2010 BCCA 40

In 2010 BCCA 40, Mr. B was found guilty of sexual assault.
He appealed his sentence and conviction, both of which were dismissed.

Mr. B, a 30-year-old man and prison guard, met Ms. R, a 21-year-old woman, on an internet chat room. Mr. B used a false name (“Dion”), claimed he was half French, and told Ms. R he worked for Corrections Canada.

The two went to dinner on one date. A few weeks later Mr. B invited Ms. R over to his house. He told her his roommate and his girlfriend would be there. When she arrived, Mr. B was alone in the home and he gave her a drink. Later, the other couple arrived and they all had dinner and drinks. After dinner, the roommate’s girlfriend noticed Ms. R was asking very strangely. Ms. R testified that at this time, her memory began “fading in and out” and she felt very different from other times she had been drunk. The four went out to a night club where Ms. R was dancing erratically. Ms. R had little memory of the events of the night including how they got to the club. Later in the night she could remember lying on the sidewalk and feeling like she couldn’t get up. She woke up in the morning naked in Mr. B’s bed with vomit beside the bed. Ms. R testified that Mr. B told her she was naked because she vomited on herself so he had taken her clothes off but when she found her clothes there was no vomit on them. When she pointed this out, Mr. B said they had gotten wet from her lying in the grass, but the clothes were not wet. She went home that morning and went to school and work, but had gaps in her memory during that day and felt very strange.

She called Mr. B later to ask him if they had sex. Mr. B hesitated to tell her, but later said they had sex and he had used a condom. Mr. B said she had vomited on herself on the way home and he had removed her clothing and that Ms. R had initiated the sex.

After this conversation, Ms. R called the police and told them she had been raped. She was worried she had been drugged by Mr. B. A sexual assault examination found Ms. R had significant bruising and two vaginal tears that would have required significant blunt force. However, a toxicologist did not find evidence of the “date rape drug” (GHB). The toxicologist said it would be unlikely that the drug would be detected either way due to the time that passed be-tween the assault and the test (the drug only stays in the system for around 4 hours).

When the police contacted Mr. B, they discovered his name was not “Dion”. Mr. B denied knowing Ms. R and initially denied using the name Dion, but later admitted he used it on occasion and that it was his MSN account name. He did not admit to knowing Ms. R until a DNA sample was taken under a warrant. His misleading statements and lack of honesty was considered inculpatory by the trial judge.

Mr. B later testified that he did take her to the club and that Ms. R was very intoxicated and vomiting, but claimed that she initiated the sexual activity. Mr. B showed no remorse and maintained the sex was consensual.

Due to Ms. R’s inconsistent memory, the trial judge relied on circumstantial evidence in concluding Ms. R had not consented and did not have the capacity to consent. This included Mr. B’s inculpatory statements to the police, the multiple physical injuries that suggested a struggle, and the lack of logic in Mr. B’s claim that Ms. R passionately initiated sex after an intense vomiting session. Further, the trial judge found that Mr. B could not rely on the defence of honest but mistaken belief.

Ms. R’s victim impact statement showed severe effects on her mental health, relationships with men, sexual well-being, education and finances following the assault.

Mr. B was sentenced to two years less a day in jail and three years’ probation. Additional orders included a no contact order, prohibition from using social networking sites while on probation, a DNA order, a 20-year registration as a sex offender, and a three-year weapons ban. He lost his employment due to the conviction. Aggravating factors included the vulnerability of Ms. R, Mr. B’s deceptive behaviour, and Mr. B’s high degree of responsibility.

He was allowed out on bail prior to his appeal under specific conditions.

Mr. B appealed his conviction and sentence, both of which were dismissed. The trial judge’s consideration of his post-offence conduct, including lies to the police, wasn’t enough to reverse the conviction. The trial judge erred in finding Mr. B had transmitted gonorrhoea to Ms. R, as this was not proven beyond a reasonable doubt, and did not explain his reasons for rejecting psychologists’ reports which said that Mr. B was not a danger to the community.

However, the appeal judge found that the reports did not explain why Mr. B assaulted Ms. R, and his lack of accountability further diminished the lack of future risk. As such, the sentence was still considered to be within the reasonable limits. The Appeal Court found that it was not unreasonable for the trial judge to find the sentence should be served in jail rather than in the community.

Also see: 2009 BCCA 520 (Appeal); 2008 BCCA 483 (Appeal); 2008 BCSC 1526 (Sentencing); 2008 BCSC 917 (Trial).

He was allowed out on bail prior to his appeal under specific conditions.


Criminal Offence(s): Sexual Assault