R. v. J.P. Date:, 2017 BCPC 71

Citation: R. v. J.P. Date: 20170314 2017 BCPC 71 File No: 9592-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (YOUTH JUSTICE COURT) REGINA v. J.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: J.D. Crowhurst Counsel for the Defendant: J.P.R. Boxall Place of Hearing: Abbotsford , B.C. Dates of Hearing: February 21-23, 2017 Date of Judgment: March 14, 2017

Introduction [1] The Accused, a Young Person as that term is defined in the Youth Criminal Justice Act, will be identified by his initials, J.P. He is charged that on or about January 10, 2015, he sexually assaulted the Complainant, who I will also refer to by her initials, A.C.C. The Accused is charged with committing the offence of sexual assault, contrary to

section 271 of the Criminal Code. [2] At the trial of this matter, both the Accused and the Complainant testified. Also called as Crown witnesses were a friend of theComplainant, a school counsellor that the Complainant spoke to and a police officer that interviewed the Complainant. Much of thefacts in this matter are not in dispute. For example, both the Accused and the Complainant agree that on January 10, 2015, the two ofthem met up at the Seven Oaks Shopping Center in Abbotsford, BC, and walked to the home that the Accused was living in, and theyengaged in sexual activity there.

They both agree that some of the sexual touching was consensual and that it was preceded by aprolonged series of message exchanged between the two of them by texting on their cell phones, on their Facebook pages, and on theinstant messenger function on their Xbox 360 gaming consoles. [3] The Accused and the Complainant also agree that their sexual activity on January 10, 2015 progressed to the act of sexualintercourse, but the evidence of the two differs on the important question of whether or not this was a consensual act.

The Complainantis clear that this was something that she did not consent to, either at the time it happened, or in any of their prior communications leadingup to their encounter. The Accused agrees that in the previous communications, the Complainant was very clear that she did not want tohave sexual intercourse, but he says that when the two of them were engaged in other sexual activity, he believed that the Complainanthad changed her mind and was now giving her consent.

In the alternative, his counsel argues that if the evidence satisfies me beyond areasonable doubt that the Complainant did consent to sexual intercourse, reasonable doubt exists nevertheless that the Accused had thehonest but mistaken belief that the Complainant was consenting to the sexual intercourse that occurred. Applicable Law [4] Before reviewing the evidence in this case, I will summarize the law concerning the offence of sexual assault under

section 271of the Criminal Code. The Supreme Court of Canada, in R. v. Ewanchuk (SCC), [1999] 1 S.C.R. 330, held that aconviction for sexual assault requires proof beyond reasonable doubt of two basic elements: (1) that the accused committed the act ofunwanted sexual touching, and (2) that the accused did so, knowing of, or being reckless about, or wilfully blind to, a lack of consent,either by words or actions, from the person being touched. [5] 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 issue is whether the sexual intercourse that occurred was non-consensual. In R. v. Ewanchuk, the courtdefined the term “consent” as being something that is determined by the state of mind of the Complainant. The reason for this isbecause the Criminal Code seeks to protect everyone’s personal security from any non-consensual force or threat of force. [6] The court in R. v. Ewanchuk went on to state that while a complainant’s testimony is the only source of direct evidence as to hisor her state of mind, a complainant’s 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.” [7] In order to prove that an accused committed the offence of sexual assault, part of what the Crown must prove, beyond areasonable doubt, is that: 1.

The accused intended to touch the complainant in a sexual manner; and 2. The accused knew of, or wasreckless or wilfully blind to, a lack of consent on the part of the person touched. [8] 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.

Ewanchuk, para. 30). [9] 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. [10] It is important to understand that it may not be enough for an accused person to simply say “well, I though he or she wasconsenting” or “I assumed I had consent.” The law tries to protect the sexual integrity of persons by placing the onus on those whoinitiate sexual contact by making them responsible to ensure that consent is present.

If the person initiating sexual contact either knowsthat he or she is doing so without the consent of the other person, or is reckless, within this context, when he or she ought to have beenconcerned about whether or not consent was present, but takes the risk and proceeds without taking reasonable steps to determine ifconsent is present, then consent may be lacking. Wilful blindness exists where an accused is or ought to be suspicious, to a point where areasonable person would see the need to make further inquiries, but he or she deliberately chooses not to make those inquiries. [11] 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, for example if consent isobtained as the result of the application of force, as the result of threats or fear of the application of force to the complainant or someoneelse, by fraud or by exercise of authority.

Section 271.3 (2) provides that consent is also not valid if it is given by someone other than

the complainant, if the complainant is unable to consent, if it is obtained as a result of the abuse of a position of trust or authority, or ifthe complainant expresses a lack of agreement to engage in the activity by words or conduct. It also provides that consent that has beengiven can later be withdrawn by the complainant’s words or conduct. [12] 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. Thecourt stated, at paragraph [54]” “The complainant must agree to the specific physical sex act. For example… agreement to one form of penetration is not agreement toany or all forms of penetration and agreement to sexual touching on one part of the body is not agreement to all sexual touching.” [13] In R. v.

Ewanchuk, the court held, at para. 31, that there is no such thing as “implied consent” in the context of sexual assault.Justice Major wrote: “The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is notone of them. There is no defence of implied consent to sexual assault in Canadian law.” [14] A defence is available to an accused who honestly but mistakenly believes that he or she has the consent of the complainant totouch the complainant in a sexual manner.

If an accused has such an honest, but mistaken belief in a state of facts which, if true wouldhave rendered the accused’s conduct lawful, then he or she may have a defence to the charge. [15] In R. v. Ewanchuk, the court said (at paragraph 46) that it is not enough if an accused simply believed that he or she had theconsent of the other person to partake in the sexual activity. The court said that “A belief by the accused that the complainant, in herown 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 inthe complainant’s mind provides no defence.” [16] There may be circumstances where an accused believed that he had obtained consent, through a combination of words and/oractions. But

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 thecomplainant was consenting. [17] So, to summarize the law concerning consent, consent cannot be implied.

It is not valid if it is obtained as the result of theapplication of force, as the result of threats or fear of the application of force to the complainant or someone else, by fraud or by exerciseof authority. Consent is also not valid if it is given by someone other than the complainant, if the complainant is unable to consent, if itis obtained 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. [18] If an accused has an honest but mistaken belief that the complainant has given consent to the sexual touching, the accused mayhave a defence to a charge of sexual assault. But mistaken belief in consent cannot arise out of the accused’s self-induced intoxication,recklessness or wilful blindness.

If an accused did not take reasonable steps to ascertain that the complainant was consenting, then theaccused’s belief in consent cannot form the basis of a defence to a charge of sexual assault. [19] The burden of proof in a criminal case always rests with the Crown to prove all of the elements of the offence beyond areasonable doubt. The test in a criminal trial is not which side is believed, but whether or not the Crown has proven the offence beyond areasonable doubt.

I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proven eachessential element of the offence beyond a reasonable doubt. [20] 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 W. [D.] (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence of the Accused which raises a defence or negates an essential element of the offence, then I must acquit.

Second, if I do not believe the evidence of the Accused raising a defence or negating an essential element of the offence, but I am left inreasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the Accused raising a defence or negating an essential element of the offence, Imust then ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the Accused’s guilt. [21] In R. v.

Lifchus (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt.” The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty.

Summary of the Evidence [22] On the date of the alleged offence, the Complainant was 14 years old and the Accused was 15. The two of them had first met in2013, and on two prior occasions they had tried to enter into a relationship. Because they were living in different cities and becauseneither of them had a car or a driver’s license, most of their contact was through electronic means: either by messaging on Facebook, cellphone text messages or over their Xbox 360 headsets.

[ 23 ] In December of 2014, the two were communicating again and had decided to try to resume their relationship. They communicated frequently and portions of their communication included the exchange of role-playing messages in which they described imaginary sexual acts between the two of them. Sometimes the role-playing imagined sexual intercourse. [ 24 ] Sometime after Christmas of 2014, the Complainant and the Accused discussed a meeting. By this time the two of them considered themselves to be dating and they planned to meet in Abbotsford.

Their messages turned to the subject of what sexual activity would be allowed when the two of them finally met in person. It was quite apparent from the content of these messages that the Accused was very anxious for their relationship to have a sexual component to it. This was of lesser importance to the Complainant, who was more interested in just spending time with the Accused.

For example, in a series of messages that the two exchanged on January 4, 2015, the Accused told the Complainant: “I don’t want just your boobs, but if you’re gonna say ‘kay you’re allowed’, I expect it.” The Complainant responded by saying that she wanted to spend some time with him walking around the mall first, but the Accused was anxious for the sexual activity to begin. [ 25 ] The communication that followed is disheartening to read. The Complainant was seeking an emotional attachment with the Accused, while his primary goal was a sexual one.

The Complainant testified that the Accused was the first boy who had shown any attention to her. The Complainant appears to have felt that she had to bargain away her sexual integrity in return for the Accused’s attention. At one point she tells him “Bra can be moved, but not taken off, but no farther until I say so. Deal?” Later she tells the Accused, “I hope you can love me for more than my boobies.” Conversely, the Accused’s focus in the discussion is on his sexual gratification.

At one point in the messaging he tells the Complainant “You said I could do anything with the top half of your body.” The Complainant reminded him that she has never had sex before. The Accused later wrote “I still get boob privileges, right?” [ 26 ] In another message exchange that took place on January 9 th , the Complainant told the Accused that she was not a sexual person. She told him that she said that she had already agreed to let him go farther than she wanted, and asked “isn’t that enough?” The Accused said that he was always going to want sex.

The Complainant said that she wanted to wait until she was older, at which point the Accused said that he was going to go. The Complainant testified that this was common behaviour for the Accused to shut down or threaten to leave if he was not getting what he wanted from her. [ 27 ] The Accused testified that he wanted to have “a more mature relationship” with the Complainant. When asked by his counsel what that meant to him, he testified as follows: Mr. Boxall: And what do you mean by a mature relationship?

J.P.: Like, you see, like, after like, I just watched so much TV and everything and you see all the, like, adult relationships. I thought that’s how it worked; I thought that was how it was supposed to be. Mr. Boxall: And what do you mean, how was it supposed to be? J.P.: Like, I thought sex was a necessary thing, and like, it was just normal and it just happened. Mr. Boxall: Were those relationships just about sex? J.P.: No, there was emotion behind them too. (February 22, 2017, 10:09:08 to 10:09:42) [ 28 ] On January 10, 2015, the Complainant got a ride from her mother to the Seven Oaks Mall in Abbotsford.

There she met the Accused. They walked to his house, stopping at a store on the way, where the Complainant testified that the Accused got her to buy him some energy drinks. The Complainant testified that she was reluctant to have sex with the Accused. She testified “He said he had sex four times. I never had sex and never meant to. I cared for him so much that I brought down my morals. I wanted to stay with him. It was always a bartering game with him.” [ 29 ] The Complainant testified that when she and the Accused were walking from the mall to his home, they discussed what would happen at his house.

She said that she gave the Accused permission to touch her sexually, but not to have intercourse with her. She said that she gave him permission to touch her breasts and her vagina, but intercourse was out of the question. The Complainant testified as follows: Mr. Crowhurst: So at the point that you are on your way to the mall-- A.C.: Yeah Mr. Crowhurst: What was the, what was your agreement with [the Accused]? A.C.: My agreement? I basically gave up through all the arguments and I was like, okay, you can do whatever you want, as long as we don’t have intercourse.

You can touch my boobs, you can finger me, you can touch my vagina, I don’t care, as long as I’m with you and we don’t have sex. (February 22, 2017, 10:36:46 to 10:37:06). [ 30 ] In his evidence, the Accused agrees that the two of them arrived at that understanding. He understood how the Complainant felt about what she wanted to do and what she did not want to do. He testified as to what his understanding of those limits were, using a definition of sex similar to that of former US President Clinton, that “sex” meant sexual intercourse, but not sexual touching. He testified as follows: Mr.

Boxall: And so what did you discuss about what would happen at that meeting?

J.P.: Well we had discussed, like, because I wanted to do something sexual, but she didn’t, so we had to, we kind of negotiated, and came to an agreement as to what I could and couldn’t do, what was too far and what wasn’t. Mr. Boxall: And what was your understanding of that agreement? J.P.: Everything but sex was not too far. Mr. Boxall: Do you remember how you came to that agreement? J.P.: Through a lot of arguments. (February 22, 2017, 10:06:40 to 10:07:17) [ 31 ] When the two arrived at the Accused’s home, his mother and grandmother were in the house and the Complainant talked with them for a while.

As she and the Accused were heading upstairs to the Accused’s bedroom, both the Complainant and the Accused recall that the Accused’s mother said “keep the door open and don’t do anything stupid.” The Complainant testified “those words will haunt me forever.” [ 32 ] The two of them went into the Accused’s bedroom. The lights were off. She says that the two of them cuddled briefly and the Accused agrees with this. When the Complainant was using her phone, the Accused saw that she had a picture of him as the screensaver on her phone.

She said that he sounded angry and said to her, “why do you have that?” She replied that she was allowed to do this. The Accused agrees with this version, but says that he was not angry about this, only surprised. [ 33 ] The evidence of the Accused and the Complainant diverges on what happened next. The Complainant said that the Accused took a pair of scissors and held them to her wrist as he made a comment that seemed to him to be some sort of a joke.

The Accused denies that this ever happened. [ 34 ] Both the Complainant and the Accused testified that he then put his hand on the inside of her shirt and began to touch the Complainant’s breasts.

She says that he said “I’m allowed to do this.” The Complainant said that this made her feel anxious, but that she felt too awkward to say anything and thought to herself, “I can’t say that I didn’t want this.” Although she was not enjoying the experience, she said “I cared for him too much, and I agreed to these terms, so I had to.” The Complainant says that she remained passive through this experience, stating “he was doing everything himself.” [ 35 ] The Accused agrees that the Complainant did not appear to be enjoying what was taking place at the time.

He said “she wasn’t really doing a lot; she was just laying there on her back.” The Accused testified that after a few minutes, he “got bored with her boobs” and he moved his hand down to the inside of the Complainant’s pants. He says that after this, he stopped and the two “were relaxing for a brief time”. After this, he testified that he removed the Complainant’s pants, in his words “because I said I wanted more access, easier access to her so I could do more”. [ 36 ] The Complainant testified that the Accused lowered his pants and underwear, exposing his penis.

She says that he took her hand and placed it on his penis. She testified that there was no conversation or request and neither she nor he said anything. She testified that he got on top of her, straddling over her and had his penis in front of her mouth. She said that he told her to put his penis in her mouth. She did so, but this stopped when he complained that she was biting it. [ 37 ] At this point, the Complainant testified that the sexual activity stopped for a time, while the Accused played a game on the Xbox. She said that she tried to cuddle with him, but he was more interested in his video game.

She lay back on the bed, and then the Accused got on top of her and said “I got this”. He removed his pants and she wondered what he was doing. She says that the Accused began to have sexual intercourse with her and that he did so very roughly. She testified that she tried to tell him that he was hurting her, but that she had difficulty getting the words out. She says that she told him that it hurt, but she was not sure if he heard her. The Accused was not using a condom, and he withdrew from her just prior to ejaculating on her stomach.

After doing so, he placed his hand on her vagina and asked her why it was so wet, just before discovering that she was bleeding. The Accused and the Complainant tried to clean up some of the blood. [ 38 ] The Complainant could not recall the Accused saying anything to her prior to the sexual intercourse. In a statement that she gave to police on the day after the offence, she recalled that he said “you gave me permission to do other sexual acts.

This counts too.” When she gave her evidence at trial, she did not recall him saying this. [ 39 ] The Accused has a different recollection of what preceded the sexual intercourse. He testified as follows: Mr. Boxall: And what happened from there? J.P.: From there, we went, like, after a while it kind of just stopped and went back to relaxing for a bit. And then I got up and I was in front of her, maybe, probably a couple of feet away from her. But beforehand, like, we both, okay, so after the fingering, we took her pants off because I said I wanted more access, like, easier access to it so I could do more.

And then, like, after all of that, after her pants were off and everything, I backed up a couple feet in front of her and I had asked her, “would you be okay with going all the way?” But there was no answer the first time. So the second time--- (February 22, 2017, 10:15:23 to 10:16:06) [ 40 ] At this the Accused was interrupted as his counsel asked for clarification of some of his previous evidence. He said that there wasn’t really any discussion about the Complainant removing her pants. He said that he removed her pants, but that she helped. He continued his evidence as follows: Mr.

Boxall: You said you backed off --

J.P.: Yes. I was in front of her. Mr. Boxall: (Inaudible) J.P.: I asked her, “Would it be okay if we went all the way?” And then I didn’t get an answer. So I made sure I got her attention the second time, made sure there was eye contact and everything. And I had asked again. What I saw was a slow, but firm nod, I don’t know how to describe it, but it was really apparent to me, and it sticks out quite well. I can picture the exact moment. I’ve been able to picture it, like, since the beginning. Mr. Boxall: And what did you think that meant?

J.P.: That’s what I thought; I thought it meant, she had become more comfortable maybe? And like, after all that we’d done; I had also asked her if she was enjoying it before I asked her to go father. So I thought she was enjoying it and comfortable with it, so I thought it was okay to ask. Mr. Boxall: Did she respond to you when you asked her if she was enjoying it? J.P.: She did. She said she was. Mr. Boxall: Do you remember when that was? J.P.: That was after I slipped my hand down the front of her pants. Mr. Boxall: So after she nods, what happens next?

J.P.: I fully advance, but I didn’t go like right on top of her, I took enough time to like give her the chance to tell me to stop or to push me off or to do really anything to stop it from happening. Mr. Boxall: Okay. J.P.: But she didn’t, so we proceeded with it, then minutes in she made a comment about how it hurt. Mr. Boxall: Okay. You say you proceeded with it. Can you explain that? J.P.: Yes. I fully advanced towards her and I inserted myself into her, and started off very slowly, and within minutes she was telling me that it hurt, and like didn’t feel good, stuff like that.

I can’t exactly remember her words. (February 22, 2017: 10:16:40 to 10:18:43). [ 41 ] Later in his testimony, the Accused was once again asked why he believed that the Complainant had changed her mind about not wanting to have sexual intercourse. He testified as follows: Mr. Boxall: Miss C. told you, a few times before the 10 th , that she wanted to remain a virgin, isn’t that correct? J.P.: That is correct. Mr. Boxall: Sex wasn’t part of the deal that you had with her. J.P.: That is also correct. Mr. Boxall: Why did you think she had changed her mind?

J.P.: Because we had been doing other sexual things before the sex actually was initiated or happened. And then I had mentioned before, as I mentioned before, I asked her if she was enjoying it. She told me yes, so I thought it would be okay, and it was comfortable to go farther. Mr. Boxall: Was there anything specific that she did that made you think it was okay? J.P.: When I had asked her, just her body language, like, she nodded and made eye contact at the same time, so I know she heard me.

So that’s what led me to believe it was okay, that it was a yes. (February 22, 2017, 10:29:44 to 10:30:47) [ 42 ] Near the end of his cross-examination, the Accused was questioned about whether or not he had gone too far and beyond what the Complainant was consenting to. He was asked these questions, and gave these answers: Mr. Crowhurst: You need to have sex in your relationship with girls, correct? J.P.: It’s not that I need it, it’s something I want. Mr. Crowhurst: And you knew she didn’t want to have sex? J.P.: Yes. Mr. Crowhurst: But you didn’t care about that.

J.P.: Yeah. Mr. Crowhurst: You wanted to have sex with her. J.P.: Yes. Mr. Crowhurst: And you took advantage of the situation. You took what you thought was an agreement by her and proceeded to have sex with her when you weren’t sure whether she wanted it or not, were you? J.P.: But I took the necessary steps beforehand, such as give her more time before putting it in, and asking, making eye contact and watching body language before anything even proceeded to go into sex. (February 22, 2017, 11:31:55 to 11:32:39) [ 43 ] Later on in that exchange, the questioning and answers continued: Mr.

Crowhurst: So she gave what you thought was a nod. J.P.: What I interpreted as a nod, yes. Mr. Crowhurst: You didn’t ask or seek a kind of verbal answer. J.P.: We hadn’t been talking the whole time, so I wasn’t sure if she’d be giving me a verbal answer, so I didn’t really expect one. Mr. Crowhurst: So, you go ahead and you have sex with her. J.P.: Yes, after giving her the necessary, what I thought was the necessary time, like allow her a moment to tell me to stop or to push me off, or to like push me back and not just do anything really. Mr. Crowhurst: Right, you’re really waiting for her to say no. J.P.: Yeah.

I was waiting for her to say no. Mr. Crowhurst: And that’s similar to what you said in the text message, “don’t be so pathetic, just tell me”. J.P.: Yeah. (February 22, 2017, 11:33:22 to 11:34:04). [ 44 ] The Accused testified that he withdrew from the Complainant after she told him that she was hurting. He testified that he thought it would be a good idea for him to resume inserting his finger into the Complainant’s vagina and it was then that he discovered that the Complainant was bleeding.

He said that he went to get a towel for the Complainant. [ 45 ] The Complainant says that she tried to cuddle with the Accused after, but he did not want to do so. Instead she said several times he picked up a knife that he had in his room, and had a stern look on his face, but said nothing. The Accused denies that this occurred. He testified that he made a comment asking the Complainant to perform oral sex on him. He testified as follows: Mr. Boxall: So you go back to playing Xbox and what happens next?

J.P.: Well, actually before we were playing Xbox, I made a comment asking her like about a blowjob and everything. And there wasn’t really an answer to it. But, like, it looked like she motioned towards me, so I pulled my pants down, and it kind of like happened. Mr. Boxall: What do you mean “it kind of happened”? What did you do and what did she do?

J.P.: Well, I had put it in her mouth because I assumed, like she’s, like, I didn’t force it or anything, but she seemed, like, she came closer to me, and I went closer to her and I put it in her mouth. (February 22, 2017, 10:20:22 to 10:21:03) [ 46 ] In cross-examination, the Accused gave the following testimony about this part of the incident: Mr. Crowhurst: After you got her the towel, at what point did you have the conversation, you said, in direct evidence, “I made a comment about a blowjob.” Can you be more specific about what you said? J.P.: It’s very vague.

Like, I can remember that one main moment, the one that’s like a picture in my head, but the blowjob, that was like, there was like a short couple sentences said about it, and then I really don’t remember it quite well. But I remember it being, like, too rough, and like, I was the one being too rough and forcing it too much. That’s why I stopped. Mr. Crowhurst: Right. Now you heard Miss C. say that what you said was, oh I’m sorry, that’s not right, you heard your counsel suggest to Miss C., let’s just see if I have the exact quote, uh, “I didn’t finish, can we do this instead?” J.P.: Yes, I do recall that. Mr.

Crowhurst: And you were referring to the oral sex? J.P.: Yes.

Mr. Crowhurst: And what do you recall was her reaction to that? J.P.: It was, like, a very shy reaction, a very slow reaction. Mr. Crowhurst: All right, she didn’t say “yes”, she didn’t say anything? J.P.: No. There was more body language. There wasn’t a lot of verbal communication. (February 22, 2017, 11:16:47 to 11:18:42). [ 47 ] The Accused testified that after that, the two of them sat in silence. He said that the Complainant was doing what he described as “annoying girlfriend things” and he continued playing video games for about two hours.

Later they spoke to the Accused’s mother and ate some popcorn before leaving to return to the mall where the Complainant was meeting her mother. [ 48 ] In cross-examination, the Accused testified that he didn’t have any sex education classes in school. He knew that unprotected sex could lead to pregnancy. In response to questioning from the Crown, he testified as follows: Mr. Crowhurst: None of that was on your mind that afternoon?

J.P.: I had thought about it, but I wasn’t worried because I didn’t really know the statistics of any of it, I didn’t know, like, if it was, like, a really good chance of it happening or a small chance, so I didn’t worry about it as much as I really would have, like, say now, I would worry about it more because it’s something I would actually put a lot of thought into, but that was more in the moment so I really didn’t think about it. (February 22, 2017, 10:48:07 to 10:48:35). [ 49 ] On the walk back to the mall, they walked by Mill Lake, and the lake had a sinister looking appearance, as might be seen in a horror film.

This prompted the Complainant to call the Accused a rapist. She said that this was not intended to be a comment about what had just happened. She said “I was still not sure what just happened.” The comment appeared to upset the Accused and he did not speak to her. The Accused agreed that the comment bothered him a lot. He gave her directions on how to get back to the mall and let her walk the rest of the way on her own. [ 50 ] The Accused and the Complainant exchanged text messages on the evening of January 11 th .

In the exchange of text messages, the Complainant told the Accused that, in her words, “the whole sex thing turned my world upside down. I don’t think you understand how much it actually did.” He replied with a text message telling her “next time don’t be so pathetic.” In a subsequent message he told her “thanks for getting my hopes up for nothing.” He also complained that he had bought her a Starbucks gift card, but said that he was done with her. After directing profanity at her, he told her “Goodbye, good riddance.

I’m dating someone better now anyway and I’ll give the card to a homeless person.” [ 51 ] The Complainant rode home with her mother but did not immediately tell her mother what had happened. The first person she told was a friend of hers at school, two days later on January 12. The Complainant told her friend “I f---ed up” and began crying. Her friend convinced the Complainant to talk to a counsellor, and the counsellor asked for and received the Complainant’s permission to tell the school principal. The Complainant’s mother was also called and she told her mother what had happened.

The Complainant was subsequently seen by a sexual assault nurse examiner, and provided a statement to Detective Culbertson of the Abbotsford Police Department. Analysis [ 52 ] From hearing the evidence of both the Accused and the Complainant, and from reviewing their electronic communication, several things become clear. The two entered their relationship with different goals and expectations. The Complainant was seeking emotional support and acceptance from someone who would value her as a person.

For the Accused, at the heart of all of his communication is his desire for someone to provide him with sexual gratification. In both his electronic communications, and his interpersonal dealings with the Complainant, what comes through is his profound insensitivity to the Complainant’s feelings, and his own self-centred fixation on his sexual desires. This is especially clear when, after he has had sexual intercourse with the Complainant for what was her first time, he showed no regard or compassion for how she was feeling, and instead made further sexual demands of the Complainant.

His actions of ignoring the Complainant and after the sexual activity was complete and instead playing video games by himself demonstrates that for him, the Complainant was not really a person, but rather an object for him to use for fulfilment of his sexual desires. [ 53 ] The Accused is not on trial for being a bad boyfriend, for being self-centred or inconsiderate, or even for being emotionally abusive. He is charged with the criminal offence of sexual assault. The burden of proof rests with the Crown to prove all of the elements of that offence beyond a reasonable doubt.

Much of the testimony of the Complainant and the Accused is virtually identical, with their versions of what took place between them diverging on only a few points. For example, the Complainant testified that during the time that she was in the Accused’s room, he would make concerning remarks to her, while holding scissors or a knife against her skin. This is something that the Accused denies. Their evidence also differs on the order of certain sex acts, but both agree that those acts did occur.

Their evidence also differs on the question of what, if anything, the Accused said to the Complainant before he began to have sexual intercourse with her and how she responded. [ 54 ] In a case where the evidence of the Accused and the Complainant differs, a court is required to embark on an analysis, as set out by the Supreme Court of Canada, in R. v. D.W. [1991]. The first stage of this analysis calls for a consideration of whether or not the evidence of the Accused is credible. This presumes that the evidence of the Accused raises a defence to the charge.

In this case however, the Crown argues that the Accused had admitted guilt on his own evidence because he has admitted to all of the elements of the offence that the Crown is required to prove.

[ 55 ] As was earlier stated, the offence of sexual assault requires proof of some form of sexual touching, something that is clearly present here. The Accused admits that he performed a number of sex acts with the Complainant, including oral sex and sexual intercourse. Next it must be shown that these sex acts took place without the consent of the Complainant. The Complainant has testified that she did not consent to sexual intercourse. She made this clear in her testimony, and this is also consistent with her prior electronic communication with the Accused that preceded their meeting on January 10 th .

Both the Complainant and the Accused testified that the understanding each of them had was that the Complainant was not consenting to sexual intercourse. [ 56 ] The evidence of the parties differs as to what, if anything, was said when the Accused began to have sexual intercourse with the Complainant. It was her evidence at trial that the Accused did not ask for her consent before commencing to have intercourse with her. She told Detective Culbertson, in her interview following the report to police, that the Accused said something to the effect of “you gave me permission to do other sexual acts.

This counts too.” In either case, it was her evidence that she did not agree or expressly give permission for the Accused to have sexual intercourse with her. [ 57 ] The Accused’s evidence differs on how he says the Complainant gave her consent to the intercourse. First of all, he testified: “I backed up a couple feet in front of her and I had asked her, ‘would you be okay with going all the way?’ But there was no answer.” This would not make the intercourse consensual. Then he went on to testify, “So I made sure I got her attention the second time, made sure there was eye contact and everything.

And I had asked again. What I saw was a slow, but firm nod, I don’t know how to describe it, but it was really apparent to me.” Later, he said that it was “just her body language, like, she nodded and made eye contact at the same time, so I know she heard me. So that’s what led me to believe it was okay, that it was a yes.” On cross-examination, he clarified what took place, telling Crown Counsel that he saw what he interpreted to be a nod, but acknowledged that he did not ask or seek any kind of verbal answer.

He gave his reason for not seeking a verbal answer to be that, in his words, “We hadn’t been talking the whole time, so I wasn’t sure if she’d be giving me a verbal answer, so I didn’t really expect one.” In his words, he “just went ahead” with the intercourse. [ 58 ] There are two difficulties with the evidence of the Accused. Firstly, it is not credible to believe that the Complainant did anything that was consistent with giving her consent to intercourse.

It is not only inconsistent with her evidence, but inconsistent with the independent evidence of the electronic communications had between them and the conversation that they both testified to that took place just minutes before their arrival at the Accused’s home. [ 59 ] The second difficulty is that even if things did occur as the Accused states, his account of what took place would amount to either recklessness or wilful blindness on his part as to whether or not the Complainant was giving her consent to the intercourse that took place.

The burden of proof rests with the Crown to show, beyond a reasonable doubt, that the Accused either knew that he did not have the Complainant’s consent to have intercourse with her, or that he was reckless or wilfully blind as to whether or not the Complainant was consenting to the act. Much of the evidence on this point comes from the Accused’s own testimony. [ 60 ] In R. v.

Ewanchuk , supra, the Supreme Court of Canada stated, at paragraph 46, that in order to give an accused’s actions “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.” The court went on to say, at paragraph 50, that not every belief on the part of an accused that he has the Complainant’s consent is sufficient. This is because

section 273.2 of the Criminal Code provides that an accused’s belief that he has the consent of the Complainant cannot be founded on recklessness or wilful blindness. [ 61 ] An accused is reckless or wilfully blind if he or she interprets silence, passivity or ambiguous conduct as consent. In R. v. Ewanchuk , supra, Mr. Justice Major wrote, at paragraph 52: Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies.

The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. [ 62 ] In the present case, I do not accept the Accused’s evidence that he asked the Complainant if she would consent to “going all the way” or that she gave her consent by a nod.

Such a change of heart is inconsistent, not just with her evidence, but with the rest of the evidence, including the recorded electronic conversations that the parties had both before and after, and the stated intentions and goals of the Complainant. It does not make sense. It is more consistent with the parties’ past behaviour that the Accused persisted to a point beyond what the Complainant was consenting to.

Having rejected the Accused’s evidence on this point, I find the Complainant’s evidence to be more credible, that the intercourse took place without her consent, and under circumstances that would not give rise to an honest but mistaken belief on the part of the Accused that he had her consent. [ 63 ] If this conclusion is in error, I am nevertheless satisfied, on the Accused’s own evidence, that he was reckless or willfully blind as to whether or not he had the Complainant’s consent to have sexual intercourse with her. I find the words of Mr. Justice Major, previously quoted, to apply to this situation.

Common sense should have dictated that, once the Complainant had expressed her unwillingness to engage in sexual intercourse, as she had on many previous occasions, including just prior to their arrival at the Accused’s home, the Accused should have made certain that the Complainant had truly changed her mind before he proceeded to have intercourse with her. The Accused cannot rely on the brief lapse of time, the Complainant’s silence or his subjective

interpretation of what he perceived to be a silent nod that he can’t describe, to justify what he did as being moral, justifiable, lawful or consensual. Conclusion [ 64 ] For the foregoing reasons, I am satisfied that all of the elements of sexual assault have been proven beyond a reasonable doubt. Specifically, I am satisfied beyond a reasonable doubt that on or about January 10, 2015, at Abbotsford, British Columbia, the Accused J.P. had sexual intercourse with the Complainant, conduct that amounted to an unwanted sexual assault.

I am satisfied that the Accused did so, knowing that he did not have the consent of the Complainant to proceed with such conduct, and that even on his version of what

took place, he was reckless or wilfully blind as to whether or not he had the consent of the Complainant and therefore cannot have held an honest belief that the Complainant was consenting to have intercourse with him. [ 65 ] The Crown has proven all of the elements of the offence set out in count one of the information. Accordingly I find the Accused guilty of the offence that he is charged with in that count. Dated at the City of Abbotsford, in the Province of British Columbia, this 14 th day of March, 2017 _______________________________________ The Honourable Judge K.D. Skilnick