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Content warning: graphic depiction of sexual violence
A man found guilty of sexually assaulting a North Vancouver woman has failed to have his conviction tossed out on appeal.
According to a B.C. Court of Appeal ruling released this week, the offender (who cannot be named under a publication ban) was convicted following an assault that happened in June 2019.
The victim had invited the man to her North Vancouver home and the two had sex, which both agreed at trial was consensual. What happened after led to charges in court.
The victim, whose identity is protected by a publication ban, testified the two spoke for a while afterwards before returning to her basement where “the appellant kissed her, performed oral sex on her and had sexual intercourse with her while she strenuously tried to resist and repeatedly told him to stop,” B.C. Court of Appeal Justice Lauri Ann Fenlon summarized in her ruling.
The victim testified that she told the accused that he “didn’t respect” her wish to stop, to which he responded, “I think with my dick over my brain sometimes,” the ruling states.
At trial, the man denied that any second sexual encounter took place. He told the court they spoke briefly about their relationship, after which he “felt cheated” because she told him she had been seeing another man, but that they parted on good terms.
The next day, she texted him, “You really scared me last night. I think I just need a break talking to you for a bit,” the court documents state.
The man appealed his conviction, arguing the judge made two legal errors that denied him a fair trial. Specifically, he said the evidence given about their consensual sex should have been the subject of a voir dire – the legal term for a trial within a trial, to determine if certain evidence may be admissible. Under the law, judges are supposed to guard against evidence about a complainant’s past sexual activities being entered into a trial, lest it be used to undermine their trustworthiness about whether they consented to the sexual act that is the subject of the trial.
On appeal, the accused said the judge considered details that should have been inadmissible in reaching conclusions about his own credibility, without which “he would not have been exposed to additional opportunities for the judge to find inconsistencies and improbabilities in his version of events,” the ruling states.
The appeals court judges agreed that there was more evidence about the consensual sex admitted at trial than was necessary to establish a coherent narrative, which amounted to a failure to protect the victim’s personal dignity and right to privacy. A proper voir dire should have been held to prevent that, they ruled. But they also found the lack of a voir dire in no way undermined the appellant’s case.
“That evidence, while largely irrelevant, did not prejudice him,” Fenlon wrote.
The man also said the trial judge was unfair in raising his failure to provide phone records that would have helped corroborate his version of the events, arguing it effectively reversed the burden of proof.
But the appeals court judges found the North Vancouver provincial judge gave little weight to the lack of phone records in coming to a guilty verdict.
“The judge gave detailed reasons for her assessment of the appellant’s evidence and why she did not find his version of events to be true or sufficient to raise a reasonable doubt. She found he had difficulty recalling details and timelines; that his evidence was externally inconsistent; that there were a number of apparent internal inconsistencies in his evidence; and that his evidence ‘did not always make sense,’” Fenlon wrote. “If the judge made an error by giving weight to the appellant’s failure to produce phone records, it did not result in a substantial wrong or miscarriage of justice.”
