R. v. T.D.C. Date:, 2012 BCPC 375

Citation: R. v. T.D.C. Date: 20120727 2012 BCPC 0375 File No: 93995-C-2 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.D.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. W. Burrows Counsel for the Defendant: Mr. T. Weiss Place of Hearing: Merritt , B.C. Date of Hearing: July 5 and 12, 2012 Date of Judgment: July 27, 2012

[ 1 ] T.D.C. is accused of sexually assaulting J.S. They are long time friends and are both residents of the Coldwater Reserve. [ 2 ] On March 4, 2012, Mr. C. and Ms. J.S. met up in Merritt and went to the river with another friend, R.O. All of them drank a fair amount of alcohol. Mr. C. and Mr. R.O, shared a 26 ounce of bottle of whisky while Ms. J.S. drank a six pack of Palm Bay cooler drinks. This drinking occurred over the space of about four hours and Ms. J.S. said they all had a good buzz on. [ 3 ] Mr. Weiss, counsel for Mr. C., cross-examined Ms. J.S. to some extent about her awareness that Mr.

C. was under conditions not to drink alcohol, and her awareness that his drinking gets him into trouble. Originally, Ms. J.S. said she was not aware that Mr. C. was under conditions not to drink. However, her statement given to the police on the day of the incident indicates she was aware of his conditions. Mr. Weiss cross-examined Ms. J.S. why she would provide alcohol or drink alcohol with someone she considered a friend who was on such conditions. While this may be a damning social comment of public interest, it is irrelevant to the charges before me. [ 4 ] L.S. picked up Mr. C. and Ms.

J.S. from the river to take them back to the Reserve. They purchased more alcohol before leaving Merritt and decided to go driving around looking for deer. In that time, Mr. C. drank a mickey of whisky and Ms. J.S. drank two or three Palm Bays from a new six pack she purchased. Mr. L.S. dropped them off at Mr. C.’s home after about an hour. [ 5 ] Mr. C. and Ms. J.S. went into Mr. C.’s home. Mr. C. lived there with his grandmother and his brother. Both of those people were home, at least initially. Ms. J.S. said Mr. C. went into the kitchen to speak with his girlfriend on the phone. She could hear him arguing. Ms.

J.S. was going to leave to go to her friend W.’s house behind Mr. C.’s home but Mr. C. got off the phone and persuaded her to stay. [ 6 ] Mr. C.’s grandmother, who had been in the kitchen at some point, went down the hall to her room. It is uncertain whether Mr. C.’s brother was home although both Mr. C. and Ms. J.S. gave evidence that he was coming and going. [ 7 ] In any event, it is at this point that the version of events differs between Ms. J.S. and Mr. C. Ms. J.S. said that the two of them sat in the living room for a bit and then moved on to Mr. C.’s bedroom, where they continued talking. Ms.

J.S. denied there was any consensual sexual activity either in the living room or in the bedroom. They were just talking and drinking what was left of the last six pack of Palm Bays that she had purchased. Mr. C. testified that they had consensual sex on his couch before moving to his room. There, they continued to have consensual sexual intercourse. [ 8 ] Both witnesses were quite intoxicated on the evening in question. This was evident in their testimony as they attempted to recollect what actually transpired. Ms.

J.S. seemed to have no connection between what transpired in the living room or how they got to the bedroom. She was vague on events which transpired in the bedroom. Mr. C. was inconsistent in his evidence both in court and in his statement given to the police with respect to how they got to the bedroom. He said at first that Ms. J.S. asked to go to the bedroom. Later in his police statement, he said that Ms. J.S. got paranoid so he said they should move to his room. [ 9 ] As I stated, part of the problem with this case is the amount of alcohol these two people drank and the impact it had on their memories. Mr.

C. described it as being like a faded dream in his statement to the police. He repeated throughout that statement that he “barely remembers”, “I don’t even know what happened there”, “if I did that it sucks to have, I don’t want to be known for that”. His statement was also full of comments like “I guess” as though he were trying to piece together what could logically have happened as opposed to what did happen. [ 10 ] Ms. J.S. paused for long periods of time in her testimony. This was partly due to the emotional toll testifying had upon her, which was evident throughout.

It was also partly due to what appeared to be an attempt to sift through her own vague memory. [ 11 ] Mr. C.’s description of Ms. J.S.’s attitude toward the consensual sex is also telling of their degree of intoxication. He made statements like “she wasn’t telling me no”, “not like I was holding her down”, and “I didn’t pin her down”. These words were not delivered in a belligerent tone as they might imply, but in a forthright manner. It was as if the concept of unequivocal consent was not a consideration. [ 12 ] Ms. J.S. maintains that all of the sexual activity in Mr. C.’s room was non-consensual.

She said they were simply talking when he suddenly pushed her down on the bed, pulled her jeans off and began to have sexual intercourse with her. She said he attempted to first digitally penetrate her anus. She pushed his hand away and said no. He tried it again, and again she pushed his hand away and said no. She was crying throughout. He attempted to genitally penetrate her anus to which she also said no and pushed him away kicking him off of her. At that point, she testified that he asked her why she was crying and she replied that he was being too rough with her.

This is a very odd statement for someone to make who was not consenting to at least part of the sexual intercourse. It is also consistent with consensual sex that proceeded until a non-consensual act occurred. It is the best that can be determined as a result of her vague and disjointed recollection. [ 13 ] Mr. C. said that they continued the sexual intercourse that had commenced on the couch once they were in his bedroom. He said that he decided to mix things up a bit by trying to insert his fingers in her anus. He agreed that she protested and pushed his hand away.

He also agreed that she pushed his hand away on a second attempt. He denied that she was crying at this point but clearly understood she was not consenting to this component of the sexual activity. Instead of stopping, he attempted genital penetration of her anus. To this, he very clearly realized she objected. He agrees that she was crying. He asked her why she was crying and he confirms that her reply was that he was being too rough. His evidence is clearer and more reliable than that of Ms. J.S.’s on these points, and I find that matters proceeded as he described. [ 14 ] Mr. C. acknowledged that Ms.

J.S. was upset when she left but expected that because of their long time friendship they would just talk about it. He did not understand why she was upset or why she reported the matter to the police. Mr. Weiss suggested in cross- examination to Ms. J.S. that she only reported the matter to the police because she was embarrassed after disclosing the events to her

friend. It defies logic why anyone would allow the matter to be reported to the police, attend that same day to give a statement to thepolice and then attend here in court, all to save herself the embarrassment of a private disclosure of a very sensitive nature to a personalfriend. [15] Even by his own admissions, Ms. J.S. did not consent to anal sex. She protested on his first, second and third attempts, and yethe persisted. It was not until she was crying and angry that he let her up from the bed. [16] Ms. J.S. suffered three tears to her anus. This was not a minor transgression. Mr.

C. ought to have known there was no consentafter she initially pushed his hand away on his first attempt. He admits that he took it too far. [17] The law is set out in R. v. Ewanchuk (SCC), [1999] S.C.J. No. 10. The Supreme Court of Canada wasaddressing an appeal from a conviction based upon implied consent to sexual intercourse.

However, that decision sets out the obligationsof parties engaging in sexual conduct to ensure consent. [18] The components of sexual assault involve two elements, being the actus reus of unwanted sexual touching and the mens rea ofthe intention to touch while knowing of or being reckless or wilfully blind to a lack of consent either by words or actions of the person touched. At paragraph 28 of the Ewanchuk decision, the Supreme Court of Canada said this: 28 ... Society is committed to protecting the personal integrity, both physical and psychological, of every individual.

Having controlover who touches one's body, and how, lies at the core of human dignity and autonomy. [19] Of course, an accused can raise a reasonable doubt that the complainant’s words and actions bely her assertion she did not wantthe sexual touching to take place. In this case, with respect to the sexual activity on the couch and in the bedroom, I find that there wasconsent. [20] If Mr. C. established that he was mistaken as to her consent, that too can form a defence. However, he was not mistaken abouther objections to the anal sex.

On his own evidence, he recognized that, after his first attempt, she was not consenting. [21] Even if Mr. C. was unclear about her intentions when she pushed his hand away on his first attempt, the Ewanchuk decisionestablishes that Mr. C. ought to have ensured that the complainant was consenting before proceeding: 45 As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from theperspective of the accused.

Speaking of the mens rea of sexual assault in Park, supra, at para. 39, L'Heureux-Dubé J. (in her concurringreasons) stated that: . . . the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentiallysaying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes". 46 In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainantcommunicated consent to engage in the sexual activity in question.

A belief by the accused that the complainant, in her own mind wantedhim 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'smind provides no defence. [emphasis added] [22] The proceedings were adjourned so that counsel could locate certain cases. When we resumed, I was provided with R. v. Cook,[1985] B.C.J. No. 3041 (B.C.C.A). This case predates Ewanchuk and so some of the findings are no longer valid. I was referred toparagraph 56, which provides as follows: 56 The Burden case also provides the foundation for my second conclusion.

It is that a mere touching, if it is intentional, may,depending on the circumstances, be an exercise of sufficient force to fulfil the requirement of all the offences of assault, that force mustbe applied. If a light but intentional touching may constitute an assault, then I think that a light but intentional sexual touching mayconstitute a sexual assault.

On the basis of that premise an approach to the offence of sexual assault is required which will avoidtrivializing the offence by categorizing each uninvited kiss or caress as a sexual assault, or even as a simple assault I do not think thatprosecutorial discretion is an acceptable solution. The better approach, to my mind, rests on a theory of implied consent to an initial mildsexual touching, if preceded by a sufficient acquaintanceship. Thereafter, there would be an implied consent to each further reasonableadvance in touching, until such time as consent is explicitly refused.

Thereafter, any touching to which consent had not been given wouldconstitute a simple assault or a sexual assault, depending upon the touching. [23] It is clear that this latter reference to explicit refusal and implied consent are wrong in law. There can be no implied consentand it is consent that must be established, not refusal. However, this passage highlights the necessity for the court to examine thecontext of any alleged sexual touching. [24] Mr. Weiss queried whether Ms. J.S.’s aversion to anal sex constituted ambiguous conduct leading to a reasonable belief thatthere was consent. Mr.

Weiss suggested that Mr. C.’s attempts were exploratory and amounted to de minimus. I agree with Mr. Weissthat the cases wrestle with the fine lines between explicit consent, consent by conduct and the absence of consent. That, however, is not

evident in the case before me. [ 25 ] This is not a case where there is honest but mistaken belief as to Ms. J.S.’s consent. There is no ambiguous or contradictory conduct by her in persisting in pushing him away each attempt he made. There is only the reckless or wilful blindness to her lack of consent explained away only by Mr. C.’s admission that he took matters too far when he tried to mix things up. [ 26 ] As a result of Mr. C.’s actions, Ms. J.S. has suffered injuries which were not trifling or transient in nature. There is nothing de minimus about her injuries.

The medical report does not state that there was non-consensual force used, but there is no dispute that the acts occurred. These injuries are the result of those acts. Lest there be any misunderstanding of these findings, there need not be evidence of injury of any degree to prove sexual assault. [ 27 ] I find that the Crown has proved its case beyond a reasonable doubt that Mr. C. sexually assaulted Ms. J.S. and I convict him of that charge. ____________________________ S.D. Frame Provincial Court Judge