R. v. Kanoa Date:, 2015 BCPC 124

Citation: R. v. Kanoa Date: 20150522 2015 BCPC 0124 File No: 80879-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAWRENCE KEKEALANI KANOA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: S. C. Domaradzki Counsel for the Defendant: D. Petri Place of Hearing: Abbotsford , B.C. Dates of Hearing: April 7, 8, 9, 2015 Date of Judgment: May 22, 2015

Introduction [ 1 ] The Accused Lawrence Kekealani Kanoa is charged that, on or about the 5 th day of December, 2013, at or near Mission, B.C., he did sexually assault the Complainant, contrary to section 271(1) of the Criminal Code . The Crown has elected to proceed by indictment and the Accused has elected trial in this court. [ 2 ] It is not in issue that on the alleged offence date, the Accused and the Complainant had sexual relations, and that, in the absence of consent, the Accused’s conduct on that occasion would constitute sexual assault of the Complainant within the meaning of the Criminal Code .

The Complainant states that she never consented to being touched in a sexual manner by the Accused, while the Accused states that either the Complainant did give her consent, or that he had the honest but mistaken belief that she was consenting to what took place that day. [ 3 ] At the trial of this matter, the Complainant testified as part of the case for the Crown, along with two police officers and a registered forensic nurse examiner. Portions of the Crown case were also admitted by the Accused, dispensing with the need to call two other witnesses. The Accused testified on his own behalf. Following is a

summary of the evidence heard at trial, the position of the parties, a

summary of the applicable law, and my reasons for the judgement rendered in this matter.

Summary of Evidence [ 4 ] The Accused is 63 years of age. The Complainant was never asked her age. She is an adult and appears to be younger than the Accused. Before the alleged offence date of December 5, 2013, the Complainant and the Accused knew who one another were, but had met only briefly. The Complainant testified that she had seen the Accused about four times previously: once at a church event, once on a bus and twice on the street. The Accused agrees that he had only met the Complainant on a few occasions before the day of the alleged offence.

He testified that they had met at a concert at Grace Station, and once on the street beside the Friendship Center in Mission. [ 5 ] On the day of the alleged offence, the two ran into one another at a Tim Horton’s restaurant close to where the Accused lived. The Complainant testified that sometime during the middle of the afternoon, she was coming from school at the adult education institution she was attending at the time. She recalls that the Accused sat at her table and the two talked for about five to ten minutes.

Both recall that the Accused was happy about a new place he had found as his residence and he was telling the Complainant about it. The Complainant testified that she was not feeling well and that the Accused had suggested that she come to his place for a cup of tea. Both agree that there was no mention of any sexual conduct occurring between the two of them in that discussion. [ 6 ] The Accused and Complainant walked to the Accused’s residence, which the Accused recalls as about a five to ten minute walk and the Complainant recalls it as about a five minute walk.

On the walk, the Complainant testified that she felt safe. She recalls that they stopped off at the Community Services office on the way and the Accused recalled this as well. The Accused testified that he told her that she could pick up a free “hygiene bag” from Community Services and that she did in fact pick one up from there.

At no time, either at Tim Horton’s or on the walk over to the Accused’s home was there any discussion or suggestion of any sexual activity taking place between the parties or of any sort of romantic relationship developing. [ 7 ] When they arrived at the Accused’s residence, the Complainant began to feel some unexplained anxiety. The two of them went inside the Accused’s residence, where a young man and a young woman were present. The Accused testified that this was his room-mate and his girlfriend, and that he introduced them to the Complainant.

The Accused’s bedroom was adjacent to the kitchen and the two went into the bedroom. The Accused testified that they did so because the living room was occupied. The Complainant asked where she should sit and was told to sit on the bed because a chair in the room had things piled on it. The Accused agreed that he told the Complainant to have a seat on the bed because of the clutter on the chair. [ 8 ] The Complainant testified that she was feeling dizzy and out of sorts. The Accused went to make her some tea. She recalls that he also made her some soup and toast as well, but she only had the tea.

The Accused sat next to the Complainant and showed her his DVD player. [ 9 ] The Complainant testified that after she drank her tea, the Accused “made a pass” at her. He began kissing her on her face, “hugging me, touching me and stuff.” She testified that she said “no”, adding “that’s not what I came for.” She testified that she said no “more than once”. She added “I’m not that kind of girl” and told him that she had just started seeing someone else and that she hadn’t had relations with anyone for a year. In spite of her protests, the Complainant says that the Accused persisted. She says that he wouldn’t stop.

The Complainant described what happened next as follows: “I was put into a laying down position. He undid my belt and my drawstring from my pants and I was wearing underwear, tights and pants, and all as one piece he pulled that down around my ankles.” [ 10 ] The Complainant testified that the Accused proceeded to perform oral sex on her, while he held her down with his right arm across her chest. She testified that there was never any prior discussion about this occurring. She testified that while this was occurring, the Accused inserted his finger into her anus.

The Complainant testified that she was very frightened. She said that she was “staring at the ceiling trying to feel nothing.” She said that the Accused then moved up, placing his body on top of hers. Her pants were still around her ankles at this time. She said that she was afraid that the Accused would “hurt me really bad” so she removed her pants, stating “I didn’t want to get hurt worse than I did.” The Accused proceeded to penetrate the Complainant vaginally. In her words, he did so “so fast and furiously that it hurt.” The Accused was not wearing a condom at the time.

She recalls that he ejaculated inside of her. The Complainant testified that there was no discussion between the two about this occurring either before or during the act. The Accused denied that the sexual intercourse was performed roughly, stating that it was performed “in a loving manner.”

[ 11 ] The Complainant testified that the last time she had told the Accused “no” was prior to him performing oral sex on her. After that she decided to block everything occurring around her and was “doing everything I could not to feel or be there.” She testified that at no time during the sexual acts did the Accused ask permission, or say anything at all. [ 12 ] The Accused’s version about how the sexual contact between him and the Complainant took place is significantly different in many respects.

In his examination-in-chief on the afternoon of April 8 th , he testified as follows: Accused: We started talking, and mentioned about I’m from Hawaii and so forth, and uh, one thing led to another, then we started cuddling, kissing and then one thing led to another… We started kissing, and cuddling, and then we lay back on my bed and she took off her pants, and I took off my t-shirt, then I performed oral sex on her… Mr. Petri: Now, you performed oral sex on her? Accused: Right. Mr. Petri: Now, when you were performing oral sex on her, did she say “don’t” or “stop”?

Accused: No [ 13 ] Crown Counsel then objected to leading questions being put to the witness on such a crucial piece of evidence. Defence counsel didn’t see this as a leading question. He went on to ask the Accused: Mr. Petri: While you were performing oral sex on her, what if anything did she say? Accused: She didn’t say anything. [ 14 ] The Accused testified that the oral sex lasted for about five minutes. After that he testified that he removed his shorts and had intercourse with the Complainant. The Accused was asked the following questions by his counsel: Mr.

Petri: Did you have any type of discussion with her or conversation about having sex before having intercourse? Accused: I can’t recall that. Mr. Petri: And when you had intercourse with her, how long did that last? Accused: I’m guessing probably about five to ten minutes, maybe. Mr. Petri: Okay and when this was happening, what if anything was she saying to you before having intercourse? So before you insert your penis, did you, where did you insert your penis? Let’s back up a little. Accused: In her vagina. Mr. Petri: Okay, and before you did that, what if anything did you guys, did she say anything to you?

Accused: No, she didn’t say anything, nothing. [ 15 ] Later in his examination-in-chief on April 8th, the Accused was asked again about what conversation he had with the Complainant leading up to the sexual contact. He gave the following evidence: Mr. Petri: At any point did you force [the Complainant] to engage in oral sex? Did you force her to have oral sex? Accused: No. Mr. Petri: Did you force her to have any sexual intercourse with you? Accused: No I didn’t. Mr. Petri: Um, did you take off [the Complainant’s] pants? Accused: No. Mr. Petri: Did [the Complainant] ever try to stop you from doing anything?

Accused: Physically, no. Mr. Petri: How about verbally? Did she say anything to you? Accused: No.

[ 16 ] Near the end of that day’s questioning of the Accused he was asked by his counsel the following question: Mr. Petri: From the time you had oral sex and then starting vaginal sex, did you say anything to her? Accused: No. [ 17 ] The examination-in-chief of the Accused appeared to be concluded on April 8 th just before 4:00 p.m. Counsel advised that he had no further questions for the Accused, but because the Crown did not wish to begin its cross-examination that late in the afternoon, examination-in-chief was not formally closed.

The following morning, April 9 th , the Accused was asked more questions by his counsel The Accused was asked once again about any prior discussions that he and the Complainant had prior to engaging in sexual contact. This time the Accused’s evidence was different from the previous day. He gave the following answers to his counsel: Mr. Petri: Now, can you tell the court, what if any signs did you or [the Complainant] give to show that you or her wanted to have sexual intercourse? Accused: I asked her. Mr. Petri: What did you ask her? Accused: Do you wanna make love? Mr. Petri: And what did she say?

Accused: She said yeah. Mr. Petri: Now, yesterday I asked you a question “what if any conversation did you have before having sex” and you said “none”, can you explain? Accused: I asked her a question, it wasn’t a conversation. Mr. Petri: And can you tell the court what if any signs did you or [the Complainant] give to show you or her wanted to have oral sex? Accused: Could you repeat that question again. Mr. Petri: What if any signs did you or [the Complainant] give to show you or her wanted to have oral sex? Accused: Uh, she pushed my head down. Mr. Petri: When you say pushed your head down, what do you mean?

Accused: Pushed it between my legs. [ 18 ] In cross-examination, the Accused gave the following answers to Crown Counsel: Ms. Domaradzki: Now yesterday when you were answering questions, you said that she said nothing before oral sex, correct? Accused: Other than agreeing to have sex. Ms. Domaradzki: I’m sorry? Accused: Other than agreeing to have sex, is that what you mean? The Court: Did you just say “I didn’t agree to have sex”? Accused: No, no, I didn’t. Mr.

Petri: I think he said “other than agreeing to have sex.” Accused: The question, I took it that she didn’t say anything before oral sex, but she did say “yeah”. Ms. Domaradzki: She said “yeah”. She said yeah to what? Accused: To having, uh, to making love. Ms. Domaradzki: What did you exactly say to her? Accused: I’m sorry. Ms. Domaradzki: What did you say to her? Accused: Uh, I proceeded on to making love with her. Ms. Domaradzki: What did you say to her?

Accused: I think, uh, wait, I can’t understand, uh, I don’t know what you’re trying to say there. Ms. Domaradzki: Before the oral sex, what do you say to [the Complainant]? Accused: I just proceeded to make love with her. Ms. Domaradzki: You just proceeded, you didn’t say anything? Accused: Well, I tell her, “Do you wanna make love?” Ms. Domaradzki: Okay so those are your exact words to her, “do you wanna make love”? Accused: “Do you wanna make love,” yes. Ms. Domaradzki: And she said what? Accused: Yes. Ms. Domaradzki: So yesterday when you said nothing was said, that was wrong? Accused: Yes.

I didn’t have a conversation with her about sex, I asked her a question. Ms. Domaradzki: But yesterday you were asked whether there was anything said. So that’s wrong, today you’re saying that there were words exchanged? Accused: Yeah, I just wanna clarify that, yeah. [ 19 ] It is interesting to note that when the Complainant was cross-examined, the suggestion of a discussion with the Accused about “making love” was never put to her directly. The scenario put to her differed from the version given by the Accused in his evidence.

In the scenario put to the Complainant in cross-examination, it was suggested that a discussion about having sex took place after the Accused had performed oral sex on the Complainant. The Complainant was asked the following questions and gave these answers during her cross-examination: Mr. Petri: And what ended up happening was that you and him started to kiss each other. Complainant: No. Mr. Petri: And that you and him began to cuddle. Complainant: No. Mr. Petri: Now, I’m going to suggest to you that you took off the bottom part of your clothes. Complainant: No. Mr.

Petri: And it was at that point in time where he took off his clothes, correct? Complainant: No. Mr. Petri: And it was at that point in time where he started to perform oral sex on you, correct? Complainant: Well it it’s a run-off of all your other questions, no. Mr. Petri: Okay, and then he performed oral sex on you for about five to ten minutes and then asked you about having sex. Complainant: No. Mr. Petri: And you said “yes”. Complainant: No. Mr. Petri: And it’s at that point in time that you guys were having sexual relations.

Complainant: No. [ 20 ] After the Accused completed having intercourse with the Complainant, he recalls that the two of them lay back on the bed and made small talk. The Complainant testified that after the Accused had ejaculated, he sat up and put on his shorts. She then sat up and put a blanket around herself. The Accused went into the bathroom and began to run a bath. She testified that she asked the Accused when the next bus was coming, but that the Accused kept telling her that she was going to spend the night there.

She didn’t give any response when he said that, other than to ask him when the next bus was coming. [ 21 ] The Complainant testified that the Accused asked her if she wanted to have a bath. He also testified that he decided to take a

bath after having sex, adding “or, her and I.” She testified that she told him no, but he told her “go have a bath.” The Accused says thatshe agreed and says that she got into the bath first. She recalls some kind of film on the water, but had no idea what it was. She says thathe told her to get into the bathtub and she followed his direction. She says that the Accused then took off his clothes and joined her in thebathtub. He agrees that he joined her in the tub. She recalls that he shaved his face and legs, but he says that he just shaved his face.

Sherecalls him putting some kind of shampoo or liquid soap in her hair and he recalls doing this as well. He also says that he scrubbed herback. She says that he was humming while he was doing this. The two of them stayed in the bathtub until he got out. She stayed in andused a hand-held shower to rinse herself off. She put on a towel, went back to the room, retrieved her clothes and got dressed while theAccused was in the kitchen making tea. [22] The Complainant testified that, later on, the Accused came into the bedroom, put a silver ring on her finger and said that shewas his now.

She also testified that he told her that she was going with him to Osoyoos to see his wife. He also put a bear claw necklaceon her as well. She told him that she wanted to go home, but he told her that there were no more buses. The Accused recalls bringing hersoup, and says that he asked the Complainant if she wanted to go to Hawaii with him. He says that he also asked her if she had apassport. He also agrees that he gave her a ring, because he wanted to have a relationship with her. He also says that he gave her anecklace as well. He denies that he had any conversation about taking her to meet his wife.

He testified that he is not married and doesnot have a wife in Osoyoos. [23] The Complainant recalls that just before she left, three other men arrived at the Accused’s home. They were smoking marijuanaand asked her if she wanted a puff. She agreed and took a puff. She then went back to retrieve the rest of her clothes and things. Shedidn’t see the Accused there, so she thought this would be an opportune time to make her escape. She testified that she was veryfrightened, stating “my heart was pounding.” She left the home and believes that someone followed her, but is unsure who it was.

Shewent to the library, and was able to telephone a friend to come and get her. The Accused says that he was in his bedroom tidying up andwas unaware that the Complainant had left. [24] The Complainant told her friend what had happened and her friend convinced her to call police that night. Constable LindaMacKay of the Mission Detachment of the Royal Canadian Mounted Police responded to the call and attended to take a statement fromthe Complainant. Constable MacKay took the Complainant to the Abbotsford Regional Hospital for a forensic exam.

Constable MacKaydescribed the Complainant’s demeanour as “very quiet, quite upset, she seemed to be a little bit in shock or trauma.” Later, closer to thetime of the examination, the Complainant was observed by Constable MacKay to be crying, shaking and very emotional. [25] Susan Short, a forensic nurse, testified that she performed a sexual assault examination of the Complainant early on themorning of December 6, 2013. The examination noted two vaginal tears and the presence of a white fluid inside the vagina. A swab wastaken of the fluid.

Analysis of the sample performed by Maxxam Analytics, a forensic laboratory, discovered the substance to be semencontaining the Accused’s DNA, with the probability of the semen belonging to another person unrelated to the Accused being one ineight hundred and twenty billion. [26] The Accused was arrested by Constable MacKay on February 12, 2014. He gave a statement to the Constable which wasrecorded and which is acknowledged by him (through his counsel) to have been voluntarily made.

In the course of the statement, theAccused made some rather strange statements and he attributes this to the fact that he was “off and on with my medication.” In his cross-examination, he gave the following answers to questions put to him by Crown Counsel: Ms. Domaradzki: And when you are with her that day, you have a good view of her, you know what she looks like? When you’re withher for those five, six hours on December 5th, you can see what she looks like, correct? Accused: Yes. Ms. Domaradzki: You know her name? Accused: Not at the moment, no. Ms. Domaradzki: At that time you didn’t know her name?

Accused: No. Ms. Domaradzki: You didn’t ask her for her name before you started having sexual relations with her? Accused: (Eleven second pause) Um, hmm? (Twenty second pause) I assumed that her name was, uh, Annette? [27] The Complainant’s name is not Annette. When Crown Counsel suggested that the Accused did in fact know the Complainant’sfirst name, he denied this. When the Accused spoke to the police, he told them that he had no memory of the Complainant. In cross-examination he explained that this was because he did not know the Complainant by her real first name.

The Accused testified that whenhe was questioned by Constable MacKay on February 12, 2014, he “was getting arrogant” with the officer. Even though ConstableMacKay tried to remind the Accused about the incident, including mentioning that the Accused and the Complainant had a bath, theAccused claimed that he did not recall the Complainant. He attributes this to being off of his medication and because he was gettingagitated. Later in the same statement however he makes the statement to Constable MacKay “she has a mental history” in reference tothe woman that the Constable was asking about. Applicable Law 1.

Elements of the Offence of Sexual Assault [28] The Supreme Court of Canada described the elements of the offence of sexual assault in R. v. Ewanchuk

(SCC), [1999] 1 S.C.R. 330. Justice Major wrote: 23. A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [29] In this case, it is not in issue that the contact between the Accused and the Complainant on the alleged offence date wastouching of a sexual nature.

The Complainant is clear in her testimony that the sexual contact was unwanted and non-consensual. TheAccused disputes this. In R. v. Ewanchuk, the court went on to discuss the meaning of consent within the context of the actus reus of anoffence. Justice Major stated, at paragraph 27 of the decision, that in defining the term “consent”, within the context of the actus reus, itis what is within the mind of the complainant that is determinative. He wrote: 27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault.

Some of thisconfusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotesactive behaviour… While this may be true in the general use of the word, for the purposes of determining the absence of consent as anelement of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concernedwith the complainant’s perspective.

The approach is purely subjective. (Emphasis added). [30] The reason for this is because the Criminal Code seeks to protect everyone’s personal security from any non-consensual contactor threats of force. The court in Ewanchuk went on to state that while the complainant’s testimony is the only source of direct evidenceas to his or her state of mind, credibility must still be assessed by the trier of fact, in light of all the evidence.

The court said (atparagraph 29): “It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubtagainst her assertion that she, in her mind, did not want the sexual touching to take place. If, however… the trial judge believes thecomplainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [31] In order to prove that an accused has the requisite mens rea of the offence of sexual assault, the Crown must prove, beyond areasonable doubt: 1.

That the accused intended to touch in a sexual manner; and 2. That the accused knew of, or was reckless or wilfully blind to, a lack of consent on the part of the person touched. 2. Consent [32] When a complainant states that he or she did not consent to being touched sexually, the court must approach the issue ofconsent in two stages. In the first stage, the question is one of credibility, and whether the court is satisfied beyond a reasonable doubtthat the complainant did not consent to the sexual contact. The accused’s perception of the complainant’s state of mind is not relevant atthis stage. (See R. v.

Ewaschuk, para. 30). [33] At the second stage, the court must decide whether the Crown has also proven beyond a reasonable doubt that the accused (a)knew that he did not have the complainant’s consent to touch the complainant sexually; or (

b) was reckless or wilfully blind as towhether or not the complainant was consenting to the act. [34] An accused is reckless, within this context, when he or she ought to have been concerned about whether or not consent waspresent, but takes the risk and proceeds without taking reasonable steps to determine if consent is present. Wilful blindness exists wherean accused is or ought to be suspicious, to a point where a reasonable person would see the need to make further inquiries, but hedeliberately chooses not to make those inquiries. [35] Consent is defined in

section 273.1 of the Criminal Code as “the voluntary agreement of the complainant to engage in thesexual activity in question.” But this definition is subject to other limitations set out in the Criminal Code, specifically in section 265(3)and

section 273.1(2). These sections set out a number of circumstances in which there is no consent obtained. Section 265(3) providesthat consent is not valid if it is obtained as the result of the application of force, as the result of threats or fear of the application of forceto the complainant or someone else, by fraud or by exercise of authority.

Section 271.3 (2) provides that consent is also not valid if it isgiven by someone other than the complainant, if the complainant is unable to consent, if it is obtained as a result of the abuse of aposition of trust or authority, or if the complainant expresses a lack of agreement to engage in the activity by words or conduct. It alsoprovides that consent that has been given can later be withdrawn by the complainant’s words or conduct. [36] In R. v. Hutchinson 2014 SCC 19 , [2014] SCJ No. 19; 1 S.C.R. 346, the Supreme Court of Canada held that definitionof consent set out in

section 273.1 of the Criminal Code (i.e. the voluntary agreement to the sexual activity in question) means that thecomplainant must subjectively agree to the specific physical act itself, its sexual nature, and the specific identity of the partner. In themajority judgement, the court stated: [54] We conclude that Farrar J.A. was correct to interpret the “sexual activity in question” in s. 273.1(1) to refer simply to the physicalsex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys). The complainant must agree to the specific

physical sex act. For example, as our colleagues correctly note, agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching. 3. Implied Consent [ 37 ] In R. v. Ewaschuk, the court held, at para. 31, that there is no such thing as “implied consent” in the context of sexual assault. Justice Major wrote: “It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option.

If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.” 4. Mistaken Belief in Consent [ 38 ] Sexual assault only becomes a crime in the absence of the complainant’s consent.

Accordingly, the defence of mistake of fact is available to an accused who honestly but mistakenly believes that he or she has the consent of the complainant to touch the complainant in a sexual manner. If an accused has such an honest, but mistaken belief in a state of facts which, if true would have rendered the accused’s conduct lawful, then he or she has a defence to the charge. [ 39 ] In R. v.

Ewaschuk , Justice Major made the following statement about the defence of an honest but mistaken belief in consent: 46 In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence.

The accused’s speculation as to what was going on in the complainant’s mind provides no defence. 47 For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions. [ 40 ]

Section 273.2 of the Criminal Code places certain limits on this defence, and removes the defence in the following cases: 1. Where the mistaken belief arises out of the accused’s self-induced intoxication, recklessness or willful blindness. 2. Where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. 5.

Summary of the Law Concerning Sexual Assault [ 41 ] To summarize the applicable law for the offence of sexual assault: 1. A conviction for sexual assault requires proof beyond reasonable doubt of two things: that the accused committed the actus reus and that he had the necessary mens rea . 2. The actus reus of assault is unwanted sexual touching. 3. The sexual touching must occur without the complainant’s consent. 4. The absence of consent is a necessary ingredient of both the actus reus and the mens rea . 5.

For the purpose of determining the absence of consent as part of proof of the actus reus , the actual state of mind of the complainant is determinative. If the trier of fact is satisfied that beyond a reasonable doubt that the complainant did not consent to being touched sexually, then the actus reus has been proven. 6.

The mens rea is the intention to sexually touch the complainant, knowing that the complainant is not consenting to being touched, or being reckless or wilfully blind to, a lack of consent, either by words or actions, from the complainant. 7. “Consent” means the voluntary agreement of the complainant to engage in the sexual activity in question. 8. The phrase “sexual activity in question” means the physical sex act itself (for example, kissing, petting, oral sex, intercourse, etc.) The complainant must agree to the specific physical sex act. 9. Consent cannot be implied. 10.

Consent is not valid if it is obtained as the result of the application of force, as the result of threats or fear of the application of force to the complainant or someone else, by fraud or by exercise of authority.

11. Consent is also not valid if it is given by someone other than the complainant, if the complainant is unable to consent, if it isobtained as a result of the abuse of a position of trust or authority, or if the complainant expresses a lack of agreement to engage in theactivity by words or conduct. Consent that has been given can later be withdrawn by the complainant’s words or conduct. 12. If an accused has an honest but mistaken belief that the complainant has given consent to the sexual touching, the accused may havea defence to a charge of sexual assault. 13.

Mistaken belief in consent cannot arise out of the accused’s self-induced intoxication, recklessness or willful blindness. 14. If an accused did not take reasonable steps to ascertain that the complainant was consenting, then the accused’s belief in consentcannot form the basis of a defence to a charge of sexual assault. Credibility [42] The evidence of the Complainant and that of the Accused are markedly different on a central issue in this case, that being thepresence or absence of the Complainant’s consent to the sexual activity that occurred.

The test in a criminal trial is not one of who Ibelieve, but whether or not the Crown has proven the offence beyond a reasonable doubt. I am required to consider whether, on the totalbody of evidence, viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. [43] Where there is conflicting evidence in a case such as this, the law requires me to instruct myself according to the followingdirections set out by the Supreme Court of Canada in R. v.

D.W. (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt. [44] In R. v.

C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Justice Wood gave the following furtheradvice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [45] There are a number of considerations which a court can apply when determining issues of credibility. Firstly, a court mayconsider evidence which pertains to the honesty and forthrightness of the witnesses.

Evidence of character, background or otherbehaviour that bears on a person's honesty may be considered, such as a criminal record for crimes of dishonesty, or other dishonestconduct proven, such as false statements made to police in the course of the investigation. [46] A court may also consider the demeanour of a witness while that witness gives testimony, but I concur with those who believedemeanour to be one of the least accurate barometers of credibility, especially when one factors in cultural, educational andsocioeconomic considerations. [47] The credibility of a witness may be assessed by its internal consistency, that is by the presence or absence of any contradictionwithin itself.

It may also be assessed by its external consistency, that is by the presence or absence of any contradiction with theremainder of the evidence. Position of the Parties (

a) The Crown [48] On behalf of the Crown, Ms. Domaradzki asserts that it has been proven beyond any reasonable doubt that the Complainant didnot consent to any sexual contact to her person by the Accused. This is so not only because the Complainant has testified to this (andshould be believed) but also because a contrary assertion does not accord with common sense. The Crown points out that theComplainant and the Accused had no prior relationship and knew one another only in passing before the incident that brings the partiesto this trial.

Both acknowledge that there was never any prior discussion that the Complainant was coming to the Accused’s home forsex, and nothing in the evidence suggests that after the brief discussion that the parties had before being in the Accused’s bedroom, theComplainant would suddenly agree to what subsequently occurred.

The Crown describes the Complainant as very forthright and candid,and notes that she made admissions against her own interest at times (for example admitting that she smoked marijuana on the allegedoffence date.) The Crown submits that any inconsistencies in her evidence are on collateral matters and should not form the basis of anyserious attack on her credibility. [49] Conversely, the Crown argues that the Accused’s evidence is full of contradictions, inconsistencies and absurdities. The drasticchange in his evidence from the first day to the second is especially glaring.

His sudden recollection that there was a sort of discussionabout consent the day after he had repeatedly testified that the Complainant “said nothing” is suspicious. His evidence that, on the onehand, he gave the Complainant a ring and a necklace, intending to begin a relationship with her, but that he didn’t know her name, ispreposterous. The Crown argues that the Accused did not take reasonable steps to ascertain that the Complainant was consenting to eachindividual sex act. Therefore he cannot be said to have an honest, but mistaken belief that his sexual contact with the Complainant was

consensual. (

b) The Defence [50] On behalf of the Accused, Mr. Petri states that reasonable doubt exists as to the Complainant’s credibility when she alleges thatthe sexual contact between the Accused and her was non-consensual. He points to a number of semantic inconsistencies between thestatements that she gave to police and her testimony in court.

For example, he points out that on one occasion she described the sexualintercourse as performed “roughly”, while on another she says it was “fast and furious.” On one occasion she says that the intercourselasted less than a minute, while on another she says that it lasted four or five minutes. On one occasion she said that she saw the nurse at2:30 a.m., while on another she said it was at 3:30 a.m. Mr. Petri listed several other similar inconsistencies of that nature.

He argues thatthe court should be especially troubled by the fact that the Complainant testified that injuries to her anus were noted by the forensicnurse, when the nurse’s evidence contradicts this and notes no such injury. [51] Mr. Petri asks for an inference to be drawn that the Complainant was under the influence of marijuana at the time and that herrecollection of the event cannot be trusted. He asserts that the Complainant’s credibility is the main issue. He argues that it would beunsafe to convict the Accused on the Complainant’s evidence. [52] Mr.

Petri argues that there is foundation for either the defence of consent or supporting an honest but mistaken belief on the partof the Accused that the sexual activity between the Complainant and him was consensual. He takes the position that the affirmativeanswer to the question “do you want to make love”, the absence of any physical resistance, the Complainant’s conduct in removing herown pants and staying to have a bath all add up to conduct that reasonably led the Accused to believe that he was proceeding with theconsent of the Complainant. [53] Finally, Mr.

Petri states that the differences in his client’s testimony over the course of the two days that he was giving evidenceare attributable to the Accused’s misunderstanding of the term “conversation” and his level of cognition generally. Analysis [54] It is not at issue in this case that on December 5, 2013, at a residence located in Mission, B.C., the Accused and theComplainant engaged in sexual conduct.

It is also acknowledged that it was the Accused who initiated this sexual conduct and that in theabsence of the consent of the Complainant, such conduct constitutes the sexual assault of the Complainant by the Accused. There aretwo issues before the court which must now be decided: 1. Has the Crown proven, beyond a reasonable doubt, that the Complainant did not consent to that sexual conduct? 2.

If so, has the Crown proven, beyond a reasonable doubt, that the Accused knew of, was reckless about, or was wilfully blind to a lackof consent on the part of the Complainant? [55] On the second of those two issues, although this raises the “defence” of mistake of fact, what it really amounts to is the absenceof the requisite mental element of the offence. The burden of proof does not shift to the Accused to show that he was operating under amistake of fact.

Rather, the burden of proof remains with the Crown to prove, beyond a reasonable doubt, that the Accused had therequisite state of mind (mens rea) required as an element of the offence. [56] The Accused maintains that he was not aware of any lack of consent, and in fact he honestly believed that the Complainant didconsent to the sexual activity which took place between the Complainant and him on the alleged offence date. In accordance with theSupreme Court of Canada’s directions in R. v.

W.D., the first stage of the analysis is to determine whether or not the Accused’s evidenceshould be accepted, and if so, if it provides him with a defence. [57] On the first day of his examination in chief, the Accused testified that he proceeded to have sex with the Complainant and, inhis words, “she didn’t say anything.” He also said that he could not recall “any type of discussion or conversation with her” about havingsexual intercourse.

Shortly thereafter, he reiterated “she didn’t say anything, nothing.” Later he answered “no” to the question “Howabout verbally, did she say anything to you?” He also answered “no” to the question “From the time you had oral sex and then starting vaginal sex, did you say anything to her?” At no point in the testimony he gave on April 8th did the Accused ever state that theComplainant expressed her consent to participate in sexual activity with him. [58] The following day, the Accused’s testimony was markedly different.

On the second day of his evidence, he was now allegingthat he had asked the Complainant “Do you wanna make love?” and her answer was “Yeah”. He also testified that the Complainantpushed his head down before he performed oral sex on her. It is significant that neither of these two circumstances came out in hisevidence on the first day, nor was the Complainant specifically asked about them. [59] It is also concerning that this particular question and answer were not put to the Complainant.

The failure to cross-examine on amatter that is significant to an important issue can properly be taken into account in assessing the credibility of a witness. R. v. Carter2005 BCCA 381; R. v. Paris (2000) (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.). [60] I am unable to accept the evidence of the Accused as credible for a number of reasons. Its internal inconsistency is especiallytroubling. For the Accused to testify on several occasions that nothing was said by the Complainant, only to suddenly recall a questionand answer exchange about “making love” the next morning, suggests that he is not being truthful.

His explanation that he did notmention this on the first day he gave evidence because it was a question, not a conversation, does not explain his omitting to mention it,when one looks at the questions he was asked. The fact that this evidence about such a crucial issue was not put to the Complainant incross-examination suggests that it is a product of recent invention, and something on which no weight should be placed. [61] There are other aspects of the Accused’s evidence which are troubling, including that fact that he told police that he did not

know who the Complainant was, even after Constable MacKay reminded him that this was a woman he had taken a bath with and after he had given her a ring in order to begin a relationship with her. His evidence that the intercourse he had with the Complainant was gentle and loving is at odds with the injuries to the Complainant noted by the forensic nurse. The Accused’s evidence does not give rise to any reasonable doubt in this case, once again due to its internal inconsistency, and patent unreliability.

There is nothing of significance in the evidence of any of the other witnesses that supports the conclusion that what the Accused is saying might be true with regard to any of the pivotal issues in this case. [ 62 ] Having rejected the Accused’s evidence, and having concluded that it does not give rise to a reasonable doubt, the next question is whether, on the evidence that is accepted, the Crown has proven the offence of sexual assault beyond a reasonable doubt.

It is clear, beyond any reasonable doubt, that the Accused had physical contact with the Complainant of a sexual nature, which included him performing oral sex on her and committing sexual intercourse with her. I am satisfied that the Complainant did not consent to any sexual act with the Accused. I accept her testimony in this respect.

It is not credible that this Complainant would suddenly agree to virtually spontaneous sexual activity with a person she had no previous relationship with, and given that there was no prior discussion between the parties about her visit to the Accused’s home being for a sexual encounter. The evidence of the injuries noted by the forensic nurse are more supportive of how the Complainant testified that the sexual encounter occurred than how the Accused says that it occurred.

The actus reus of the offence has been proven beyond a reasonable doubt. [ 63 ] There is no conclusion other than the sexual activity was intentional. I find that the Accused knew that the Complainant was not consenting because I accept her evidence that she told him as much. Even if this was not the case, the evidence shows that the Accused never took reasonable steps to ascertain that the Complainant was consenting to have sex with him. On his own evidence that he gave the first day he testified, there was no conversation in which the Complainant expressed her consent to have sex with him.

Even if the evidence he gave on the second day was truthful (and I find that it was not), asking the Complainant to “make love” under these circumstances does not amount to taking reasonable steps to ascertain that the Complainant was consenting to oral sex and to sexual intercourse.

Section 273.2 of the Criminal Code states that it is not a defence to a charge of sexual assault that the Accused believed that he had the Complainant’s consent to do what he did here when he did not take reasonable steps to ascertain that the Complainant was consenting. [ 64 ] The Accused owed it to the Complainant, both at law and as a decent human being, not to take the liberties that he took with the Complainant and not to cross the very personal boundaries that he crossed, without ensuring that she was consenting to those acts.

When she told him that not to do what he was doing, he ought to have respected her wishes. His disregard for the Complainant’s personal security, her sexual integrity, and her personal feelings, is inexcusable [ 65 ] For the foregoing reasons, I find that the Crown has proven all of the elements of the offence charged beyond a reasonable doubt, and I find the Accused guilty as charged. Dated at the City of Abbotsford, in the Province of British Columbia, this 22 nd day of May, 2015. ______________________________________________ (The Honourable Judge K. D. Skilnick)