Advisory: This story has graphic details from a sexual assault trial.
A Victoria man has been found not guilty of sexual assault, unlawful confinement and threatening to harm a young woman he met online in November 2018.
Consent was the main issue at Nicholas Johnston’s week-long trial in B.C. Supreme Court. On Thursday, Justice Brian MacKenzie was unable to decide whether the young woman consented to be bound with zip ties and blindfolded during sex with Johnston on the night of Dec. 2, 2018.
Faced with two dramatically different versions of what happened, MacKenzie said he was unable to reconcile conflicting evidence on the salient points.
“I find the evidence of Mr. Johnston, in combination with the evidence of [the young woman], does leave me with a reasonable doubt as to whether she consented to the mask or her wrists being bound during sexual activity, or if she did consent, whether that consent was obtained by force, or threats, or fear of force from Mr. Johnston,” said MacKenzie.
The woman, whose identity is protected by a court order, testified that she endured a planned, savage, prolonged confinement and sexual assault that left her fearing for her life.
Johnston denied the allegations, saying the woman consented to the sexual activity, including the zip ties and the sleeping mask.
He testified that he told the woman on the drive to his home that he had a fantasy about wanting to bind and blindfold her. He asked her if she had ever used restraints before and he testified that she said she had used soft handcuffs.
The woman testified that Johnston didn’t suggest to her that he wanted to get involved in bondage sex. She testified that he brought zip ties and a mask into the bedroom and “he was suddenly straddling her, putting a pink sleeping mask on her and putting his hand over her nose and throat and trying to suffocate her.”
She testified that he forcibly took her arm and tried to put a zip tie on her wrist but she struggled to prevent him from doing that.
“I think he said something like ‘The harder I make it, the harder it will be,’” she testified.
The woman did not agree to have her wrists bound but “I couldn’t get away from him,” so she relented, keeping her wrists far apart so the zip tie wouldn’t be too tight, she testified.
Johnston’s version was dramatically different, MacKenzie noted.
He testified that he came into the bedroom and asked the woman to move her hands behind her back so he could put a tie on her wrists. The young woman asked if she could take the tie off and he said she could if she wanted to.
Johnson testified that he asked her if he could put the mask over her eyes and she agreed. He testified that he said: “If you’re uncomfortable, tell me to stop.”
The young woman testified that Johnston took her upstairs, where under her blindfold, she could see a white sheet and tarp on the ground. She freaked out, pulled her wrists out of the zip ties then took the mask off and saw a camera on a tripod.
She threw his laptop downstairs. Then he became angry and punched her in the stomach.
“I think I asked: ‘Are you going to kill me?’ ” she testified. But he did not respond.
The young woman testified that she realized if she wanted to survive she needed to be calm so she apologized to Johnston for acting crazy. She went downstairs and had sex with him while fearing for her safety.
Johnston testified she wasn’t bound or blindfolded when he took her upstairs. He agreed he was angry when she threw his laptop downstairs, but denied punching her in the stomach.
They went downstairs and he apologized for yelling at her. He testified that they went to the bedroom because the woman wanted to have sex.
During cross-examination, Johnston acknowledged he prepared for his fantasy by buying black cable ties, a sleeping mask and duct tape to bind the woman’s wrists if she agreed. He set up a camera and tripod in the loft to take photos of the woman in bondage or the two of them having sex.
Johnston also acknowledged he had a dental dam and a speculum in his home to use in sexual activity with willing partners, but testified he did not plan to use either device with the young woman.
MacKenzie found Johnston to be consistent and not shaken in his evidence. “Mr. Johnston was forthright about the use of medical and dental devices if he had a willing partner to participate in sexual activity with these items. His acknowledgment of this unique sexual proclivity was straightforward and honest, even though it portrayed him as a deviant in certain sexual practices,” said the judge.
MacKenzie also found the young woman to be a relatively forthright and credible witness.
