In R. v. R.K.K., 2022 BCCA 17, January 20, 2022, the accused was convicted of the offence of sexual assault. The complainant (J.K.R.) testified that non-consensual sexual intercourse occurred. The accused testified that the intercourse was consensual.
After the incident occurred, the accused took a photograph of the complainant. The Court of Appeal described what occurred in the following manner (at paragraph 27):
R.K.K. took a photograph of J.K.R. on the bed with his cell phone and told her he would send it to her co‑workers and relatives. The photograph depicts J.K.R. lying on the edge of a bed, her closed legs over the end of the bed, clothed from the waist up, clutching something covering her pelvic area. Her face is turned away from the camera so that her facial expression is not visible.
In convicting the accused, the trial judge made the following comments concerning the relevance of the photograph:
I believe the complainant’s detailed description of what took place in the bedroom, including him positioning her at the corner of the bed, his holding of her arms, the weight of his body on her, the manner in which he used his legs, his animal like trance, and his repeated utterances of “let me feel you one time”.
The Photograph that the accused admittedly took of the complainant afterwards is consistent with that evidence and is inconsistent with the consensual love‑making of a willing and sensual girlfriend.
The accused appealed from conviction. He argued that the trial judge “used speculation and stereotypes when he found the photograph was consistent with J.K.R.’s evidence of sexual assault, and was inconsistent with ‘consensual love‑making of a willing and sensual girlfriend’”.
The Court of Appeal:
The appeal was dismissed. The Court of Appeal concluded that the trial judge did not “use stereotypical reasoning in his analysis of the photograph” (at paragraphs 42 to 45):
In my view, the judge did not use stereotypical reasoning in his analysis of the photograph. His reasoning did not amount to a subjective assessment of what a hypothetical young woman would have looked like, or done, or felt in the situation. The judge tethered his analysis of the sexual assault count to an evidentiary base. He made common‑sense inferences grounded in the evidence and properly considered what J.K.R. looked like, did or felt given the context of the situation and her particular circumstances.
During the Crown’s cross‑examination of R.K.K., Crown counsel drew R.K.K.’s attention to the photograph, noting it depicted J.K.R. lying on the bed with her legs closed and her face pointed away from R.K.K. The Crown asserted J.K.R. had just told him she was interested in someone else and did not want to be in public with R.K.K. without that person. The Crown then asked R.K.K. if this looked like a woman who wanted to have sex and whether he had asked her to consent. He responded by saying they were always together, she always consented to having sex, and he did not need to confirm she was consenting. In closing submissions, Crown counsel drew attention to the photograph as depicting the trauma J.K.R. said she felt as she lay on the bed after the sexual assault and pointed out “there’s no compliant smiling sexy pose during sex … that [R.K.K.] testified to.” (R.K.K. alleged he had taken photographs of J.K.R. smiling and looking at him, but none of these photographs were in evidence at trial.) Crown counsel submitted it belied common sense that the photograph depicted R.K.K.’s version of consensual sexual intercourse.
Again, the judge did not find how a hypothetical woman, or a woman generally, would stereotypically look after consensual sex. Nor did he rely on such a finding to conclude that J.K.R. did, or did not, resemble this image to find R.K.K. guilty of sexual assault. The judge’s comment that the photograph “is inconsistent with the consensual love‑making of a willing and sensual girlfriend” was “infelicitous” and unnecessary in his analysis of the evidence, but was, in fact, drawn from and grounded in the evidence, and founded on J.K.R.’s particular circumstances.
I would not accede to this ground of appeal.