, sometimes late into the night. Occasionally, they got together as part of a group of friends. Ms.

B.P. and her friends went over to Mr. M.’s house once when he washaving some friends over. [82] They had never gone out on a formal date prior to the incident in question and the only time that they had spent alone was onetime when they went for a walk in a park close by Mr. M.’s house. On the walk, they told each other that they liked each other and they kissed. This get together in the park lasted about 21/2 hours. [83] In mid-October 2015, Mr. M. and Ms. B.P. had a falling out while they were at Ms. F.’s house for a birthday party. Ms. B.P.was paying more attention and flirting with Mr.

M.’s friends, he got jealous and angry at Ms. B.P. and he left the party. Ms. B.P. hadtexted him that night and they texted each other again the next morning. The next day, Mr. M. found out that Ms. B.P. had in addition toflirting, “done something” with one of his friends after he had left the party. Mr. M. was angry with Ms. B.P. and expressed his anger toher. They continued to text each other during the week about these two things. Ms. B.P. apologized to Mr. M. but he continued toremain upset with her. [84] On October 24, 2015 which was about a week after the birthday party, Ms. B.P. invited Mr.

M. to join her and her girlfriends atPapa John’s for some pizza. Mr. M. told her that it was too late at night for him to go out. He told her that his parents would not let himgo out but maybe she could come over to his house so they could talk. Ms. B.P. said that it was his suggestion. Either way, Ms. B.P.went over to Mr. M.’s house that night to talk about the events on the night of the birthday party. [85] Ms. B.P. knew that Mr. M. was still pretty upset with her and that he still wanted to discuss the birthday party incidents. Ms.B.P. was a bit nervous because she knew he was mad at her. Ms.

B.P. asked her girlfriends to drop her off at Mr. M.’s house. Hergirlfriends suggested, and she agreed, that if she felt uncomfortable at any time, she should text them and they would come right away topick her up. The text was to be by way of a simple Emoji smiling face. [86] Ms. B.P.’s girlfriends dropped her off at Mr. M.’s house at about 10 PM. She saw Mr. M. climbing out of his house through awindow. He brought a hoodie for her because it was cold outside. He then walked on the lawn towards her. They met up together atthe front of the lawn and hugged. [87] Ms.

B.P. was the first one to speak and she said that she was sorry for what had happened the week before at the birthday party. They then started to kiss. Ms. B.P. was comfortable with that and they kissed for a minute or two. [88] They both agreed that fellatio then took place. [89] This brings to an end the facts about which they both agreed. [90] Each of their versions as to how the fellatio came to happen, how it happened and what happened afterwards, is completelydifferent. [91] Ms. B.P. said that the fellatio was forced on her and was totally against her consent. [92] Mr.

M. said that fellatio was totally with her consent. [93] The duty imposed upon the Court is to decide whether or not the Crown have proven, beyond a reasonable doubt, that Mr. M.forced Ms. B.P. to perform fellatio and thereby committed a sexual assault. [94] Evidentiary wise, this is not a complicated case. It is a case which is often referred to as a, “she said, he said case”. However,that does not necessarily make the case easy to decide. In order to help the trial courts decide these types of cases, the Superior Courtshave set down procedures to help trial judges decide these types of issues.

Those cases were previously referred to and they are, R. v. W.D. (supra); R. v. H.C.W. (1991) (BC CA), 68 CCC (3rd) 146 (BCCA) (supra); and R. Anand 2013 BCCA 303(supra).

[95] It is not a contest as between Mr. M. and Ms. B.P., that is to say, which person’s evidence is more believable? Rather, the Courtmust first look at Mr. M.’s evidence and decide if the Court does believe him. If the Court does believe Mr. M., then that is the end ofthe matter and he is entitled to an acquittal. If the Court does not believe the testimony of Mr. M. but is left in reasonable doubt by it, heis entitled to an acquittal. Third, even if the Court is not left in reasonable doubt by the evidence of Mr.

M., the Court must still ask itselfwhether, on the basis of the evidence which the Court does accept, the Court is convinced beyond a reasonable doubt by that evidence ofMr. M.’s guilt. Fourth, if the Court does not fully believe Mr. M.’s version of the events and finds Ms. B.P.’s version to be morecredible, but still remains uncertain as to what actually did a happen, then there is a reasonable doubt and the Court must acquit. [96] Those are guidelines that this Court shall follow when deciding this Case. [97] I do believe the evidence of Ms.

B.P. as to what had happened just before, during and after the sexual encounter. [98] I do not believe the evidence of Mr. M. as to what happened just before, during and after the sexual encounter. [99] Mr. M.’s testimony was that as soon as her friends dropped Ms. B.P. off at his place, they hugged and then sat down on thelawn. Next, they lay down side by side, talked and kissed. Ms. B.P. then crawled on top of him. He asked her for oral sex and she said,“Not right now”. He said that they continued kissing and talking and then he said, “How about now?” and she said, “Sure”.

He pulleddown his pants a bit and she started kissing his penis. He said that this lasted for a couple of minutes until she started to gag. He saidthat “he thought that she didn’t want to do it anymore” so he stopped and pulled up his pants. He said that during the oral sex, she hadher mouth and hands on his penis and he had one of his hands on her hair. He said that he was not pushing or pulling her in any way. Hesaid that they continued to talk after this. Ms. B.P. then texted her friends to pick her up. He waited until her friends arrived and then, hewent back into the house. He testified that Ms.

B.P. at no time said, “No”. He said that she willingly engaged in the oral sex. He saidthat their entire time on the lawn was 30-35 minutes. He did not recall any of the conversation but did say that they did not talk abouttheir relationship issues but they did talk a lot. [100] Mr. M. said that he texted her later on that night to apologize to her for what had happened. He texted her again the nextmorning and apologized once more. In some more texts, he again referred to last night as “terrible” and he apologized.

In the WitnessStand, he explained that he wasn’t apologizing for forcing her to perform oral sex, he was apologizing to her for making her maybe, “feelused”. Mr. M. explained what he meant by his apology was that the incident on the lawn might have felt to her like just a straight onenight sexual “hook up” but he really felt that he wanted to have something more serious than that with her. More consequential, heexplained that he was also apologizing for being impolite by not inviting her to talk things over inside the house as opposed to stayingoutside where it was so cold. [101] Mr.

M. said that they continued to text one another for a few days afterward and they both expressed an interest in still going outtogether. [102] However, he said that a week later, an incident happened at a Halloween Party between Ms. B.P. and another young man. Mr.M. said he was hurt by this and called off their relationship. [103] Ms. B.P.’s version follows: [104] Ms. B.P. testified that after they very briefly hugged and kissed at the front end of the lawn and they walked slightly to the sideof the lawn. They kissed again and then suddenly Mr.

M. took his penis out of his pants and said, “Please?” She said, “No” and pushedhim away. Twice more, with his penis still out, he said “Please?” and she said, “No” and pushed him away. But then, Mr. M. pushedher head down to his penis and stuck his penis in her mouth while holding her head down, tightly. She said that she tried to push himaway from her but he was holding her head too firmly. She said that she did not do anything with her mouth when his penis was in hermouth. After about 15 seconds, she started to gag. He then released his grip on her and withdrew his penis from her mouth.

She saidthat she was shocked and couldn’t speak. She just started to spit and spit. She immediately texted the Emoji symbol to her friends. Thatwas the agreed upon signal to come and get her immediately. Neither of them spoke a word. The friends arrived within 5 minutes andshe left. [105] Once in the car, she told her friend, H.D. that Mr. M. “made me suck his dick”. H.D. was called as a Crown witness andconfirmed this. She also said that Ms. B.P. continuously was spitting out the car window, seemed down, shocked and confused. [106] Later that evening she told the same thing to Ms. F. Ms.

F. confirmed this when she testified. [107] These complaints were admissible evidence as per R. v. Hughes, 2001 BCCA 424; R. v. Ay (1994) (BC CA), 93 CCC (3rd) 456 (BCCA). [108] Ms. B.P. did not tell her parents about the incident. She did not tell the Police about the incident. She did not tell any of theSchool Counsellors about the incident. [109] When asked why she didn’t go to her parents, the police or the counsellors, her answer was the same across the board. She saidthat she was embarrassed, she didn’t think anything could be done and she didn’t think it was such a big deal.

She said that she reallydidn’t know how to handle the situation because something like this had never happened to her or any of her friends before. Further, shesaid that she was a shy and non-confrontational type of person and was just too afraid to confront Mr. M. afterwards. [110] She said that when she texted him the following week she was feeling “confused” in that she seemed to still be having “somefeelings for him”. [111] She added that she even felt the need to apologize to Mr.

M. a week later when he got mad at her for having done somethingwith one of his friends at a Halloween Party. [112] The Police only became involved some 4 ½ months later after the nightclub sexual assault involving her friend, Ms. F.

happened. Ms. B.P. said that it was only then that she started to realize that what had happened to her probably was serious. Her friend, K.R. told her that she should go to the Police and tell them what Mr. M. did to her on the lawn in October, 2015. K.R. threatened that if she didn’t tell the Police, she would. Ms. B.P. did not go to the Police. K.R. made good on her threat and she told the Police. [ 113 ] K.R. was called as a Witness and confirmed the above. [ 114 ] The Police then called Ms. B.P. and conducted a taped audio/visual interview with her and she told the Police what had happened.

The Defence introduced this Statement so they could cross-examine Ms. B.P. as to any inconsistencies with the testimony that she gave at Trial. The discrepancies between her statement to the Police and her testimony in Court were not significant. [ 115 ] As I said previously, I did not find Mr. M.’s evidence to be truthful or believable. Here are the reasons why: [ 116 ] He said that he thought the reason why they were getting together that night was to discuss his anger about her having ignored him at the birthday party and her activities with his friend after the birthday party. Mr.

M. testified that they did talk a lot that night but never touched on the topic of the birthday party, his anger or their relationship. He said that he could not remember any of the things that they talked about but he was sure that they had talked a lot. [ 117 ] Ms. B.P. confirmed the reason for the get together was to iron out Mr. M.’s anger towards her. She was feeling anxious and worried about his ongoing anger and about how the meeting would go.

She said that was why she had arranged with her friends to emoji them if things got uncomfortable. [ 118 ] So, given the purpose of the get together and that she was feeling anxious, in order to get the talk started, she immediately said, “I’m sorry”. There was no response at all from Mr. M. Instead of engaging in talk, Mr. M. immediately began to kiss and hug her. She didn’t object to this. However, about two minutes later, he pulled out his penis and asked her, “Please” kiss it. She did not meet with him to have sex, she went there to have a difficult, serious conversation.

Supposedly, this was also the reason that he was there. Instead of any discussion and without speaking any words (other than the initial greeting), he pulled out his penis and requested that she kiss it. Neither before nor after this happened were their issues ever discussed and that was certainly not because Ms. B.P. wanted to avoid the discussion. Instead of talking, Mr. M. took advantage of the opportunity of being alone with her to sexually assault her. [ 119 ] Mr. M.’s explanations of what his texted apologies meant were totally unbelievable.

In the texts, he repeated several times that he felt “terrible” about what happened that night. One of the reasons he gave for feeling so terrible was that he had not invited her into the house. In Court, he explained that he wasn’t feeling terrible about the fellatio that happened. His explanation simply does not make any sense because he had already told her before she came over, that that he couldn’t invite her into the house because it was too late and his parents wouldn’t permit it. Also, he had graciously brought out a hoody for her so as she could keep warm.

There was absolutely nothing that could have required him to apologize to her for meeting with her outside rather than inside his house. [ 120 ] Not only did Ms. B.P. refuse to give him oral sex, she even gave him reasons for refusing. She told him that she didn’t want to; she told him there were houses around and people might see them see. I believe that she did tell him that and those reasons would have made perfect sense for her to have said in the circumstances. Mr. M. denied that she articulated any reasons. However, I believe Ms. B.P. [ 121 ] Mr. M. said that he stopped the fellatio for two reasons:

a) it was cold; and

b) when she started to gag, he “kind of got a bit of a feeling that she didn’t want to do it anymore”. The idea that one of the reasons he stopped was because he was cold, is completely unbelievable. [ 122 ] In cross-examination, he was asked if he asked her if she was okay when he heard all of her gagging. He said he did not. This absence of any concern for her well-being would be consistent with someone who had just forced the other person into fellatio, compared with a caring concern one would expect someone to have for person with whom they were having consensual fellatio. [ 123 ] Mr.

M.’s testimony was not credible. His account of what happened that evening is not consistent with “the preponderance of the probabilities which a practical and informed person would readily recognize in that place and in those circumstances”. (See R. v. Barwich , 2001 BCSC 1623 , para 10 ). [ 124 ] When I look at the evidence of Ms. B.P. as to what happened that night, I find her and her version totally credible. [ 125 ] Ms. B.P. went over to Mr. M.’s house that night to discuss his anger towards her for what happened between her and Mr. M.’s friends on the night of the birthday party.

She knew that their talk would be outside. [ 126 ] She was not looking forward to the discussion but knew that it had to take place. She arranged to meet in order to have that difficult talk and was apprehensive about how it would go. That was why she and her friends set out the plan that if things were to get uncomfortable, she could do a quick Emoji text to them and they would come and pick her up immediately. [ 127 ] She initiated the discussion right away with Mr. M. but the discussion never got underway. She didn’t go there to “make out” and was totally shocked when Mr.

M. apparently had other plans for them that night. [ 128 ] It made perfect sense that she would immediately text her friends as soon as he pulled his penis out of her mouth. That was her very first opportunity to do so. It was the prearranged escape plan and she followed that plan, instantly. [ 129 ] Within 5 minutes, her friends arrived and it is totally credible that she would be spitting continuously out the car window due to what had just happened to her. Her explanation to H.D. in the car, that Mr. M. “had just forced her to suck his dick” serves to confirm

the incident, the reason for all the spitting, and also her distraught emotional state, just moments afterwards. [ 130 ] I find that her explanation for continuing to text with him in a friendly way, for almost a week after this incident is believable. She was only a 17 year old young woman and she felt totally confused about her own feelings about what had happened. She still “cared for him” and she didn’t want to be accusatory or aggressive towards him because that “just wasn’t her”. I accept this as being the case. [ 131 ] Ms. B.P. did not make a complaint until 4 ½ months later.

In law and in common sense, nothing at all can be taken from a victim not complaining to the police or persons in authority, either immediately or soon after. In this case, however, the Defence specifically raised the issue that she had not complained to the police or to other persons in authority until much later because, they alleged, she was lying and a sexual assault never happened. She denied that suggestion. [ 132 ] The Defence suggested to her that she only complained to the police some 4 ½ months later because she had no choice.

The Defence suggested that she had no choice because her girlfriend, without her permission, had told the police about the incident and the police came to her house. The Defence suggested to her and she denied that she was put in a situation where she felt that she had to give her story to the police and carry on with the deceit in order to save face with her friends. [ 133 ] I do not accept any of these suggestions.

I accept the very logical reasons that she gave for not reporting the incident to the police or any other persons in authority, until the police came to her house to interview her. [ 134 ] I accept that her spitting profusely in the car, together with her distressed emotional state in the car, is confirmatory evidence of what she said she had just gone through with Mr. M. [ 135 ] Accordingly, I find that Mr. M. did sexually assault Ms. B.P. as charged. P. Meyers, PCJ.