2004 bcsc 889 f.g. v. r.f.

IN THE SUPREME COURT OF BRITISH COLUMBIA
F.G. v. R.F.,
Before: The Honourable Mr. Justice Vickers Reasons for Judgment
[1] This is an action for damages arising from a sexual assault and battery that the plaintiffalleges occurred on April 19 and 20, 2001. The defendant says the acts complained of wereconsensual. Consent is the central question the court must decide. [2] The plaintiff and the defendant are male persons and both are employed as paramedicsworking in Vancouver, British Columbia. [3] On the evening of April 19, 2001 the plaintiff had been playing a pickup soccer game. Heand the defendant had arranged the day before for the plaintiff to visit the defendant to viewhis newly purchased home in North Vancouver. When the game concluded he went to a restaurant withfriends and had something to eat. From there he proceeded home and showered. He testified thatabout 9:00 p.m., at the invitation of the defendant, he drove to the defendant’s home in NorthVancouver. [4] The plaintiff described viewing the home and then sitting in the living room with thedefendant. He acknowledges consuming two beers. He was about to leave when he was persuaded bythe defendant to have a drink of scotch. He said he told his host he did not like scotch and didnot drink it. Nevertheless, he testified that he took a sip or two from a tumbler of scotch thathad been poured by the defendant and thereafter, his memory of events is unclear. He describedgoing in and out of consciousness and experiencing some paralysis in his limbs. [5] He testified that he was assisted to the defendant’s bedroom where the defendant removedhis clothes. He recalled the defendant telling him he was too drunk to drive home. He said hewoke lying naked on the defendant’s bed and the defendant was performing fellatio on him. Herecalls being kissed by the defendant and the defendant manually stimulating his penis. He has arecollection of lying face down on the bed, his legs spread apart with the defendant on top ofhim, but says his anus was not penetrated by the defendant. He recalls being on top of thedefendant in a similar position. He denied vomiting, not only because he has no recollection ofsuch an event but because he had no residual after taste of vomit lingering in his mouth. [6] At about 2:00 p.m. on the morning of April 20, 2001, the plaintiff’s wife tried to contacthim. She paged him three times, the third time inserting the 911 code to signify the urgency ofthe call. He returned the call and she told him she was upset. She said the plaintiff told herthe defendant had told him he had too much to drink and should not drive home. He said he wouldreturn home as soon as he could. She testified that he said very little, for the most partresponding with “yes” and “no” answers. He did not sound like himself and she said he did notappear to her to be impaired by alcohol. When the conversation terminated she remained concernedabout her husband and stayed up until he returned home. [7] The plaintiff was unable to recall a telephone conversation with his wife. He said thatabout 2:00 a.m. the defendant told him his wife had called and that he had told her she was notto worry, and that he was too drunk to drive. The next thing he recalls is being told by thedefendant to get up and shower. When he asked the defendant why he had to shower he was told “toget the come off of you.” He says the defendant assisted him in washing, dried him off, assisted http://www.courts.gov.bc.ca/jdb-txt/sc/04/08/2004bcsc0889.htm[25/11/2010 4:03:40 PM] him in dressing and told him to go home. He has no recollection of the drive home. [8] On the plaintiff’s arrival home at 5:00 a.m. his wife was sitting on a couch in the livingroom. He came in, leaned on the couch and said “I don’t know what the fuck happened, I woke upin his bed, naked.” [9] The plaintiff’s wife drove him to the emergency unit of the Lion’s Gate Hospital. There hewas examined by a general practitioner who coincidentally, happened to be the plaintiff’s familydoctor. Blood and urine samples were taken. The hospital records show arrival at 5:30 a.m. anddischarge at 6:45 a.m. The plaintiff says he was home by 7:00 a.m. [10] The urinalysis report records the urine specimen as a blood specimen and this is an error. The sample is said to have been taken at 0744 hours and this too is in error if the sample wastaken from the plaintiff. The urine sample tested was negative for drugs and in particular,negative for Gamma Hydroxybutyrate (GHB). The sample was also negative for alcohol. [11] The plaintiff’s physician ordered baseline blood tests for sexually transmitted diseasesand prescribed prophylactic anti-retroviral agents for HIV (HIV cocktail) which the plaintifftook over the following 30 days.
[12] The plaintiff is 30 years of age and is married with two young children. He says that heis heterosexual and has never experienced any desire for a same-sex relationship or encounter.
[13] The defendant is 43 years of age and he was separated from his wife at the time of theincident. He too is married with two young children. Following his separation he publiclyacknowledged his homosexual preferences. He says he invited the plaintiff to see his new homeduring the evening of April 19, 2001. His recollection is that during the evening of April 19 hereceived telephone calls from the plaintiff explaining why he was delayed. Eventually thedefendant arrived at about 9:30 p.m. A few minutes after his arrival they were sitting in hisliving room consuming a beer. They talked about a number or things and continued to drinkthroughout the evening. He says that amongst other things they discussed his failed marriage;difficulties the plaintiff was experiencing in his marriage; and, a sexual advance by a maleScout leader the plaintiff had experienced when he was a youth in the Boy Scouts. [14] When the plaintiff indicated he was going to go home at about 12:30 a.m. on April 20, thedefendant said he told him this was not a good idea. He remembers the plaintiff saying at thattime that he had had a lot to drink. The defendant says he escorted the plaintiff to hisbedroom. He turned down the cover and sheet and the plaintiff removed all of his clothes excepthis underwear. The plaintiff then laid down on his bed. [15] He testified that as he was leaving the bedroom the plaintiff asked him where he was goingand asked him to come and sit with him and talk. The defendant went to the kitchen where hepoured himself another scotch. He then returned to the bedroom, sitting on the bed. Hetestified that as they spoke, the plaintiff touched his leg and his chest. The touching becamecaressing and kissing. The plaintiff assisted in undressing him and then told him he wanted toengage in anal sex. The defendant provided him with a condom and the plaintiff, fully aroused,put it on. The plaintiff proceeded to have anal intercourse and experienced an orgasm. [16] The defendant testified that the plaintiff rolled off him and lay beside him on the bed. He then made advances on the plaintiff, including an attempt at fellatio. The plaintiff told himthat what he was doing was bringing up too many issues for him, referring to the earlierconversation they had during the evening. The defendant testified that he “backed off” and theylay talking. The plaintiff’s pager went off and it was the 911 call from his wife. He said theplaintiff called his wife from a telephone on a bedside table.
[17] The plaintiff then slept and about 3:00 a.m. he got up to vomit, thereafter returning tothe bed. At approximately 4:00 a.m. the defendant got up and used his computer to send an e-mail. At approximately 5:00 a.m. the plaintiff got up and was shown to the shower and given atowel by the defendant. He says he did not assist the plaintiff in the shower. The plaintiffdeclined an offer of coffee and drove home. [18] The plaintiff reported the matter to police later in April. In reconstructing the amountof alcohol consumed that evening for the RCMP, the defendant said there were 15 empty beerbottles to be taken to the recycle depot and three quarters of a 26 ounce bottle of scotch hadbeen consumed. At trial he said the scotch was not a new bottle but had been used before. Heacknowledged the plaintiff told him he did not like scotch and did not drink it. The defendantis unable to say how much either one of them consumed but he is certain they each had no lessthan two beer and two glasses of scotch. He estimates each glass would have contained about fourounces of liquor. [19] The defendant denies he administered any drug to the plaintiff.
[20] Prior to this incident the plaintiff and his wife had been experiencing difficulties intheir marriage. The plaintiff attended his general practitioner who diagnosed a clinicaldepression. He prescribed Paxil. The dosage had been gradually increased to 30 mg a day andthis amount was being consumed by the plaintiff on April 19 and 20, 2001. Alcohol consumption isnot recommended for any person using Paxil. [21] W. K. Jeffery, a toxicologist, testified on behalf of the plaintiff. He says that if sevencans of beer and two one ounce drinks of scotch were consumed some alcohol would have beendetected in the urine at 5:30 a.m. If two cans of beer and a sip of scotch were consumed hewould not expect to find any alcohol in the urine at that time. [22] Mr. Jeffery testified the drug GHB takes effect within 10 to 30 minutes of ingestion and http://www.courts.gov.bc.ca/jdb-txt/sc/04/08/2004bcsc0889.htm[25/11/2010 4:03:40 PM] its symptoms last three to four hours. A light to moderate dose can produce relation, euphoria,muscle relaxation, drowsiness, tremors, amnesia, nystagmus and dilated pupils. The drug iseliminated from the human body very quickly and is usually not detectable in urine six to twelvehours after ingestion. [23] After the incident the plaintiff was off work for about five weeks. He was seen by apsychiatrist, Dr. Azim, who diagnosed post traumatic stress disorder (PTSD) and a majordepression. His anti depressant drug, Paxil, was increased to 40 mg. per day and he remains onthat dosage to this day. [24] It is fair to say that the events of April 19-20, 2001 have consumed the defendant. Hereports having intrusive nightmares, intrusive memories and sleeplessness. He developed a senseof insecurity which remains to this day. He is quick to anger and no longer the “happy go lucky”person he used to be. He began to drink excessively. He felt humiliated and experienced a lossof libido. Eventually he and his wife separated. He has experienced suicidal ideations andsocial withdrawal. [25] The theory of the plaintiff is that he was administered a drug, likely GHB, and thensexually assaulted by the defendant. His counsel argues that, based on the symptoms reported bythe plaintiff and on what was said by the toxicologist and by his general practitioner, Dr. LeonBard, and by Dr. Roy O’Shaughnessy, a psychiatrist, it is more probable than not that theplaintiff was drugged by the defendant on the night in question. [26] It is the submission of counsel on behalf of the plaintiff that the evidence of theplaintiff should be accepted. He argues that the negative blood alcohol finding taken from theurine sample supports his client’s recollection that he only had two beers and a sip of scotch. He relies heavily on the symptoms his client experienced following the event supported by thetestimony of expert witnesses. In his submission the evidence of the plaintiff should beaccepted and the evidence of the defendant should be rejected because it is the fabricated storyof a sexual molester who subdued his victim with a noxious drug.
[27] There can be no doubt the parties engaged in sexual activities. The defendant says theseacts were consensual and he bears the burden of proof of that defence, on a balance ofprobabilities. [28] I recognize the importance of these proceedings to the well being of the plaintiff. Unfortunately, I have concluded that his evidence cannot be relied upon. He says hisrecollection of the event is not complete. I find he had at least two beer and two drinks ofscotch as described by the defendant. He consumed this during a period of time when he wascautioned not to consume alcohol because he was on a prescription drug, Paxil. One can onlyspeculate on what the impact of the alcohol was in these circumstances. The plaintiff wasargumentative and evasive during cross examination. His narrative was more in the nature of whatmust have happened, because he cannot accept what actually took place. I am satisfied hisevidence cannot be relied upon.
[29] His evidence of lack of consciousness and limb paralysis is inconsistent with the fact thathe made a telephone call to his wife at 2:00 a.m. He has no explanation for his being in aposition of anal intercourse. It is not a position that could be forced upon him by thedefendant. His ability to drive home at approximately 5:00 a.m. cannot be ignored. [30] In addition, I am unable to rely upon the results of the urine sample. While it was indeeda urine sample, it is noted as blood. The time of the taking of the sample is wrong, if it isindeed a sample of the plaintiff’s urine. He was at home at the time the sample is said to havebeen taken. On a matter of this importance I am not at all confident the sample was a sample ofthe plaintiff’s urine. None of the usual precautions were taken to ensure continuity of thesample. [31] I accept the evidence of the defendant, preferring it to that of the plaintiff. Whereverthere is a conflict in the evidence I have relied upon his version of events. With the exceptionof his estimate of alcohol consumption, the evidence is consistent with what he told theplaintiff in telephone conversations following the event, recorded by the plaintiff unknown tothe defendant. [32] On a consideration of the evidence I am unable to say why there are substantial gaps in thememory of the defendant. I am satisfied he was not administered a drug and in particular, wasnot administered any GHB. No doubt the alcohol and the Paxil were incompatibles, but whetherthey combined to cause gaps in the plaintiff’s memory is not a conclusion I can draw from theevidence before me.
[33] As difficult as it might be for the plaintiff to accept, I am satisfied the sexual actsthat took place between the parties, as described by the defendant, were consented to by theplaintiff. [35] The plaintiff has made serious allegations against the defendant that if true, wouldconstitute criminal conduct. In these circumstances I am satisfied the defendant is entitled torecover special costs.
[36] Before the trial the defendant brought a motion for an order that the plaintiff be found incontempt of court. The plaintiff says the application was frivolous, vexatious and bound tofail. The motion was adjourned generally. The plaintiff now wants to have that motion set forhearing. He seeks a dismissal of the motion and an order for special costs. If this motion forcontempt of court is proceeded with I am not seized of the matter and it may be heard by the http://www.courts.gov.bc.ca/jdb-txt/sc/04/08/2004bcsc0889.htm[25/11/2010 4:03:40 PM] http://www.courts.gov.bc.ca/jdb-txt/sc/04/08/2004bcsc0889.htm[25/11/2010 4:03:40 PM]

Source: http://lklaw.ca/wp-content/files_mf/4630.pdf