R v MGS, 2014 ABQB 775

Court of Queen ’ s Bench of Alberta Citation: R v MGS, 2014 ABQB 775 Date: 20141218 Docket: 111435285Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - MGS Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________

[ 1 ] Mr. MGS is accused of sexually assaulting his friend, L.C., in August 2004. Mr. MGS concedes that sexual activity took place but contends that it was consensual, or in the alternative that he had the honest but mistaken belief that it was. Mr. C. has no memory of the activity. The incident took place after a long celebratory evening of drinking and partying. [ 2 ] The issues then are whether the Crown has proven beyond a reasonable doubt that: 1) Mr. C. did not consent to the sexual activity and whether Mr. MGS knew that Mr. C. did not consent, or in the alternative 2) Mr. MGS had no honest belief that Mr. C. consented to the physical contact. [ 3 ] For the purpose of the

section 271 , the

section of the Criminal Code under which Mr. MGS is charged, “consent” means “the voluntary agreement of the complainant to engage in the sexual activity in question”. In the context of what happened in this case, as I will describe shortly, the Code , and case law, make it clear that no consent can be obtained if the complainant is incapable of consenting to the activity. [ 4 ] In this case, the Crown contends that Mr. C. was asleep and/or passed out when the incident occurred and therefore consent could not have been obtained or honestly believed to have been obtained. Mr.

MGS on the other hand contends that he was woken up by Mr. C. and it was him that initiated, and so obviously consented to, the sexual activity. [ 5 ] As is often the case in sexual assault cases, and as Mr. MGS testified, the question is one of credibility to a large degree. As such, I must instruct myself that: (1) if I believe Mr. MGS’s version of the critical events, I must acquit, (2) that even if I do not believe Mr. MGS, I must consider if his testimony raises a reasonable doubt, and if so I must acquit and (3) even if I am not left in doubt by the evidence of Mr.

MGS, I must determine if the Crown has convinced me beyond a reasonable doubt on the balance of the evidence of Mr. MGS’s guilt. [ 6 ] The evidence before me consisted of Mr. C. and Mr. MGS’s testimony, as well as the testimony of Mr. C.’s sister, Ms. J. H., and of a good friend, Mr. K.M. As well, there was a recording of part of a call between Mr. C. and Mr. MGS made on November 1, 2010, six years after the event. [ 7 ] There were many procedural questions that arose during the trial.

The main two were an application to allow similar fact evidence and an application that was going to be pursued pursuant to s. 267 to allow questions about the complainant’s sexual history. [ 8 ] The similar fact evidence application was abandoned by the Crown part way through the voir dire once the defence conceded that the sexual activity had taken place and that Mr. MGS’s sexual orientation was bi-sexual. Later, in cross-examination, Mr. MGS testified that he had been convicted of sexual assault in the past.

The details were properly not led in evidence. [ 9 ] The s. 267 application (which was never reduced to writing) was abandoned on the basis that I was to disregard the evidence led by the Crown through Mr. C.’s testimony about his heterosexual sexual orientation. So any questioning about whether Mr. C. had experimented sexually with men was not pursued. The Evidence [ 10 ] I will review the evidence that was led in three parts: 1) The partying and drinking leading to the parties going to bed 2) the sexual activity, 3) the next morning and later years. 1) The partying and drinking [ 11 ] Mr. MGS and Mr.

C. met in 1999 and became good friends. Mr. MGS lives in Vermilion, Alberta and is a cattle farmer and instructor at a local college. Mr. C. is a dairy farmer and lives in Innisfail, Alberta. They would get together at various events over the years and remained in close touch. They remained friends until 2010, when the complaints were raised against Mr. MGS. [ 12 ] Mr. C. and his family were showing their dairy cattle at an annual fair held in Olds, Alberta. They had been there during the week and Mr. C. called Mr.

MGS to come and join them for the closing night celebrations on the Saturday (even though the Cs, and friends helping them in the show, had to get up early the next morning to do some final chores at the fair). [ 13 ] Mr. MGS drove down to Olds from Innisfail with another friend and they arrived at the C. family stall around 8 pm. Mr. MGS had a beer at that time. Mr. C. had started drinking around 6 pm. [ 14 ] A group of partyers including Mr. MGS, Mr. C. and various friends (including Ms. H. and Mr. M.). The group went to a BBQ, then to a cabaret, and finally to a bar or two (Mr. MGS recalled two bars and Mr.

C. thought only one). People were mingling and in a festive mood throughout. Mr. C. and Mr. MGS were both drinking rye and gingers regularly through the evening. People took turns buying rounds of drinks. [ 15 ] Ms. H. and Mr. M. left around 2 am to return to a hotel room rented by the C. farm where many friends were “crashing” for the night. When they left, Ms. H. noted that Mr. C. appeared drunk and was running around. He was an outgoing person though and didn’t behave much differently when he was drunk. She felt that at that time of the night he was at an 8-9½ out of 10 drunk. [ 16 ] Mr. MGS and Mr.

C., amongst others stayed until the lights came on in the bar around 3 am. Mr. MGS said that they then went to a Tim Horton’s and had a sandwich on the way home. Mr. C. had no memory of that. Everyone was walking and Mr. C. opened the door to the room which was on the second floor.

[ 17 ] The room consisted of two double beds (I believe Mr. C. was mistaken when he thought that they were queen beds as all the others testified that they were double). Ms. H. and Mr. M. had already gone to bed in one of them. Mr. MGS, Mr. C. and Mr. K. C. (a cousin), initially got into the other bed. [ 18 ] Mr. MGS said that he took off his jeans and shirt and slept in his undershirt and shorts. He said that Mr. C. went to the bathroom and changed into some shorts since he was wearing jeans and didn’t wear shorts under them. Mr. K. C. shortly thereafter took the comforter off of the bed and slept on the floor.

Mr. C. was sleeping on the bed, facing Mr. MGS. There were others sleeping on the floor too. [ 19 ] Mr. C. indicated that he was quite drunk when he went to bed and that he passed out on the bed and didn’t waken until 5:30 the next morning. It was unclear what he was wearing in bed according to him. He denied that he had shorts on and noted that he would have been wearing jeans during the day and that he didn’t wear shorts underneath them. He wasn’t sure who he initially got into bed with and thought that Mr. MGS and his cousin were on the bed with him.

He said that he usually slept facing inwards or on his stomach. [ 20 ] Ms. H. testified that she was awoken when the others came storming into the room. She said that Mr. C. was very drunk at that point and could barely talk – he was a 10 out of 10 drunk (10 being black out drunk). He just fell into bed. She didn’t know how or when he had taken his jeans off and put on shorts. 2) The sexual activity [ 21 ] Mr. MGS’s testimony about the sexual activity that occurred is the following. Mr. MGS was asleep when he felt Mr. C. spooning behind him and rubbing his lower part of his body against Mr.

MGS’s lower part of his body. Mr. C. started grinding against his buttocks. At this point Mr. MGS was awake. He was surprised but it felt pleasurable to him. [ 22 ] Mr. C. then put his hand on Mr. MGS’s hip and then down to his crotch area and rubbed Mr. MGS’s penis. Mr. C. rolled onto his back and took Mr. MGS’s hand and put it on his penis. This lasted a minute perhaps. [ 23 ] Mr. MGS got up on his hands and knees and made eye contact with Mr. C. Mr. C.’s eyes were open. He then went down on Mr. C. and started performing oral sex on him.

He was doing this for a minute and a half to two minutes and he noted that Mr. C.’s breathing changed and his penis became more erect. [ 24 ] Mr. MGS heard noises from the other bed and looked up and made direct eye contact with Ms. H. who was asleep on the inside edge of the adjacent bed. He was incredibly embarrassed to be caught in the sex act and so he stopped what he was doing and rolled back on his right side. He heard someone go to the bathroom. [ 25 ] Mr. C. testified that he has no recall of any of this occurring and that he was asleep or passed out. [ 26 ] Ms.

H. said that she woke up and adjusted her eyes. It was dark in the room but she said that there was enough light coming in from outside to see. [ 27 ] She propped herself up and saw Mr. MGS’s head over her brother’s crotch area. Mr. C. was on his back and Mr. MGS was performing fellatio on him. She said that Mr. C’s penis was soft. She said that this took about five seconds. She made some rustling noises and Mr. MGS stopped and looked at her. She said that Mr. C.’s eyes were closed, he wasn’t making any noise and didn’t react when Mr. MGS stopped.

She felt that he was asleep. [ 28 ] She said nothing but instead got up and went to the bathroom. She then crawled back into bed but stayed awake and continued rustling around. Mr. C.’s shorts were around his knees or ankles and he remained that way after she returned to bed. The sheets were off – it was very hot in the room. She was awakened at 5:30 by the alarm. [ 29 ] She advised in cross-examination that she made no observations about how Mr.

C’s pants came off or what happened before her observations. 3) The next morning and thereafter [ 30 ] An alarm went off at about 5 or 5:30 am and those that had chores to do got up including Mr. C., Mr. M., and Ms. H. Ms. H. left the room and Mr. M. followed shortly afterwards. She testified that she was upset and told Mr. M. what she had seen. She said nothing to Mr. C., who joined them shortly afterwards. [ 31 ] Mr. M. said that he noticed that Ms. H. was upset and had tears in her eyes. He asked her what happened but she wouldn’t tell him.

He tried talking to her again later in the day but again she wouldn’t tell him anything. [ 32 ] The relationship between Mr. MGS and Mr. C. remained the same friendly way over the next several years. Ms. H. never said anything to Mr. MGS about what she had seen the next day or when she saw him on other occasions over the years. [ 33 ] Mr. MGS also never said anything to Mr. C. about their encounter. At the time he was seeking help from a counsellor to deal with his sexuality and he discussed the encounter with him.

He testified that he received advice from the counsellor and as a result of following it, he did not to say anything to Mr. C. He would only continue a sexual relationship with him if Mr. C. initiated it again. He was concerned that a sexual relationship would get in the way of their friendship. [ 34 ] Six years later Mr. C. called Ms. H. and said that he had seen something on a website about Mr. MGS. She said that she then discussed with Mr. M. about whether Mr. C. would “want to know”. She said Mr. M. told Mr. C. and subsequently Mr. C. called her about it.

[ 35 ] The Crown failed to lead any evidence from Mr. M. about these conversations six years later. Since Mr. M. said that he had not been told about the sexual activity at the time, it would have been interesting to know what his reaction was to being told about these events and then what exactly he told Mr. C. considering that Ms. H. only saw a few seconds of this interaction, in the dark, years before. [ 36 ] Mr. C. said that he was told by Mr. M. that he had been “sexually assaulted” by Mr. MGS while on their way to an airport.

At some point he spoke with his sister about it. [ 37 ] After speaking with his sister he called Mr. MGS. He was with a friend when he made this call. His friend suggested part way through the call that they should record it and they did so by putting their cellphones together. The friend was not called as a witness by the Crown. [ 38 ] After listening to the recording of the call that lasted about a minute, Mr. C. testified that the call lasted about five minutes. He said that he continued talking “a little bit” after the tape was shut down. Mr. C. wanted some kind of confession from Mr. MGS and Mr.

MGS said he’d get back to him about it. Mr. C. indicated that “He definitely could have made me keep my mouth shut so I wouldn’t have said anything. But he definitely didn’t have any sympathy for it.” He initially denied ever receiving another call from Mr. MGS in direct examination. [ 39 ] In cross-examination, Mr. C. was shown a printout of the call which indicated that it was 35 minutes long, not five minutes. Mr. C. had to then admit that the call was this long. He explained that the whole of the call was not recorded because he was not planning on recording it in the first place.

He denied that the reason Mr. MGS was unsympathetic was because he had told him that it was him who initiated the activity between them or that Mr. MGS had explained that to him. We don’t know what the friend would have said about this. [ 40 ] When pressed by defence counsel, Mr. C. also admitted that Mr. MGS did call back, but he missed it. He said that he never called him back. He denied that a message was left by Mr. MGS saying that he was not going to apologize since he had not initiated the activity. [ 41 ] Mr.

C. spoke to a friend who was a police officer about this and his friend advised him to report this to the police. He denied saying that the reason he reported to the police was because he was looking after the best interests of his sister. Then when pressed again by defence counsel he conceded that “part” of the reason was for her. He explained that she is emotional and can’t handle stress. So he thought that telling the police would help her “heal and move on”. [ 42 ] Mr. MGS agreed with Mr. C. that he may have sounded unsympathetic during the call because he didn’t feel that he had done anything wrong.

He said it was because Mr. C. who had initiated the activity so he wasn’t going to apologize for what had happened. The call lasted a long time and during this time they also spoke about the fact that he had been struggling with his bi-sexuality over the last few years with the help of a counsellor but that he had recently come to terms with it. [ 43 ] Mr. MGS agreed with Mr. C. that he may have sounded unsympathetic during the call because he didn’t feel that he had done anything wrong. He said it was because Mr. C. who had initiated the activity so he wasn’t going to apologize for what had happened.

The call lasted a long time and during this time they also spoke about the fact that he had been struggling with his bi-sexuality over the last few years with the help of a counsellor but that he had recently come to terms with it. [ 44 ] The transcript of the recording is as follows: Recording starts; Person 1: The counselor. Um, the fact that I picked two best friends that was, is, yeah I, I mean that absolutely astounded just that’s not how it works as a rule. Person 2: So why when my sister says she wakes up and hear, sees you sucking my dick and you noth, you didn’t do anything?

Person 1: No I touched you yeah and yeah yeah. Yep. Moment, momentary thing yeah. You know it’s like a wave and then it, it’s like Jesus Christ what am I doing. Stupid. Person 2: That’s why I can’t get around it there’s only three people. Person 1: Yes. At the moment I was extremely attracted to you and in a, in a physical way. I mean beside the fact that I think you’re one of the best craziest most fun loving guys around. Um, but yeah it, it just and I, I have since accepted who I am and um... Recording ends [ 45 ] Mr. MGS explained that he had a wave of emotion during the encounter and then when he saw Ms.

H. was awake he was very embarrassed that she had witnessed this encounter and he felt “stupid” as a result. He denied that he was making any kind of confession in the short bit that was recorded. Analysis [ 46 ] If I believe Mr. MGS about the initiation of the sexual encounter by Mr. C. and his consent throughout it, I must acquit. [ 47 ] The Crown argues that I should not believe Mr. MGS’s version of the events and find instead that Mr. C. was not conscious and incapable of consenting. The Crown bases his argument on the following: 1. Mr. MGS had motive to initiate the encounter as he was bi-sexual, found Mr.

C. handsome and was physically and

sexually attracted to him. Whereas Mr. C. had no motive because he was only a platonic friend with Mr. MGS. 2. The after the fact conduct by Mr. C. is important in that his emotional response to being told he was sexually assaulted shows that he didn’t consent, let alone initiate the act. Similarly with Ms. H., considering her upset reaction I can infer a level of certainty about what she saw. 3. Mr. C. was very drunk. On his own account he was 8½-9 out of 10, 10 being black out drunk and his sister said he was a 10. Mr. MGS agreed that it was possible that he could have been as described. This level of intoxication suggests that he passed out. 4. Mr. C.’s work

schedule meant that he would have been extremely tired when he went to bed. 5. Ms. H. corroborates that Mr. C. was unconscious as she saw him with his eyes closed making no sound and his penis was soft. 6. The transcript of the recording shows that he was apologizing for being “stupid” for initiating the sexual encounter. Since this tape was of conversation near the beginning of the call, based on the principle of res gestae it should be considered more reliable. 7. Mr. MGS’s after the fact conduct of not broaching the subject with Mr. C. means that he knew that Mr. C. was unconscious and would not remember. 8.

Mr. MGS wanted to keep his bi-sexuality secret so he sexually assaulted an unconscious person who would not remember. [ 48 ] The Crown has some interesting points, however none of them convince me that I should not believe Mr. MGS. I will deal with each argument in turn. Motive [ 49 ] Just because a person is attracted to another does not mean that they will necessarily initiate a sexual encounter. Mr. MGS admits that he became a willing participant once he says he woke up. [ 50 ] For legal and evidentiary reasons I do not know Mr. C.’s sexual history or how he may be motivated sexually.

After the fact conduct of Mr. C. [ 51 ] The fact that Mr. C. says he was upset when he was told that he was “sexually assaulted” is consistent only with him not remembering what happened that night. The fact that he could not remember is equally consistent with being asleep or doing some things while he was “black out drunk” meaning that he could not remember the next day after he sobered up. [ 52 ] In fact Mr. C. didn’t remember a lot of what went on that night and overall I found his evidence about that night to be very sketchy and unreliable. One example that is notable to me is how Mr.

C. wound up with shorts on that night. Both Mr. C. and Ms. H. testified that he simply passed out in bed – with his clothes on. Mr. MGS on the other hand said that Mr. C. went into the bathroom and changed into shorts before coming back to bed. All agreed that he had shorts on in the morning, so the “passing out” story could not be right. Instead what this example showed to me was that Mr. C. and Ms. H. had rehearsed their stories and when faced with some facts, they were not able to explain their way out of it. [ 53 ] Mr.

C. also did not remember a visit to a further bar (the Blue Yak), or going to Tim Horton’s on the way back to the hotel as described by Mr. MGS– whose evidence I accept on these points. [ 54 ] Further, Mr. C. had a very poor recollection of the length of the phone call – five minutes vs 35 minutes is quite a difference. In my view, he initially said the shorter time to try and suggest that the recorded part was the main part of the short conversation. One minute in 35 is a lot less of a proportion that one minute in five. [ 55 ] The other issue with Mr.

C.’s “after the fact conduct” that is problematic is what he was told – i.e. a conclusion that he was assaulted being told to him by a male friend, who got this information second hand, years later. Exactly what and how he was told may well have led to an upset reaction. However I did not hear about this from Mr. M. [ 56 ] Further, I don’t agree that Ms. H.’s reaction the next day adds anything to the question. She might have been upset simply by seeing such a sexual act involving her brother, period. Certainly her reaction does not mean that there was necessarily a sexual assault going on. Mr.

C.’s drinking [ 57 ] Just because Mr. C. was, by all accounts, very drunk when he came to the room, does not mean that he was necessarily unconscious and not capable of consenting or initiating sexual activity. Sexual activity is not ruled out when parties are drunk. Mr. C.’s work

schedule [ 58 ] The fact that Mr. C. would have been very tired when he went to bed, I agree makes it possible that he would have fallen asleep once he lay down and is a factor that needs to be considered. Having said that, this factor must also be weighed against the fact

that Mr. C. was able to get up and go to work with the rest of them at 5:30 am, which means to me he could have woken up at any time. Ms. H.’s corroborative evidence [ 59 ] As somewhat alluded to above, I have some serious concerns about the veracity and reliability of Ms. H.’s evidence. Firstly there is the issue of Mr. C. falling into bed without undressing, which I do not believe on the whole of the evidence. [ 60 ] More disturbing is Ms. H.’s evidence about telling Mr. M. about what she saw the next morning which was contradicted by Mr. M. I prefer his independent evidence over hers on this point. Ms.

H. said that she never liked Mr. MGS. In my view, if she felt that Mr. MGS had assaulted her brother she would have told Mr. M. right away and likely would have told her brother too. [ 61 ] Finally, I have concerns about what she alleges she saw in the fleeting seconds she said she was watching considering that she had just woken up, she too was very tired and had been drinking heavily that night until 2 am, it was dark in the room, and she was obviously surprised and disturbed about what she saw.

Accordingly, her evidence is not very reliable and I do not agree that it corroborates in these circumstances that Mr. C. was asleep. Further, if indeed Mr. C.’s eyes were closed and he was still, this is equally consistent with someone consenting to the act in question, as not. The cellphone transcript [ 62 ] In my view it would be unsafe and unfair to try and draw any conclusions about what was said in that call based on one minute of a 35 minute call. Mr.

C.’s evidence about what happened in the call also is not reliable considering his testimony that it was only five minutes when in fact it was 35. [ 63 ] Both parties to the call do agree that Mr. MGS was not terribly sympathetic which is consistent in my view with Mr. MGS not admitting to anything but telling Mr. C. that he had initiated the contact. The Crown failed to call the other witness to all 35 minutes of this call and I draw an adverse inference in that regard in that his evidence may have corroborated Mr. MGS’s version of what happened.

Accused’s after the fact conduct [ 64 ] I do not agree that the fact that Mr. MGS did not broach the subject with Mr. C. after that night necessarily means that Mr. MGS assaulted an unconscious man. Mr. MGS’s explanation about his advice from his counsellor, and not wanting to wreck a friendship is equally plausible. Bi-sexuality secret [ 65 ] I agree with the defence that if Mr. MGS had wanted to keep his bi-sexuality secret by attacking an unconscious man, it would not have been wise to initiate a sexual act in a crowded room. [ 66 ] Overall, Mr.

MGS had the best recollection and most reliable and credible evidence about what happened that evening and thereafter. He was cross-examined, but unlike Mr. C. and Ms. H., he was never caught up or contradicted. I considered the previous sexual assault conviction that Mr. MGS has sustained, however, I must deal with the evidence before the Court on this occasion. Based on the evidence before me, in my view, there is no credible reason for me not to believe Mr. MGS. [ 67 ] Having said this, it is hard for me to judge if Mr. MGS is telling me the truth about Mr.

C. initiating and therefore consenting to the sexual encounter. However, according to the W.D. analysis, even if I do not believe him on this point, I must determine whether his evidence raises a reasonable doubt, and on this point I am quite certain that it does. [ 68 ] Further, upon a review of all of the evidence, and my concerns about the reliability of Mr. C.’s evidence and the veracity of Ms. H.’s evidence, in my view the Crown has not proven beyond a reasonable doubt that Mr. C. did not consent to the sexual activity that night and that Mr. MGS knew that Mr. C. did not consent.

For the reasons elaborated on above, many of the Crown’s concerns can be answered and considering the reliability of Mr. MGS’s testimony, I have plenty of doubt about Mr. MGS’s guilt. [ 69 ] As well, in these circumstances, in my view it is equally clear that the Crown has not proven beyond a reasonable doubt that Mr. MGS did not have an honest but mistaken belief that Mr. C. consented to the sexual activity that night. Indeed the Crown hasn’t proven that Mr. MGS’s belief was mistaken at all. Conclusion [ 70 ] As a result, I find Mr. MGS not guilty of the charge of sexual assault on the complainant L. C.

Heard on the 6 th , 7 th , 8 th , and 10 th days of day of October, 2014

Given at the City of Calgary, Alberta on the 27 th day of November, 2014 K.M. Eidsvik J.C.Q.B.A. Appearances: Kevin Doyle for the Crown Jeinis Patel for the Accused