R. v. H.J., 2018 BCPC 410

Citation: R. v. H.J. 2018 BCPC 410 Date: 20181024 File No: 80431-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. H.J. PUBLICATION BAN pursuant to

Section 486.4 of the Criminal Code of Canada DECISION AND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: Scott Wright Counsel for the Defendant: David Milburn Place of Hearing: New Westminster , B.C. Dates of Hearing: September 26, 27, 28 and October 10, 2018 Date of Judgment: October 24, 2018

A Corrigendum was released by the Court on May 23, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] H.J. is charged with the unlawful confinement and sexual assault of I.W. [ 2 ] This charge arises in the context of the only meeting between the parties at the apartment of H.J. following a number of months of online communication. [ 3 ] I.W. alleges that H.J., by threats and conduct, caused her to believe that she was not free to leave his apartment, at least until she submitted to certain sexual acts.

She further alleges that she did not freely consent to the sexual acts that occurred. [ 4 ] H.J. says that there were no such threats or conduct and that I.W. was free to leave his apartment at any time. He further says that, except for a single act, she consented to all of the sexual contact that occurred. That single act was ejaculation in her mouth during fellatio, which he says was an “accident”. [ 5 ] In order for me to be satisfied that I.W. was unlawfully confined, the Crown must prove beyond a reasonable doubt that I.W. was not free to leave.

In order for me to be satisfied that there was a sexual assault, the Crown must prove beyond a reasonable doubt that she did not freely consent to the sexual acts. Since the parties tell, in large part, opposing versions of what occurred, the issue is that of credibility and gives rise to the R. v. W. (D.) [1991] 1 S.C.R. (“R. v. W.D.”) analysis. [ 6 ] However, the parties agree that the ejaculation during fellatio was not consented to, such that the Crown must prove that this was an intentional act, as opposed to an “accident” as alleged by H.J.

EVIDENCE Online communication [ 7 ] The parties “met” online initially. Both parties are from China and communicated in Mandarin. Except for an initial introductory contact period on another text communication site called “Tan Tan” as early as December 2016 or January, 2017, their communication was on “WeChat”.

The parties agreed that the relevant “WeChat” communication was between March 25 and April 13, 2017, which was recorded on I.W.’s phone, photographed and translated into English, so as to be available for my consideration. [ 8 ] Those texts often involved long conversations into the wee hours of the morning and quickly revealed H.J.’s clear wish to have it become a sexual relationship. I find that he was the aggressor in terms of referring to sex and then making his wish to have sex with I.W. very clear.

I.W. did not reciprocate directly that she also wanted that sexual relationship in those messages. [ 9 ] However, I.W. could have blocked H.J. or simply not responded to him at any time.

Over time and following his ongoing prompting, she shared some sexually revealing information, including her sexual relations with another man, the number of times she had an orgasm with him, her “likes” in terms of sex, and her prowess. [ 10 ] I also found that she sent some pictures of herself to H.J., including one in which she is wearing only her panties and bra, a quadrant of photographs of her laying forward in a thin-stringed top revealing the cleavage of her breasts (and a mouse or cat make up), a “selfie” in front of a mirror in an athletic workout outfit, and a picture of her buttocks in underpants from behind. [ 11 ] In the end, I.W. made the decision to finally come to H.J.’s apartment in New Westminster on April 13, 2017.

It is what occurred during that single meeting that is at issue. April 13, 2017 [ 12 ] The parties agree on certain things occurring at the apartment on April13, 2017, but not the terms upon which those things occurred. [ 13 ] They agree that H.J. met I.W. downstairs near the Skytrain station and proceeded up the elevator to the apartment. At some point soon after, they went to the living room and sat on the sofa and there was some talking during which H.J. went on the balcony to smoke and I.W. used her cell phone. He proposed they both try a nitrogen gas source for assumedly a brief “high”.

He had some contact with her initially on the sofa, following which they went to the bedroom. There was digital penetration of her vagina by him, but she told him she had a yeast infection and couldn’t have intercourse. She performed fellatio and told him a number of times not to ejaculate in her mouth. However he indeed ejaculated in her mouth and she ran off to the bathroom, before returning to the bedroom and leaving soon after. He escorted her downstairs.

I.W. - direct testimony [ 14 ] Those areas of agreement aside, I.W. maintained that she did not feel free to leave and only consented to sex based on threats and conduct by H.J. [ 15 ] When I.W. arrived to H.J.’s apartment on April 13, 2017, she says that he “sort of” guided her in when she initially hesitated at the apartment door. After entering, he pushed her up against the wall inside the apartment before saying he was “kidding”. They then went to the sofa and sat and talked, and he smoked on the balcony, which went on for about 20 minutes. Then, she said, he became aggressive.

He took her cell phone and told her he wanted to “fuck her”, that he pressed her down on the sofa and when she screamed, he

put his hand over her mouth and, at some point, on her throat. She also says he asked her to take off her clothes and told her she couldn’t leave or go home until she did so. Further, if she didn’t do what she was told, he said he’d lock her in there. She says she took off her sweater because she was afraid. He massaged her chest and unclasped her bra at the back, despite her cries and attempts to push him away. [ 16 ] Then she says he asked her to go to the bedroom, and when she protested he lifted her up and guided her there. She believed she had to do so, or wouldn’t be allowed to leave.

She went to the bed and her bra and pants were off, but she couldn’t remember if she took off them off. He asked her to open her legs, but she said she didn’t want to. He threatened to put two fingers in her vagina if she didn’t, which she says he proceeded to do for a little over 10 seconds. She says he was rough and she was crying and asked: “Why did you do that to me?” He replied: “I just want to hump you”. [ 17 ] After that, he then asked to have intercourse, but she told him that she had a yeast infection, such that he asked her to give him a “blow job”, for 10 minutes.

Despite saying she didn’t really know how, she did so. She made it clear to him several times that he was not to ejaculate in her mouth. [ 18 ] Despite that, he indeed ejaculated in her mouth, following which she ran off to the bathroom to expel the ejaculate, before returning to the bedroom. She got her cell phone and clothes from him, which she thinks came from the living room. She then dressed, kissed him at his request because she felt she had to, and left the suite, with him accompanying her to the parking level, where she had entered.

She then left to return to the Skytrain and home. [ 19 ] She reported the incident to the police, she believed, 4-5 days later. [ 20 ] When asked why she decided to meet H.J. on April 13, 2017, she said that it was because he kept asking her and so it was hard for her to refuse. I.W. - cross examination -online communication [ 21 ] In cross examination, I.W. was asked about the online “WeChat” communication and said she believed that H.J. was looking for a “fuck buddy”. She said she was not interested in sex with him.

When asked about why she continued to have contact with H.J., she said that she was “just killing time”. She denied she was at any time “flirting” with H.J. [ 22 ] That included this communication on March 26, 2017: I.W.: “So why exactly do you wanna fuck me H.J.: I think you’ll be awesome in bed I.W.: I am Hahaha [ 23 ] I.W. said this because it was “simply a fact”.

She said it was not flirting because that’s how she would speak to her boyfriend. [ 24 ] And it also included, later on the same day, her comments in relation to the effects of marijuana: “I.W.: I always feel weak every time after smoking (ph) weed H.J.: after smoking weed and it feels so awesome I.W.: Then I just really want other people to keep touching me Even I think that’s pretty perverted But it feels really good” [ 25 ] And then in relation to a man she’d been with the night before, there were these comments by I.W. to H.J. on March 29, 2017: “H.J.: How many times did you do it last night

I.W. : 9 H.J. : 9 times in one night? He ejaculated so fast… I.W. : He didn’t ejaculate Just ejaculated 3 times …. H.J.: Was your orgasm fast I.W.: Like after the orgasm, and then I had goosebumps all over my body H.J.: How many orgasms did you have last night I.W.: Every time So if there’s no orgasm what does sex feel like H.J.: Do you like it rough Like sticking it in you so hard No orgasm…I don’t know I.W.: I like all of it H.J.: Did you give him a blow job Licked his cock I.W.: Yeah Just him H.J.: You didn’t lick other people? I.W.: I only did it with him H.J.: Did he lick your pussy I.W.: Don’t want him to lick Hahaha

H.J. : Hahahaha Do you have a lot of pubic hair I.W.: I would shave it H.J.: A lot of fluid? I.W.: Yeah H.J.: Where are you most sensitive in your body I.W.: All of it “ -pictures [ 26 ] Also put to her in cross were the four pictures which, it was suggested, she forwarded to H.J. The response to that suggestion was equivocal, at one point admitting that she forwarded the pictures and then later saying she didn’t remember doing so.

Re- examination left her equally equivocal, saying she “may have” forwarded the four pictures. -April 13, 2017 [ 27 ] Turning to April 13, 2017, it was put to her that when they first met at the area outside the Skytrain, and when she suggested she was “afraid”, in amongst several coffee shops and restaurants she could have suggested they simply go have coffee, rather than immediately go up to his apartment. She said she “didn’t think of that” at that time, or when she felt hesitant at the apartment door. [ 28 ] Other details put to her in cross included that she was offered some water and slippers.

She said she didn’t recall. She agreed that it’s possible that they hugged before going into the living room. She agreed that she told H.J. she was seeing someone else on a double date at 9:00 p.m. that night, but she said that was for the purpose of wanting to leave. She also admitted that she may have viewed H.J.’s Ipad for the purposes of picking out a movie, and had some recall putting it back down on the table, but wasn’t certain. She generally denied they watched a movie for a short time in the bedroom, although at some point said she only thinks they didn’t.

She denied that at some point H.J. said he wanted to make love to her and asked her if she would. In turn she denied that in response she said: “What do you think? I am here.” [ 29 ] She agreed that she told H.J. 4 or 5 times that he was not to ejaculate in her mouth, but that he did so.

She denied that the ejaculation in her mouth was the impetus for her having gone to the police and made what was suggested to be otherwise a false allegation. [ 30 ] I.W. agreed that she was at the apartment for more than an hour and a half. [ 31 ] Otherwise she disagreed that they had consensual sex and maintained that H.J. was both physically forceful and threatening in his words and manner. H.J. - direct testimony [ 32 ] H.J. admits that he wanted to have sex with I.W. and that he clearly stated that in their “WeChat” communication.

He says that although I.W. did not offer that same view directly, she did share some sexually revealing information after some time and could have stopped communication with him at any time. He says that I.W. also sent some sexually revealing pictures of herself and he produced four pictures for the court, even though he had previously acknowledged the “WeChat” records from I.W.’s phone were complete and did not include those pictures.

He showed portions of the “WeChat” records that he says referred to pictures being forwarded and then “recalled”, such that the pictures themselves would not then be part of those records. [ 33 ] He says that I.W. attended at his apartment and everything that followed was consensual between the parties, except that he accidentally ejaculated in I.W.’s mouth during fellatio, which he acknowledged I.W. had specifically made clear he was not to do. [ 34 ] He says that there was no forcing of I.W. at the apartment door or a push against the wall, although there was a mutual hug inside.

He says that he actually offered her some water and slippers, and that they sat on the couch, and he did invite her to try the nitrogen capsule. He had the balcony door open as he proceeded to smoke outside while talking to I.W. He says they talked extensively about her boyfriend and his failure to show her any attention. He agrees she was using her cell phone and he questioned her about that, as it related to a later meeting she had scheduled with another man, which he understood to be a meeting for sex.

He says he did not take the phone away and did not threaten her in any way, including not allowing her to leave until she had sex with him. [ 35 ] He says that when he asked her about indulging herself and if she’d have sex with him, she said: “What do you think? I am

here”. [ 36 ] He says that he sat beside her and they began to have what he says was consensual sexual contact, including unclasping her bra or undergarment, and that at some point he assisted her, at her request, to take off her top. He says they went together to the bedroom, recognizing that the living room was cold from the open door. He says he actually suggested a movie, which he says was to get them further in the mood, but she couldn’t find any on his Ipad, and he then put on some sort of horror movie. That was only briefly viewed and they then proceeded to what he says was consensual sex.

He says that she took off her clothes and that he indeed digitally penetrated her with a single finger briefly. He agrees that she told him she had a yeast infection but that she said she could give him a “blow job”, to which he agreed. [ 37 ] He also agreed that she told him that he was not to ejaculate in her mouth. However, he says that he did so, by “accident”. He said he started to have a feeling, but lost control and accidentally ejaculated into I.W.’s mouth. She jumped up and into the washroom, but he says that he apologized to her.

H.J. - cross examination [ 38 ] H.J. readily admitted that he wanted to have sex with I.W. and that he pursued her for that purpose through the “WeChat” communication. He believed that her “WeChat” communication and attendance at his apartment meant that she was “half and half” towards her agreement to have sex with him. [ 39 ] H.J. stood by his version of events, despite the efforts of the Crown to suggest that he was not telling the truth about what occurred in his apartment on April 13, 2017.

He denied at any time using force or threats towards I.W. and that everything was consented to by her, except the ejaculation into her mouth. He maintained that they had both considered watching a movie and briefly did so, despite the suggestion by the Crown that he would not have put on a horror movie if steps had already been taken towards consensual sex. H.J. said it was still part of establishing the mood for both parties. [ 40 ] As for the ejaculation into I.W.’s mouth, he maintained that was an “accident” as a result of being excited and having a momentary loss of control.

LAW Consent [ 41 ] The offence of sexual assault is made out when there is sexual touching that amounts to a violation of the person’s sexual integrity and no consent has been given for that touching. Pursuant to

section 273.1 and 265(3) of the Criminal Code , consent must be a voluntary agreement to take

part in the sexual activity, and cannot be obtained by the application of force, or by reason of threats or fear. [ 42 ] This is not a case of a possible mistaken belief. If I accept the evidence of I.W., then there could be no mistaken belief in consent. If I accept the evidence of H.J., he had voluntary agreement through the words and conduct of I.W. [ 43 ] Therefore, this case comes down to credibility. Credibility [ 44 ] The seminal decision of R. v. W.D. guides the approach to be used when a case comes down to two opposing versions of events and little else to independently distinguish those versions. That approach, as applied to this case, is as follows:

(1) If I in fact believe what H.J. tells me as to what took place in his apartment on April 13, 2017, then I must acquit him;

(2) Even if I don’t necessarily believe him, if his evidence raises a reasonable doubt in my mind, then I must still acquit him;

(3) Even if H.J.’s evidence doesn’t raise a reasonable doubt in my mind, then I must decide if, on all of the evidence I do accept, the Crown has proven the offence beyond a reasonable doubt. If not, then I must also acquit him. [ 45 ] That approach assists with what the court must do once credibility is determined, but does not assist with how to assess credibility. However there is also guidance in case authority for that issue. Assessing Credibility [ 46 ] In R. v. Parent, [2000] B.C.J. No. 2772 , Judge A.E.

Rounthwaite addresses the issue of assessing credibility and says as follows: [ 4 ] In assessing credibility, courts have recognized a number of factors as helpful. [ 5 ] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"?

6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessing an accused's testimony. 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [ 47 ] I adopt those non-exhaustive guiding factors in my assessment of the evidence in this case. ANALYSIS [ 48 ] Before turning to the evidence of H.J., it is appropriate to examine the evidence of I.W., since the Crown relies on that evidence to satisfy its’ onus to prove the offences beyond a reasonable doubt.

I.W.’s credibility [ 49 ] I.W. was cross examined extensively on the issue of her intentions when she responded in the sexually revealing manner in the “WeChat” communication, and when she attended H.J.’s apartment on April 13, 2017. [ 50 ] To be very clear, the intentions of I.W. in regard to both the “WeChat” communication and the attendance at the apartment are of limited relevance to the ultimate issue to be decided here. That is because it is incumbent on the parties to any sexual contact to receive the consent of the other party at every stage of that contact.

Therefore, even if I.W. attended H.J.’s apartment with the intention of having sex with him (which I need not find), it was necessary for him to be sure that she consented to all sexual contact as it took place in that apartment. [ 51 ] Having said that, the testimony of each of them is critical in order to assess their credibility as to what occurred in the apartment. That testimony includes I.W.’s response to questions related to the purpose of the sexually revealing online communication and her reason for coming to the apartment.

In that regard, I found that testimony troubling. [ 52 ] Firstly, her response to that portion of the “WeChat” communication that she was just “killing time” was not, in my view, reasonable or believable. She may not agree that amounted to “flirting” as put to her by the defence, particularly when the imperfections of a translation from Mandarin may not offer a fair description; but sharing such sexually explicit information was surely some effort to engage with him. [ 53 ] In turn, I.W.’s explanation for coming to the apartment because H.J. was simply so insistent was, in my view, not reasonable or believable.

It was equally unbelievable that she simply didn’t think to suggest a coffee upon their first meeting, rather than proceeding directly to the apartment. [ 54 ] Once again, it is not engaging with him in the text communication, or the decision to come directly to his apartment, that is relevant to my credibility assessment, but the nature of the explanation that she gives for doing so. [ 55 ] I also found that, for some issues, I.W. was unable to seemingly remember fairly significant events related to April 13, 2017.

In particular, I.W. admits to having her pants and undergarments off when she was in the bedroom, but doesn’t recall when or how that occurred. [ 56 ] She also failed to mention in her direct testimony some details she later agreed in cross examination as true or possibly true, including that she may have been offered water and given slippers, that there may have been a hug soon after entering the suite, that there was a discussion about her boyfriend and his lack of attention towards her, as well as the consideration of a movie and whether a movie was indeed briefly viewed. [ 57 ] Her testimony was also inconsistent on the issue of the sending of the pictures.

I found on all of the evidence, including the portions of the “WeChat” communication that refers to pictures being recalled, that the pictures were indeed sent by I.W. However, even if I did not make that finding, I would have found her evidence inconsistent on that issue. [ 58 ] Finally, I also consider that when H.J. ejaculated into her mouth during fellatio, I.W. may have been angry and then had a motive to lie about other events that occurred that night, even though I do not conclude that she did so. [ 59 ] In the end, while I do not reject I.W.’s testimony in its entirety, I am somewhat troubled by it.

H.J.’s credibility [ 60 ] In short, I found no reason to reject H.J.’s evidence, even if I am not lifted to the level of believing that he was telling me the truth as to what actually happened on April 13, 2017.

I reject the Crown’s argument, which seemed to be based on the apparent contrast with the version of I.W., that H.J.’s version of consensual sex (the ejaculation aside) was incapable of belief or even unlikely to have occurred. [ 61 ] Indeed his version of a slower paced interaction that included extensive conversation, and additional foreplay, much of which was confirmed or deemed possible in the cross examination of I.W., was more consistent with the evidence that she was in the apartment for an hour and a half, than it was with her version of a rather brief interaction.

The ejaculation [ 62 ] The ejaculation as a sexual assault does not depend on I.W.’s credibility, since her non-consent, and H.J.’s knowledge of that non-consent, was admitted.

[ 63 ] H.J. said the ejaculation was an “accident”, which goes to the mens rea of the offence of sexual assault. As stated in R. v Kuryluk 2002 NSSC 6 (an ejaculation during intercourse case), ejaculation must be an intentional application of force, making “accident” insufficient to satisfy that necessary intent. [ 64 ] It was clear that the Crown’s theory of the case was based on a rejection of H.J.’s evidence and an acceptance of I.W.’s evidence regarding threats and physical force resulting in I.W.’s confinement and non-consensual sex.

As a result, H.J. was not extensively examined or cross examined on the issue of “accident” regarding the ejaculation. [ 65 ] It seems to me that ejaculation during fellatio (or intercourse) may result from “accident”. But ejaculation is not an autonomic response, even if its arrival may come on suddenly and with limited warning. That warning should he heeded where there is no clear consent to ejaculate into the mouth, not just where, as here, there was clear non-consent.

Heeding that warning would require a positive action, to either communicate its impending arrival or remove the penis from the mouth (or vagina). [ 66 ] Although a failure to do either of those things at the time, or even after the arrival of the ejaculate, may suggest the mens rea is established, I am unable to conclude beyond a reasonable doubt that is the case here. There may indeed be differences between individuals and their capacity to receive and respond to that warning.

I would require further examination of H.J. on that issue. [ 67 ] Moreover, this case, like that of R. v Terkelsen 2016 ONCJ 702 (at paragraph 124 ), would have likely required a discreet count on the information, or otherwise some particularization so as to identify the ejaculation as the basis for the sexual assault. CONCLUSION [ 68 ] In short, I am left with a reasonable doubt based on both the testimony of I.W. and H.J. in regard to both the offence of unlawful confinement and sexual assault. [ 69 ] H.J. is acquitted of both charges. ____________________________ D.

SUDEYKO Provincial Court Judge CORRIGENDUM – Released on May 23, 2019 In the Decision and Reasons for Judgment dated October 24, 2018, the following changes have been made: [1] the paragraphs after paragraph 62 are incorrectly numbered in that it reverts back to paragraphs 60, 61, 62, 63, 64, 65 and 66. [2] the correct paragraph numbering after paragraph 62 should in fact be, paragraphs 63, 64, 65, 66, 67, 68 and 69. _____________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia