R. v. J.F. and B.L., 2021 BCPC 226

Citation: R. v. J.F. and B.L. 2021 BCPC 226 Date: 20210203 File No: 65225-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J. D. F. and B. C. L. PUBLICATION BAN PURSUANT TO s.486.4 OF THE CRIMINAL CODE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: Lara Sarbit Counsel for the Defendants: David Walsoff for Freimark Michael Smith for Lewis Place of Hearing: North Vancouver , B.C. Dates of Hearing: Jul 27, 30, 31, 2018; Jan 15-17, 21, Mar 21 , 27, Apr 23 , 24 2019; Nov 6, 10, 13, 26, 2020 Date of Judgment: February 3, 2021

[ 1 ] The accused are charged with sexual assault of J.G. arising on June 18 th of 2017 in Squamish.

SUMMARY OF CIRCUMSTANCES AND ISSUES [ 2 ] The complainant, J.G. and the accused were in addiction and homeless. J.G. and J.F. were staying at a shelter. B.L. hung around the shelter but was banned from staying there. [ 3 ] On June 18 th the complainant and the accused were near the river where people went to drink. They had been there for some time and had been drinking. J.G. was waiting to meet her male friend, M.C., in that area. The accused suggested they go down to another spot. J.G. was not familiar with the area. Once there they sat down and there was sexual activity between J.G. and J.F.

B.L. was present but his specific involvement is unclear. [ 4 ] J.G. says she did not consent to any sexual activity with either accused. Both accused say she consented to the sexual activity with J.F. B.L. says he was present but was not involved in any sexual activity with the complainant. [ 5 ] The primary issue for determination is whether the Crown has proved beyond a reasonable doubt the complainant’s lack of communicated consent to the sexual activity. The Court must also determine the nature of the activity, in particular whether there was penile/vaginal contact by J.F.

REVIEW OF EVIDENCE Complainant [ 6 ] J.G. was 35 years old and an alcoholic in full addiction whose health was failing as a result. She was homeless and destitute. She met M.C. in hospital and they began to stay together. J.G. said that as a homeless female it is helpful to attach yourself to a male friend for protection. He was also struggling with addiction. [ 7 ] J.G. had been hospitalized a number of times in the weeks before the incident. I gather some admissions were due to consuming toxic amounts of alcohol.

She presented at the Whistler Clinic on the 15 th with injuries from a fall and was transported to Squamish. She was released from the Squamish General Hospital on the evening of the 16 th . She had been treated for pneumonia, an aspirated lung and a broken rib. She left hospital with a cane due to neuropathy in her legs. She testified she did not have any pain in or injury to her vaginal area prior to the incident in question. [ 8 ] She stayed the night of the 16 th in the shelter. On the 17 th she met up with M.C. and they spent the day together. J.G. stole a bottle of liquor and drank it.

On the 18 th they left the shelter as required at around 8:00 a.m. M.C. went off with another male as he wanted to smoke marijuana while J.G. wanted to steal some liquor. M.C. and J.G. planned to meet up later at the river. J.F. was present briefly but was not included in any plans. [ 9 ] J.G. met B.L. as she was walking. They went to a store where she shoplifted a 26 oz. bottle of vodka and they made their way down to a “hangout” by the river where there was a picnic table. They arrived around 11:00 a.m. and J.F. was there already. J.G. and B.L. were sharing the bottle of vodka.

J.F. was drinking beer and taking a few swigs of vodka. Sexualized banter occurred at the table but in a joking manner. By early afternoon, J.G. was anxious to meet up with M.C. as she had expected he would have been at the river much earlier. [ 10 ] The accused suggested to J.G. that they go down a path by the river to a spot where people went to do drugs. The spot is wooded on one side with a marina in behind that. The other side opens on to the footpath. There were tall grasses and some trees wrapping around the area. There is a large flat round of concrete in the middle (“the rock”).

The rock is set back from the path. [ 11 ] J.G. says they sat down facing the path with her in the middle. She said you could see some ways down the path so she would be able to see if M.C. arrived. They finished the bottle of vodka. The accused engaged in more sexualized comments which caused the complainant to joke that she was “too young for them”. [ 12 ] J.F. grabbed her by her head and forcefully kissed her. She pushed away from him and said “No.” B.L. put an open hand around her throat and pulled at her which she took as an attempt to kiss her.

She was pushed back and J.F. put his hands down into her pants and began to digitally penetrate her. This caused her significant pain. [ 13 ] She was then sat more upright and her head was forced on to J.F.’s penis. At this time J.F. was telling her to “suck harder” and to “make me hard” and referred to her as a “stupid bitch”. She said J.F. was not fully erect. [ 14 ] J.G. believes B.L. inserted a finger in her anus at this point but did not see him do so.

She also believes B.L. was pushing her head toward J.F.’s penis but again did not see him do this. [ 15 ] J.G. was then turned over and J.F. put his penis into her vagina which was painful. J.F. stopped after a short time. They both pulled up their pants and all three walked back to the picnic table. [ 16 ] As they were walking back J.G. texted M.C. at 2:02 p.m. saying “They just raped me help”. [ 17 ] J.G. said she was only mildly intoxicated by the almost half bottle of vodka she had consumed from around 11:00 a.m. to 1:30 p.m.

She said she was accustomed to consuming large amounts of alcohol. [ 18 ] She described that she froze during the assault. A woman walked by and she called for help but did not think she had been loud

enough. She was in fear after the assault and so simply followed the accused back to join the people at the table. M.C. arrived shortly after and J.G. told him what had happened and he insisted the police be called. [ 19 ] In the 911 call J.G. reports that the accused threatened to kill her if she didn’t do what they wanted. In her initial oral statement to the police she repeats this allegation and says that both J.F. and B.L. penetrated her vagina with their penises. She later confirmed that neither had used a condom. [ 20 ] J.G. gave an audio/video statement to the police in the late afternoon.

She clarified that the accused did not state any threats but she felt as though they would kill her if she didn’t do what they wanted. She also clarified that only J.F. put his penis in her vagina. She concluded that J.F. had ejaculated when she was at the police detachment as the crotch of her pants was damp and smelled bad. Her pants were seized and the officer noted the odour of urine in the crotch area. [ 21 ] She was taken to the hospital in Vancouver where she was examined by Dr. Klassen.

The doctor noted J.G. to have said they “both” put their fingers in her mouth in her clinical records but wrote that only B.L. did so in her report. J.G. said this never happened and she does not remember ever saying it did. She also testified that B.L. did not make contact with her mouth in what she believed to have been an attempt to kiss her and did not engage in any digital contact with her vagina. Again, Dr. Klassen’s report and notes differ in that the doctor did not refer to B.L. engaging in digital vaginal contact in her report.

J.G. cannot remember what she told the doctor and did not attempt to explain why the doctor recorded her making these statements. J.G. said that by the time the doctor examined her she was exhausted and was perhaps becoming confused. Accused – J.F. [ 22 ] J.F. testified. He was 51 at the time of the incident. He appears to be much older. He has been in chronic alcohol addiction for most of his adult life. He is now experiencing short term memory loss. He said that J.G. was with him drinking at a log at the river. He said she was “hitting on us” and initiated sexual contact with him.

She grabbed his head and forcefully kissed him. He also said she initiated the sexual activity by grabbing his crotch. They moved to the rock and began making out. J.G. initiated fellatio by undoing J.F.’s pants and taking out his penis. She did so because he was having difficulty becoming fully erect. J.G. put J.F.’s hand on her genitals and pushed his fingers inside. He said the sexual activity went on for at least 15 minutes. There was no penile/vaginal contact. [ 23 ] He initially testified they finished their drinks and went their separate ways.

J.F. then said the sexual contact ended because M.C. arrived and became angry at finding J.G. sexually involved with another male. He said he was positive this had occurred. Accused – B.L. [ 24 ] B.L. testified. He was 44 at the time of the incident. He appears to be much older. He also suffers from a chronic addiction to alcohol. He testified that he met up with J.G. while she was on her way to find a liquor store. He went with her to steal some liquor. After J.G. obtained a bottle they went to the picnic table. J.F. was already there.

J.G. shared the bottle of vodka with him. [ 25 ] He said there was some sexualized banter at the table and J.G. put her hand on his crotch but he brushed it away. He testified that the “whole time” they were at the table he had been “hoping she wouldn’t touch me” as he was not sexually interested in her. [ 26 ] He said the three of them left the table and walked away to the rock because there were too many people and the police might come and take their liquor. As soon as they got to the rock J.G. tried to kiss him but ended up engaged sexually with J.F.

B.L. says they were facing the bushes and the marina beyond while he was sitting on the other side of the rock facing the path. He looked over at one point and believed J.G. was performing fellatio. J.F. and J.G. finished and the three of them walked back to the picnic table. They were at the rock for 5 to 10 minutes at most. J.G. left the area. M.C. was not present. Other Witnesses [ 27 ] Dr. Klassen noted three injuries to the vaginal area of J.G. consisting of a 2 cm tear to the vaginal opening with a reddened area above it and a 1 cm tear above the clitoris.

She opined those injuries were recent and were consistent with trauma from forceful pulling or stretching of the tissue. J.G. also had a number of red/blue bruises which are consistent with what she said happened at the rock. She was described as being “anxious”. [ 28 ] DNA evidence was called by both the Crown and J.F. The findings of evidentiary value are that J.G.’s DNA was found on a penile swab from J.F. Neither J.F.’s nor B.L.’s DNA was found on any samples taken from J.G. There was no semen detected on any samples. [ 29 ] A number of police officers were called to describe the demeanour of the complainant.

She was upset and crying on scene but calm during the formal statement save for becoming emotional when describing the assault. At scene J.G. was apparently under the influence of alcohol but was not demonstrating any symptoms of impairment. Both B.L. and J.F. were described as being intoxicated but not grossly so. USE OF THE TEXT MESSAGE [ 30 ] The text message is a prior consistent statement and presumptively inadmissible. It was admitted under the “narrative as circumstantial evidence” exception for the limited and permissible purpose of showing the fact and timing of the complaint made.

It must not be used as corroboration of J.G.’s testimony: R. v. Langan 2019 BCCA 467 . However, it may be considered as part of the factual matrix bearing on the credibility of the complainant. CREDIBILITY OF THE COMPLAINANT [ 31 ] The inconsistencies in J.G.’s initial statements to 911 and the police on scene were clarified by her in her formal interview. Those clarifications resulted in less serious allegations against both accused. She provided a reasonable explanation for why she said

they threatened her. [ 32 ] I have carefully considered that she repeated her allegation that both accused had put their penises in her vagina while waiting in the police car at the scene. J.G. was emotionally distraught, in pain, fearful and somewhat intoxicated. Statements made by those who have been through a very recent trauma are frequently incomplete, confused or inaccurate.

J.G.’s experience was that both males were involved in what she described as a “rape” and I find this explains why she conflated their actions during the assault when initially questioned at the scene. [ 33 ] The inconsistencies in the complainant’s statements pertain only to the course of events and the specific actions of each accused during what would have been a terrifying and rapidly occurring assault. There are no inconsistencies relating to evidence of whether there was communicated consent.

The complainant was not impeached by any prior inconsistent statement from her formal statement. [ 34 ] I find the allegations recorded by Dr. Klassen that both accused put their fingers in her mouth or that B.L. engaged in digital/vaginal contact, were the result of a miscommunication or misunderstanding. I accept J.G.’s evidence that she would not knowingly have told Dr. Klassen these things happened when they had not. [ 35 ] The issue of J.G.’s belief that J.F. ejaculated was the focus of much of the DNA evidence.

Counsel for the accused submit that the evidence establishes J.F. did not ejaculate and thus the complainant has been impeached to the extent that, given the other inconsistencies, it is not safe to convict on her evidence. [ 36 ] J.G. never alleged that she felt J.F. ejaculate or saw him ejaculate.

Her conclusion, taken after the fact, was based on damp pants and a smell. [ 37 ] J.G.’s health situation at the time of the incident supports her evidence that she was not seeking out sexual activity and makes the evidence of the accused that she was the instigator much less probable. [ 38 ] The nature of the injuries suffered to her vagina are inconsistent with consensual sexual activity and some of the bruising observed is consistent with what she described as the course of events of the assault.

I have given little weight to the bruising as corroboration given she had fallen a few days previous. [ 39 ] J.G. immediately texted M.C. which rebuts any suggestion she needed to concoct a false allegation to assuage him. [ 40 ] There are no permissible inferences which can be drawn arising from J.G.’s not actively resisting, not repeating her already communicated lack of consent, not calling out loudly for help, the lack of tearing or damage to her clothes, her choice to return to the picnic table with the accused or her reluctance to call 911 or proceed with charges. [ 41 ] The immediate reporting of the details of her injuries similarly does not give rise to any permissible inference.

There is no evidence J.G. was given an opportunity to inspect her body for any injuries or that she was asked by the police to provide any detail about them. She was asked on scene if she needed an ambulance which she declined but did say she was “hurt really bad”. [ 42 ] J.G.’s evidence was fair, balanced, careful, candid and forthright. She readily admitted to stealing liquor and manipulating her family for money. She did not demonstrate any animosity toward the accused or attempt to paint them in a negative light.

In her testimony she candidly admitted that she could not recall what she told the police at the scene or her conversation with Dr. Klassen. Her evidence was internally consistent and her pattern of recollection was consistent with the circumstances. Her demeanor and the injuries noted are consistent with the assault she described. I find her to have been a truthful witness and that her evidence is reliable. CREDIBILITY OF J.F. [ 43 ] J.F. has a criminal record which accords with his addiction.

I have given it no weight in assessing his credibility. [ 44 ] J.F. asserted that he knew exactly what happened and was positive that the incident ended when M.C. arrived and found them engaged in sexual activity. He was unable to provide any conversation which occurred with J.G. relevant to the issue of consent. [ 45 ] J.F.’s evidence was replete with inconsistencies and improbabilities. In particular his evidence stands alone that he and J.G. were together at the log, began engaging in sexual activity there and moved to the rock.

His testimony as to the events of the morning and the time the incident occurred does not accord with any other evidence. His evidence that J.G. was slurring and having issues with her balance is contradicted by the police observations. J.F. speculated he could have consumed up to 10 high alcohol content beer that morning.

J.F. attempted to impugn J.G.’s evidence by repeatedly pointing out that she was drinking vodka straight from the bottle. [ 46 ] His pattern of recollection is inconsistent with a true memory in that he purported to recall certain events with absolute clarity but was unable to recall other related matters such as whether B.L. was present at all or followed them to the rock to “sit with them” while they engaged in sexual activity. [ 47 ] I find he concocted the presence of M.C. at the rock to provide an explanation for why J.G. would make a false complaint.

CREDIBILITY OF B.L. [ 48 ] B.L. has a criminal record which accords with his addiction. I have given it no weight in assessing his credibility. [ 49 ] B.L.’s explanation for moving to the rock is inconsistent with the three of them returning immediately to the picnic table to continue drinking after the incident. I find his comment about his concern J.G. would touch him sexually to be fabricated and I do not accept his evidence that she put her hand on his crotch under the table.

B.L. attempted to paint J.G. as having engaged in sexually provocative conversation throughout their time at the picnic table including “bragging” about having had sex with women. [ 50 ] There was no explanation for why he chose to remain sitting on the rock while J.G. and J.F. engaged in consensual sexual

activity. His account of what he saw and heard occurring was internally inconsistent. His evidence that he could see the top of her buttocks is inconsistent with being on the other side of the rock facing away. He also said he did not see J.F. touching J.G.’s genitalia which is inconsistent with J.F.’s evidence that he engaged in digital penetration for many minutes. [ 51 ] B.L. speculated that maybe her boyfriend had seen her engaged in the sexual activity with J.F.

However, B.L.’s evidence is that he was present throughout and did not see M.C. [ 52 ] B.L.’s evidence was characterized by inconsistencies, improbabilities and speculation. LAW [ 53 ] Counsel for the accused argues that the court should draw a negative inference because the Crown did not call M.C. or other witnesses who had been at the picnic table. Given the evidence of the complainant and the accused there is no apparent material evidence these witnesses would have been able to offer on the issue of consent to the sexual activity in issue.

J.G. said she had lost touch with him once she went into recovery in the fall of 2017. The Crown advised that M.C. was not located: R. v. Ellis 2013 ONCA 9 at paragraphs 43 to 49 . [ 54 ] I do not accede to the argument that the credibility of the complainant or of the accused is impacted in any way by the failure of the police or Crown to test all the samples or clothing seized for DNA. [ 55 ] In R. v. Bertacco 2020 BCSC 1275 the Court was dealing with a similar offence where the primary issue was consent and the only direct evidence came from the complainant and the accused.

The Court concisely summarized the law respecting sexual assault at paragraphs 54 to 58, credibility at paragraphs 59 and 60 and consent at paragraphs 60 and 61. In obiter the Court also referenced ongoing consent at paragraph 77 and the defense of mistaken but honest belief in consent at paragraphs 78 and 79. I agree with and adopt those reasons. FINDINGS OF FACT [ 56 ] I accept J.G.’s evidence as to how the assault occurred.

The evidence suggests that, based on the banter at the picnic table, one or both accused came to the conclusion that because J.G. was speaking about sexual matters she would engage in sex with them. I find the accused took her to the rock, a secluded location, for the purpose of engaging in sexual activities. I accept her evidence that they lured her to the rock by suggesting that M.C. might be there.

I accept that the accused sat down on either side of J.G. and both touched her for a sexual purpose. [ 57 ] At the time that sexual touching occurred I find J.G. communicated her lack of consent by saying “No” and pushing away. J.F. continued to touch her for a sexual purpose despite her communicating to him that she did not consent. I find that J.F. violently penetrated her vagina with his fingers using sufficient force to cause significant injury. I find J.F. grabbed J.G.’s head and forced it down onto his semi-erect penis and instructed her to make him erect and called her a stupid bitch.

I find that J.F. then pushed J.G. over onto her stomach and attempted to penetrate her vagina with his penis. I am unable to determine which of the accused inserted a finger in J.G.’s anus during the course of the assault. [ 58 ] I find that B.L. remained sitting very close by while J.F. perpetrated a sexual assault. I accept the complainant’s evidence that he was involved in further touching of her during the assault. [ 59 ] I do not accept the evidence of J.F. that J.G. instigated the sexual activity.

I do not accept the evidence of B.L. that J.G. willingly participated in the sexual activity with J.F. [ 60 ] Given the injuries to her vaginal area and the pain the penile contact caused her, I find it would have been very difficult for her to appreciate whether there was complete or partial penetration.

I also do not accept that J.G. would have applied sufficient force on J.F.’s fingers or hand to cause such serious injuries to her vagina. [ 61 ] I find as fact that M.C. was not present until after they had returned to the picnic table and would have had no way of knowing if J.G. had engaged in consensual sexual relations unless she told him. J.G. had intercepted him before he got to the picnic table and thus eliminated any opportunity for J.F. or B.L. to tell him. [ 62 ] I find the DNA evidence establishes that the conclusion drawn by J.G. that J.F. had ejaculated was incorrect.

I find that J.G. was honestly mistaken in coming to that conclusion. Her evidence that J.F. was unable to obtain a full erection and J.F.’s evidence that he cannot obtain a full erection when drinking supports that ejaculation did not occur. [ 63 ] J.F. testified that he was moving his fingers inside J.G.’s vagina for a significant period of time. Any DNA left would have come from sloughed off skin cells. His DNA was not detected in the vaginal swabs. Given that there was no ejaculation, any DNA from his penis would have been left in sloughed off skin cells from his penis.

It follows that no conclusion can be drawn as to whether penile contact with J.G.’s vagina did or did not occur based on J.F.’s DNA not being detected in the vaginal swabs. ANALYSIS [ 64 ] I do not believe or accept the evidence of either accused with respect to how the sexual activity with J.G. occurred. For the reasons stated above, the evidence of J.F. and B.L. regarding the events at the rock is not worthy of belief. To the contrary I find both accused fabricated some of their testimony in an attempt to raise a doubt about the issue of communicated consent.

The evidence which is inconsistent with guilt does not raise a reasonable doubt in my mind with respect to the issue of communicated consent. [ 65 ] I have carefully considered all of the evidence, including the inconsistencies in the complainant’s evidence and the testimony of each accused. I believe and accept the evidence of the complainant as to how the sexual activity occurred. I find the Crown has proven beyond a reasonable doubt that J.G. did not consent and communicated her lack of consent to the accused. There is no evidence that J.F.

took any reasonable steps in the circumstances to ascertain if J.G. was consenting. [ 66 ] With respect to B.L. I find it would be unsafe to convict him solely on the basis of J.G.’s evidence that she thought he reached out and put his hand on her neck to attempt to kiss her. J.G.’s evidence was also insufficiently detailed to allow the Court to conclude beyond a reasonable doubt that it was B.L. who put a finger in her anus or that he was forcing her head down to perform fellatio on J.F. I find B.L. not guilty. [ 67 ] With respect to J.F.

I find the actus reus and mens rea have been established beyond a reasonable doubt. I find J.F. guilty as charged. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia