R. v. Lernowich

2025 BCSC 2045 R. v. Lernowich

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lernowich, 2025 BCSC 2045 Date: 20251016 Docket: 35753 Registry: Vancouver Rex v. Jarrett Joseph Lernowich Restriction on publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify the complainant, referred to in this judgment by the initials T.R., or a witness, referred to in this judgment by the initials P.J. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Fowler Oral Reasons for Judgment Counsel for the Crown: J. Zondervan Counsel for the Accused: J. Oppal M. Rajaguru, Articled Student Place and Dates of Trial: Vancouver, B.C. October 6-10, 14-15, 2025 Place and Date of Judgment: Vancouver, B.C. October 16, 2025 Table of Contents INTRODUCTION.. 3 LEGAL PRINCIPLES. 3 Offence Charged - Sexual Assault 4 Overview of the Evidence. 4 The Complainant T.R. 4 Ms. Drebett 8 P.J. 9 Admissions of Fact 10 ANALYSIS. 12 CONCLUSION.. 17 POSTSCRIPT. 18

INTRODUCTION [1] Mr. Lernowich is charged that on or about the 28th day of October, 2022, at or near Sechelt, in the Province of British Columbia, he did sexually assault T.R. contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. [2] The Crown called five witnesses, the complainant, T.R., two police officers, a sexual assault nurse examiner and a male, P.J., who was present with T.R. during much if not all the early morning hours when the relevant events unfolded. [3] Mr. Lernowich elected not to testify.

LEGAL PRINCIPLES [4] In every trial the accused is presumed to be innocent. The Crown bears the onus to displace that presumption of innocence by proving beyond a reasonable doubt each element of the offence with which the accused is charged. [5] Proof beyond a reasonable doubt means that I must be sure of the accused's guilt before I can convict. While proof beyond a reasonable doubt is not the same as absolute certainty, it is much closer to absolute certainty than a balance of probabilities: R. v. Starr, 2000 SCC 40 at para. 242. [6] The standard of proof beyond a reasonable doubt applies to each element of the offence but does not apply to individual pieces of evidence: R. v. Morin, [1988] 2 S.C.R. 345, 1988 CanLII 8 (S.C.C.), at para. 11. [7] A reasonable doubt is one based on reason and common sense. It is not an imaginary or frivolous doubt, but rather it is one that is logically derived from the evidence or the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, 1997 CanLII 319 (S.C.C.), at para. 39. [8] Although there was some direct evidence in this case, because of the frailties and gaps in the memory of the complainant, much of the evidence in this case, particularly as it relates to the elements of the offence is circumstantial. Therefore, I must remain mindful of the admonition that inferences consistent with innocence do not have to arise from proven facts:

R. v. Villaroman, 2016 SCC 33, at para. 35: [ ] Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. Offence Charged - Sexual Assault [9] The offence of sexual assault requires the Crown to prove beyond a reasonable doubt both the actus reus and the mens rea of the offence. [10] The actus reus is comprised of the following elements: 1. The accused applied force to or touched the complainant directly or indirectly; 2. The touching or application of force by the accused was of a sexual nature; and 3. The complainant did not consent to the sexual activity in question. [11] The mens rea of sexual assault is comprised of the following elements: 1. The touching by the accused was intentional; and 2. The accused knew, was reckless, or was wilfully blind, that the complainant did not consent to the sexual activity in question. Overview of the Evidence The Complainant T.R. [12] In October 2022, T.R. was living in Sechelt with her parents, having recently

broken up with her partner. The break-up was traumatic, and T.R. had begun to drink heavily which resulted in her admission to the local hospital for alcohol treatment. [13] On October 27th, 2022 she was discharged around noon from the hospital after a stay of seven to eight days. She did not want to leave but rather preferred to stay until she could commence treatment in Langley. After her discharge she went to her parents' home. [14] When she arrived, her parents were not there. She spent some time during the day organizing and getting ready to go to treatment. However, at around 9:00 p.m. she left to purchase some alcohol; she purchased two bottles of wine and a mickey of vodka. [15] After this, she decided to go to an area of Sechelt she knew as Raincity; it is comprised of supportive housing and a homeless encampment. Her ex-partner's apartment has a balcony which he would use to smoke, that overlooks this encampment. She sat by a fence underneath his apartment and started to drink hoping he would come out onto the balcony, and she would be able to talk to him. She drank about one third of a bottle of wine. [16] From where she was sitting, she heard people talking in the encampment. She wanted to talk to people who had addictions like her. She described herself being curious and interested in the psychology and sociology of addictions and wanted to ask people questions

about why they were in the encampment. [17] T.R. testified that she was invited into a tent by P.J., a person she knew in the community, and had been to 'meetings' with. P.J.'s cousin, was also present. T.R. testified that the "accused was there." She described the "accused" as having blond hair, that he was wearing a black hoodie, was pale and white, and seemed quite sickly. She was not familiar with him at all and has not seen him since that day. [18] There were others coming in and out of the tent. She believes they were buying drugs. She sat close to P.J., talking and drinking. Alcohol was being passed around. She recalled that it was mainly P.J. and her that were drinking. [19] T.R. described being not very intoxicated by this point in the evening. She felt tired and had a headache. [20] In the sequence of her testimony, T.R.'s next recollection was being taken to Porpoise Bay in a vehicle with P.J., who had to work there. When she arrived, she went into an Arco trailer where other people were working. She recalled three people: a Caucasian man who was working on a computer; a French-Canadian man who was very talkative; and a secretary who was also working on a computer. [21] T.R. was unable to recollect how long she stayed at the trailer. [22] Her next recollection was purchasing cigarettes with P.J. at a gas station. She recalled that P.J. had her bank card. She recalled

that P.J. was with her, and they walked the five minutes it took back to Raincity together. [23] When she was back at Raincity, P.J. left and then a woman stole her cigarettes. The woman was screaming at and kicking T.R. In cross-examination she confirmed that this woman kicked her more than once on the legs. [24] T.R. testified that she then returned alone to the same tent she had been at earlier. She recalled that it was daytime, around 11 in the morning to midday. She recalled it was "really sunny". The only person present was the accused. At that time, she described her level of intoxication as "not drunk". [25] When T.R. returned to the tent the only person in the tent was the accused; P.J. had gone home. The accused was sitting down in the corner close to the doorway to the tent. T.R. was looking for her coat and toque. T.R. recalled there was some interaction with the accused, some conversation, but she cannot recall what it was. [26] T.R. testified that her next memory was the accused blowing some kind of dust at her, which landed on her face, in her hair and onto her shoes. Further on in her evidence, T.R. described it as like fairy dust, pink, lots of sparkles - "something her daughter would have wanted to play with." [27] T.R. recalled that she then saw the accused coming towards her, naked, with an erection. He was not naked when he blew the fairy dust at her. She

lost all memory after that. [28] T.R.'s next memory was wandering around, not knowing where she was. She recalled an older homeless gentleman had found her and brought her back to Raincity where he brought her into his "box". T.R. recalled sensing everything being distorted, voices sounded warped, she felt like she was in a tunnel and that her muscles would not work. She had never had this experience before. She concluded that she must have been drugged. [29] After she managed to get out of the box, T.R. went to the office at the supportive housing complex to ask for help. She felt dehydrated and unwell. When asked if she had any sensation of injury, T.R. testified that she felt a lot of pain in her legs. She told two ladies in the office that she was "pretty sure she had been sexually violated." Staff called the RCMP. [30] When asked in court why she felt that she had been sexually violated, T.R. testified that she knew her body, she was self-aware, she just felt something was not right. [31] In cross-examination T.R. testified that she told both the investigating officer, Cst. Cyr and the Sexual Assault Nurse Examiner, Ms. Drebett, about the pink fairy dust, because she had the substance on her boots and in her hair. [32] Both Cst. Cyr and the Nurse, Ms. Drebett, testified that they would have made a note of any evidence of drugging, and neither recorded being told by T.R. of

any substance being blown at her or onto her. [33] Furthermore, in cross-examination T.R. acknowledged that she did not tell Cst. Cyr or other police officers about being driven to Porpoise Bay, stating that since the event she had regained some very good memories. She acknowledged that the accused was not at Porpoise Bay. [34] T.R. acknowledged during cross-examination that she had lay-down with the accused, because he had asked her to and she felt sorry for him. Her recollection of when she lay down with the accused was not consistent. At trial she said it was right at the beginning of the encounter with the accused; in her statement to the police she said it was later-on. [35] After a ruling on admissibility, T.R. was questioned about her statement to Cst. Cyr that P.J. was making out with her. T.R. adopted that statement and confirmed that it had happened, after P.J. had grabbed her face. Ms. Drebett [36] Ms. Drebett has been a forensic nurse examiner since 2010 and a nurse since 2002. She has conducted approximately 45 sexual assault examinations. [37] Ms. Drebett was not qualified to provide expert opinion evidence, and therefore her evidence was limited to what she observed and what exhibits or samples she collected. [38] After interviewing T.R., she conducted a head to toe examination looking for injuries and potential sources of DNA. [39] After observing a white

substance in the crotch area of T.R.'s underwear, she placed the underwear in an envelope and provided them to the police. [40] Ms. Drebett observed multiple marks on T.R.'s body, however no evidence was presented as to either the cause or the age of these observed marks. While it is clear some are injuries, because T.R. told her what caused it, for example "it was a burn" unrelated to the alleged incident, it is unclear what most of the observed marks were, or how, if at all, they related to the alleged incident. [41] Ms. Drebett also conducted an anogenital exam. The following observations were noted: 1. Right labia minora, redness, 1-2 cm length; 2. Posterior fourchette, 6 o'clock, abrasion, 0.5 cm; and 3. Left labia minora, redness 1-2 cm. [42] In addition, a "blind swab" was taken of the inside of the vagina. A blind swab involves 'pushing' the swab through the external genitalia into the vagina and using a circular motion collecting a sample. P.J. [43] P.J., 51 years old, has lived on the sunshine coast his whole life. He is currently unemployed but had previously worked as a chief safety officer at a construction site. [44] He testified that he was not personally familiar with T.R. in October 2022 but had seen her at A.A. or N.A. meetings in various contexts. People do not usually speak to each other at meetings. [45] He testified to attending the tent city and hearing

T.R. commenting outside that she had cigarettes and alcohol. People were telling T.R. to fuck off. He thought she was just trying to find somewhere safe. He recalled it was a stormy night. [46] T.R. entered the tent and was present in the tent for the remainder of the evening until it was light outside. Also, initially present were Stephanie, Kelsea, "Frenchie," and Jay. [47] P.J. identified Jay as Mr. Lernowich, having known him for about a year prior to the incident. He testified that Stephanie was Jay's girlfriend. [48] He testified that initially, T.R. sat down next to him. Drinks were shared amongst the occupants, including the drinks that T.R. had brought. Eventually Stephanie left, as did Frenchie. Stephanie did not return; Frenchie returned and left again. [49] Eventually T.R. was cold; she joined Jay on his mattress, and they laid together under the blanket. They were lying side by side, with both of their faces facing P.J. They were talking but P.J. did not know what they were talking about. They were under the blanket till day light, when the storm finally ended. [50] P.J. did not sleep but was not paying attention to T.R. and Jay for the whole night. Kelsea fell asleep against P.J.. [51] P.J. did not know what was happening between T.R. and Jay. He said that he could only see their heads. At some point, he left to use the bathroom. So did Mr. Lernowich. [52] At some

point after it was light, T.R. got up and asked P.J. to buy more alcohol with her card because she said she wanted to party. However, P.J. subsequently said that she wanted him as a bodyguard. This was in the morning the next day. T.R. left the tent and argued outside of the tent with Frenchie. She had two arguments, and then left, never returning for her card. [53] In cross-examination, he described himself as intoxicated but not blackout drunk. [54] P.J. denied ever kissing or making out with T.R.. Admissions of Fact [55] Pursuant to s. 655 of the Criminal Code, the following facts were admitted at the trial: 1. The human body is composed of cells that contain Deoxyribonucleic Acid ("DNA"). With the exception of identical twins, each person has DNA that is unique to him or herself. An individual's unique DNA is the same throughout the body and remains the same throughout that individual's lifespan.

2. An individual may leave bodily fluids or other cells on items with which they have had contact. That person's DNA can then be extracted from the bodily fluids or cells. Extracted DNA may be identified and examined through the use of established scientific techniques. These processes allow comparison of DNA which has been left on an item to the DNA of a particular person.

3. On October 28, 2022, at approximately 4:20 p.m. T.R. attended the Sechelt Hospital for a sexual assault examination.

4. During the examination, the forensic nurse examiner took a number of swabs, some of which were later submitted for DNA analysis at the National Forensic Laboratory in Surrey, B.C. In addition, T.R.'s underwear was seized.

5. A DNA sample was collected from Mr. Lernowich, and compared to profiles generated from the swabs taken during T.R.'s sexual assault examination.

6. DNA analysis included the following exhibits (collectively, the "DNA exhibits"): a. An internal genital swab taken from T.R. ("Exhibit A-1"); b. Underwear ("Exhibit 5").

7. Exhibit A-1 contained the DNA of both T.R. and Mr. Lernowich. No other DNA sources were detected.

8. Exhibit 5 contained the DNA of both T.R. and Mr. Lernowich on the middle left crotch seam (AB), interior middle crotch (AC) and the middle back (AD). No other DNA sources were detected.

9. The middle back of Exhibit 5 tested positive for the presence of semen.

10. The continuity of all exhibits is admitted. The condition of exhibits was not tampered with, contaminated, or altered except as necessary for forensic testing, and when so altered, was done so in accordance with accepted forensic procedures. The testing and analysis of exhibits described in these Admissions was conducted by qualified laboratory personnel in accordance with established scientific methods and procedures.

ANALYSIS [56] The Crown must prove beyond a reasonable doubt all the elements of the offence of sexual assault. [57] In respect of the actus reus, the Crown must prove each of these elements: 1. The accused applied force to or touched the complainant directly or indirectly; 2. The touching or application of force by the accused was of a sexual nature; and 3. The complainant did not consent to the sexual activity in question. [58] There is no direct evidence that the accused applied force or touched the complainant directly or indirectly in the manner of a sexual nature. The complainant has no memory of anything after, as she alleges, she observed the accused walking towards her naked with an erection shortly after she had a pink powder blown into her face. [59] In respect of these recollections, I do not accept the complainant's evidence. [60] Having considered all the evidence, I accept P.J.'s evidence. Crown counsel urged me to accept his evidence. There is no reason to conclude he was not credible. In addition, I find that what he could recall was reliable. [61] T.R.'s evidence is manifestly inconsistent with P.J.'s evidence. For example, P.J., who was in the tent with T.R. and the accused for the whole stormy night until it was light in the morning, did not testify about going to Porpoise Bay; he did not observe the accused naked walking towards the complainant; and he did

not see any powder being blown into T.R.'s face. [62] In addition, P.J. did not see T.R. to be highly intoxicated or affected adversely by some unknown substance. [63] Finally, P.J. emphatically denied making out or kissing T.R. [64] The fact that it appears T.R. has created two significant events that I conclude did not happen, the 'trip' to Porpoise Bay and being kissed by P.J., in conjunction with all the other obvious frailties with her evidence, for example her recollection of telling Cst. Cyr and the nurse about the pink powder when both denied that she did, mean that I must be very cautious about accepting any portion of her evidence. [65] I do not accept that the accused or anyone blew a pink fairy dust into her face. Nor do I accept her evidence that she saw the accused naked walking towards her with an erection. Based on the unfolding narrative of the events during the early morning hours of October 28, 2022, P.J. would have been present had either of these events in fact occurred. He did not see either. [66] T.R. testified that in the morning she was "pretty sure she had been sexually violated." When asked why she felt that she had been sexually violated, T.R. testified that she knew her body, she was self-aware, she just felt something was not right. [67] However, T.R. did not provide any evidence about why she had this feeling: she did not complain about soreness

or wetness in or around her genital area; she did not testify that her clothes had been interfered with; nor did she have even a vague recollection of the accused doing or saying anything consistent with sexual activity. [68] For example, in R. v. Polo Cedeno, 2005 ONCJ 91, the complainant had almost no recollection due to extreme intoxication of events surrounding an alleged sexual assault, but provided testimony that her "pants were undone, her underwear askew and that she was wet between her legs." [69] In R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.), a highly intoxicated complainant, with little to no recollection of events at the time of the alleged sexual assault, testified that she awoke naked next to the accused in his bed. Her clothes were in a bundle nearby. She described soreness in her vagina. [70] And finally, in R. v. Capewell, 2020 BCCA 82, another case relied upon by the Crown, the complainant, who had almost no memory because of the involuntary ingestion of lorazepam, provided snippets of memories consistent with being sexually assaulted, for example recollection of her underwear being removed and the accused saying to her "you are so tight." [71] Given my concerns about the overall reliability of the complainant's evidence, I do not consider the complainant's recollection that "she was pretty sure she had been sexually violated" because "she just felt

something was not right" is sufficiently reliable to be probative on the question of whether the accused had applied force to the complainant. [72] In addition, it must be recalled that at the time the complainant communicated this feeling to staff at the supportive housing community, she was experiencing broad sensory disruptions - voices sounded warped, she felt like she was in a tunnel and had a sense that her muscles would not work. [73] To be clear, I am not suggesting that in every case, a complainant's sensation of having been sexually violated would have no probative value. I have simply concluded that on the facts of this case, the complainant's evidence of what she was sensing was not sufficiently reliable to be probative. [74] This leaves for consideration the forensic evidence. The question I must ask myself is whether this evidence in conjunction with the rest of the evidence, leads me to conclude that the only reasonable inference is that the accused applied force to or touched the complainant directly or indirectly in a sexual manner. [75] It is important to appreciate that I have not had the benefit of any expert opinion evidence. I do not know, and I certainly cannot speculate, about what the observations of T.R.'s external genitalia by Ms. Drebett means. [76] For example, I do not know whether her observations of redness on the right and left labia are signs

of injury from which I can infer an application of force. Likewise, I do not know what could have caused a 5mm abrasion to the posterior fourchette. [77] I note that in other cases, for example Capewell, the court was assisted by expert opinion evidence that bruising and tenderness at the opening of the complainant's vagina was consistent with force being used and consistent with sexual penetration, either consensual or non-consensual. [78] However, I must decide this case based on the evidence tendered at this trial, not based on what experts may have said in other cases. [79] In respect of the DNA evidence, again I have not had the benefit of expert evidence to assist me in understanding what conclusions or inferences I can reliably draw from the admissions. [80] I have no information about the source of the DNA that has been matched to the accused. I do not know whether it came from a bodily fluid or from other cells. Most importantly, I do not know whether the source of the DNA that was located was the semen that was also located on the underwear. [81] I understand that DNA was found in the middle back of the underwear, and that the middle back of the underwear also tested positive for the presence of semen. However, I am not prepared to conclude that just because these two things were found in the same general area of the underwear, the source of the DNA must have been

semen. [82] Furthermore, I have no evidence that the white substance observed by Ms. Drebett on the crotch of T.R.'s underwear was semen. There is no evidence in the admissions that the middle left crotch seam (area AB) and interior middle front crotch (area AC) tested positive for semen. The admissions are that the middle back portion of the underwear (area AD), which is not an area where a white substance was observed by Ms. Drebett, tested positive for semen. [83] All of this stands in contrast to evidence in other cases. I note for example in R. v. D.A., 2018 ONCJ 307, a biologist provided the opinions that the quantity of DNA found was consistent with its source being a bodily fluid such as saliva or semen, and further that it was consistent with oral sexual contact or penile penetration. [84] I note further that in R. v. Bungay, 2021 BCCA 123, the quantity of DNA that was located was one basis upon which the expert discounted the possibility of passive or innocent transference. [85] In respect of the vaginal swab, again it is important to understand the limits of what this swab can reveal. The swab was not taken from within the vagina. The swab was pushed through the external genitalia into the vagina. It is therefore impossible to know whether the source of the DNA on the swab was from inside the vagina or from the external genitalia. [86] Given that it is reasonable to

conclude that the external genitalia were in contact with T.R.'s underwear, it is impossible to discount the source of the DNA on the swab from being transference from the DNA that was located on T.R.'s underwear or vice versa. [87] The admissions explicitly recognize that DNA can readily transfer between individuals - "An individual may leave bodily fluids or other cells on items with which they have had contact." I have not had the benefit of expert evidence to assist me in understanding the extent to which the evidence of DNA that has been admitted in this case is or is not consistent with what I will describe as a passive transference. [88] It must not be forgotten that T.R. was in the accused's bed for multiple hours. Given what is stated in the admissions about individuals leaving cells on items with which they have had contact, it is not unreasonable in this case to be concerned about how the accused's DNA ended up on TR's underwear and the vaginal swab. [89] I readily appreciate that I must assess all the evidence and that the standard of proof beyond a reasonable doubt does not apply to individual pieces of evidence. But neither can proof near certainty be arrived at by compounding individual pieces of evidence each of which has an unclear meaning. Nor can I engage in the fallacy of circular reasoning, whereby an individual piece of evidence is given meaning by

assuming the very thing it is being relied upon to prove. [90] I have concluded that the DNA evidence as set out in the admissions, even when considered along with the very limited other evidence that is relevant to proof of the actus reus, is not a sufficiently cogent basis upon which I can conclude to the high standard of proof required that the accused applied force to the complainant and thereby committed the actus reus of sexual assault. [91] I am simply not satisfied that the only reasonable inference from the forensic evidence, being the DNA admissions and the observations of Ms. Drebett, considered in the context of the other evidence, for example T.R. lying in the accused's bed for multiple hours, and in the absence of any other evidence consistent with an application of force to the complainant, for example, the complainants clothing being askew or removed, is that the accused applied force to the complainant. [92] Having considered all the evidence, and the absence of evidence, I am left unsure that the accused applied force to the complainant. Without proof that the accused applied force to the complainant, either directly or indirectly, the actus reus of the offence of sexual assault cannot be established.

CONCLUSION [93] The Crown has failed to prove the actus reus of the offence of sexual assault beyond a reasonable doubt. Given that conclusion I do not need to consider any of the other issues in respect of consent or capacity to consent, or the mens rea for the offence. [94] Given that the Crown has failed to prove an element of the offence, they have failed to displace the presumption of innocence. [95] Mr. Lernowich, please stand. On the single count in the indictment, the sexual assault of T.R., I find you not guilty.

POSTSCRIPT [96] Like many sexual assault cases, this trial was complicated by the need to consider during the trial the admissibility of presumptively inadmissible evidence of other sexual activity. As the law in this area continues to evolve it is not always readily apparent when an application is required. For example, there is no bright line that readily distinguishes in every case sexual activity that forms the subject matter of the charge from other sexual history evidence. [97] In addition, very recent changes to the common law now requires the Crown to bring an application if they intend to adduce sexual history evidence of the complainant: See R. v. Kinamore, 2025 SCC 19. Unsurprisingly, it was not immediately evident that a comment made by the complainant to the Sexual Assault Nurse Examiner would require an admissibility hearing. [98] What this means practically, at least in the short term, is that until the scope of when either the statutory or common law regimes requires that an application be brought becomes more certain, these applications will continue to arise during the trial. Although much can and should be done by counsel to avoid this, there will still be applications that arise during the trial. [99] In this case, the disruption to the unfolding of the trial and the ability to finish the trial within the time allocated, was ensured by both counsel working

cooperatively fulfilling their ethical responsibilities including to the administration of justice. For example, both counsel agreed to waive strict compliance with notice requirements enabling applications to be heard quickly. Crown counsel pre-emptively took steps to ensure that counsel was very quickly appointed to represent the complainant. [100] Without this level of cooperation, sexual assault trials will inevitably be very difficult to manage, court time will be lost and witnesses, particularly the complainant, will have to endure days or even weeks waiting to complete their testimony. [101] I wish to commend and thank counsel for their management of this difficult trial. Their cooperation did not in any way undermine or compromise their respective cases, but did much to enhance the proper administration of justice. "The Honourable Justice Fowler"