Jury begins deliberation in Kelowna sexual assault case

Photo: Colin Dacre

Reader advisory: This story contains descriptions of rape and sexual assault

A 12-person jury has begun deliberating on the fate of 27-year-old Kelowna man accused of sexual assault, after 10 days of trial.

Brandon Emslie was charged with sexual assault stemming from an October 2018 incident in his basement suite in the Kelowna area. A woman, who was 31 at the time of the alleged incident, claims Emslie raped her while the two of them were spooning naked in his bed.

Her identity is protected under a publication ban, and Castanet has referred to her as FC.

During her testimony early on in the 10-day trial, FC said she had gone to Emslie's home on the evening of Oct. 26, 2018. She testified the two were “spooning” naked in his bed around midnight, when he inserted his penis inside her without her consent.

“I felt that Brandon was going to initiate sexual intercourse, and he had placed his penis close to my inner thigh,” she testified back on May 12. “I became uncomfortable ... I said no, and he proceeded to rape me without a condom ... I had said no before he inserted his penis. He did it anyway, it was non-consensual.

“At one point he said something to the effect of 'it was just a couple of strokes' ... and he also said something to the effect that he 'enjoyed the risk.'”

FC stayed the night at Emslie's home and he drove her home the next morning. The two texted back and forth for several days after the incident, until FC reported the assault and attended Kelowna General Hospital five days later.

“A lot of people going through this take time to process, I was one of those people,” she testified.

“The shock factor of something so heinous and something that had hurt me so deeply; I was in disbelief that someone would intentionally do that to me, victimize me that way for their own pleasure, or gains, or enjoyment ... I was processing it.”

In his defence, Emslie says FC never told him "no," and he believed she had consented to the sexual activity through her actions and her “dirty talk.” Defence counsel Joe Gordon said Emslie “honestly but mistakenly believed she had communicated consent.”

He also pointed to a text message she sent him the next morning that read “I really had a nice time.”

Gordon contends that FC reported the incident as a sexual assault after Emslie stopped speaking with her, and Gordon questioned her motives in the case. He also questioned the reliability and credibility of her testimony and described her as a “sneaky witness.”

Emslie denies she had ever previously discussed the requirement that he wear a condom if they were to have sex. FC adamantly testified she had told that on several prior occasions.

Ultimately, the case comes down to whether the jury believes Emslie or FC about what occurred on the night in question. Crown prosecutor Jason Hatherley said FC's testimony is “at odds with every important aspect of Mr. Emslie's testimony.”

“It was not different interpretations of the same event,” Hatherley said. “They were entirely different events as told by the two witnesses.”

Hatherley also noted to the jury that silence cannot constitute consent.

Now that the jury has begun deliberation, they may come to a decision at any time. The 12 jurors must come to an unanimous decision in the case, or it will be considered a mistrial.