R. v. Lopez-Rivas, 2022 MBPC 41

CITATION: R. v. Lopez-Rivas, 2022 MBPC 41 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) J. Mays ) for the Crown -and- ) ) Raul A. Lopez-Rivas ) A. Kavanagh ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: July 28, 2022 at ) the City of Brandon, in the ) Province of Manitoba Restriction on Publication: pursuant to s. 486.4 of the Criminal Code of Canada , any information that could identify the victim shall not be published in any document, broadcast, or transmitted in any way. S.

Hewitt-Michta, J INTRODUCTION [ 1 ] Someone sexually assaulted the intoxicated fifteen-year-old complainant at a house party in December of 2019. The only issue is whether the evidence proves beyond a reasonable doubt that the accused is the perpetrator. EVIDENCE [ 2 ] The complainant is eighteen years old but was fifteen on the offence date. [ 3 ] The sexual assault occurred at an apartment where the accused resided with a roommate.

The complainant knew the accused’s roommate and met the accused through the roommate on December 22, 2019 when she was at their apartment for a social gathering. [ 4 ] In the early morning hours of December 25, 2019, the complainant got a ride with others to the accused’s apartment for a second get-together involving many of the same people. There was drinking, music, and dancing in the living room. [ 5 ] The complainant was not an experienced drinker.

She had five or six beers. [ 6 ] Two or three hours after arriving at the apartment, everyone went outside for “ a smoke ” except for the complainant and the accused. They were in the living room. They went to the bedroom though she could not remember what led them to do so. She remembers being on the couch and then the floor in the accused’s bedroom. She was naked and the accused was on top of her. His penis was in her vagina. She could not say how long the sexual assault lasted. She remembers stopping him from penetrating her anally.

She could not remember if there was any other touching between them. [ 7 ] The lights were off during the assault but the complainant testified she could see the accused. When asked if there was any other reason she believed it was the accused, she referenced his physique as “ heavy set ”. [ 8 ] The complainant could not describe how the incident ended but thinks she fell asleep on the floor for a few hours. She could not recall whether anyone ever looked in while she was in the room or whether anyone else was ever in the room with her.

[ 9 ] When the complainant got up around 6:00 to 7:00 a.m., she asked a male to drive her home. That male was asleep in a bedroom with her friend. He was too intoxicated and the accused ended up driving her home instead. [ 10 ] The complainant first disclosed sexual abuse to a staff member at her high school when she discovered she was pregnant. She identified the roommate by name but not the accused.

She then told her mother who wanted to report the matter to police. (I infer there is a second allegation involving the roommate but there is no evidence before me and it is irrelevant other than to contextualize a comment made by one of the crown witnesses - see paragraph 19.) The complainant subsequently provided a statement to police in March of 2020. The complainant identified the accused from a properly prepared and presented photo array. [ 11 ] The crown called another witness who attended both December gatherings with the complainant. The witness was of similar age to the complainant.

They travelled to the apartment together in the same vehicle on December 25. The witness’ version of events corroborated some aspects of the complainant’s evidence and differed in other respects. [ 12 ] The witness said people were sitting in the living room. Some people left to buy alcohol. The witness denied consuming any alcohol. The complainant was drinking beer and got so drunk she became sick. Another female at the party went with her to the bathroom where she was vomiting. [ 13 ] From the bathroom, the witness said the complainant went to a bedroom. She did not know if there was anyone else in the bedroom.

Others at the party encouraged the witness to check on the complainant. She did so and fell asleep in the roommate’s bed with the complainant. She woke up when the complainant left the bedroom at about 4:00 a.m. She does not know if the complainant went to another bedroom or the living room. The witness went back to sleep. Another male at the party came into the bedroom to sleep there after the complainant left. [ 14 ] The witness did not see the complainant again when she woke up at 6:00 to 7:00 a.m.

She did not hear the complainant ask for a ride home but she understood the accused drove her home. [ 15 ] The witness said there were three men in the apartment at the relevant time. One was taller and skinnier than the accused. The other was of similar build to the accused. [ 16 ] The witness testified she heard the accused telling other people in the living room that he had “ something ” with the complainant. She understood him to be saying he had sex with the complainant. She was sitting on the couch when he was talking about this with the group. She does not remember what time this happened.

It was the same morning and the complainant was no longer there. [ 17 ] The witness could not remember what words the accused used. When challenged in cross-examination, she denied being confused about what the accused said.

When asked if it was possible the conversation she overheard was actually about the accused expressing concern over minors having been in the apartment consuming alcohol, she said she really did not remember; that he probably did say something like that; and that many people were talking. [ 18 ] The witness agreed she did not provide police details about what the accused said because she did not remember the words he said. The accused was “ really drunk ”.

She said she saw him drinking throughout the time they were at the residence. [ 19 ] The witness admitted she is mad at the complainant for dragging her into this and for blaming “ these guys ” when “ she wanted to have sex with them ”. ANALYSIS [ 20 ] The investigating officer, Constable James, provided straightforward reliable evidence, which I accept without hesitation. [ 21 ] I have concerns about the reliability of evidence provided by both the complainant and the witness. [ 22 ] The complainant consumed alcohol to the point of intoxication and she concedes her memory of the incident is deficient.

This was further evident from the gaps and lack of detail in her version of events. She was not a practiced drinker and ingested so much she was vomiting prior to the assault. Her account lacked many details including how she got from the living room to the bedroom, how the sexual assault began, and how it ended.

Intoxication need not be fatal to the credibility of a witness but in this case, it is a red flag in terms of the reliability of her perception and recall of the event. [ 23 ] Compounding the concern about intoxication and impaired recall, is the delay between the incident and the time of her statement to police. I draw no negative inference from a delay in reporting but in terms of memory of the incident, it does not help that her recall was not recorded until months later. [ 24 ] The complainant augmented her description of the sexual assault in court from what she detailed in her police statement.

For the first time in court, she disclosed the perpetrator’s attempt at anal penetration. Typically, one expects the complainant’s recollection of an incident will be better close in time to the incident than many months later. However, there can be reasonable explanations for a witness recalling or reporting details in court that are not included in a prior statement. Here, the complainant testified two and a half years after the incident and counsel elicited no explanation for the amplification. [ 25 ] The complainant’s version of events does not match the witness’ narrative in some material respects.

The complainant said the witness’ brother was part of the group at the apartment that night. The witness testified her brother was at the apartment for the gathering on December 22 but not on December 25. This raises a concern about whether the complainant is confusing the details from the two events. [ 26 ] The complainant made no mention of sleeping in one of the bedrooms with the witness. She said she was in the living room, then in the bathroom vomiting, and then everyone went outside to smoke leaving her and the accused in the living room alone together following which they went to his bedroom.

It is possible the sexual assault occurred after the complainant woke up and left the bedroom

where the witness continued to sleep. The witness’ version of events does not negate the possibility of the sexual assault occurring but the complainant’s lack of recall of that segment of the evening is concerning in terms of the trustworthiness of her memory of the event. [ 27 ] I am particularly concerned about the reliability of the complainant’s identification of the accused as perpetrator.

In cross- examination, defence counsel suggested to the complainant that her identification of the accused is premised on his physique; that she believed it was the accused because the perpetrator was “ kind of heavy set” . The complainant agreed with that suggestion. Defence counsel further suggested that she was so drunk, she may be mistaken in her identification of the accused. She paused to think before answering “ yes” .

These concessions by the complainant were devastating to the crown’s case given the onerous burden of proving identification beyond any reasonable doubt. [ 28 ] The crown points to the witness’ evidence about an incriminating admission by the accused, to rehabilitate its case on the issue of identification. The crown argues the witness, mad at the complainant for dragging her into this case and skeptical about the merits of a sexual assault claim, has no interest in helping the complainant. This bolsters her credibility in terms of her evidence on this point. I tend to agree.

In addition, I found the witness persuasive in the sense that she appeared to have a genuine subjective belief that the accused admitted sexual activity with the complainant. [ 29 ] It is difficult, however, to attach any weight to this evidence when the witness is unable to identify the phrasing or any of the words used by the accused. She could not even say that he used the word “ sex ” but rather said he used a similar word without identifying the word. Counsel did not elicit this in evidence but I wonder if the conversation took place in Spanish and if that complicated the witness’ evidence on this issue.

The witness downgraded the reliability of her evidence indicating that that the event happened a long time ago; she really did not remember what was said, and that there were others talking simultaneously. I am unable to assess objectively the witness’s belief the accused admitted sexual activity with the complainant. [ 30 ] I also have some general concerns with the reliability of the witness’s evidence overall. It was clear she did not want to be in court. The events happened over two and a half years ago.

Unlike the complainant, she does not appear to have any personal or particular reason the events of that night would stand out and she was not asked to recall and report the details of the evening until months later. The witness was affable but her responses were sometimes flippant and often imprecise. DECISION [ 31 ] What happened to the complainant on December 25, 2019 is terrible. I am very suspicious the accused sexually abused the intoxicated fifteen-year-old complainant.

Nevertheless, the available evidence falls short of satisfying the onerous threshold of proof beyond a reasonable doubt and I must acquit the accused. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta