R v Chen, 2016 ABQB 644

Court of Queen’s Bench of Alberta Citation: R v Chen, 2016 ABQB 644 Date: 20161213 Docket: 140589730Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - James Chen 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment Of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] It is alleged against the accused James Chen that on May 25, 2014 he sexually assaulted the then-17 year old complainant, contrary to s. 271 of the Criminal Code of Canada . For reasons which follow, the charge against Mr. Chen is dismissed.

Review of evidence [ 2 ] The events in question occurred after midnight at a residential premises in southwest Edmonton where a high school graduation party was underway, attended by at times up to 100 people both inside and in the backyard of the house. [ 3 ] The backyard was comprised of a deck, a fire pit to the left of the deck and a treed area toward the back of the yard. An open grassy area separated the deck and the treed area. At any one time during the party, as many as half the partygoers were outside in the yard.

The complainant’s evidence - examination in chief [ 4 ] The complainant testified that she was 17 at the time of the alleged sexual assault. She had never consumed alcohol, with the exception of sips of champagne in the past. She had consumed no alcohol, nor drugs, before arriving at the party around midnight. [ 5 ] The complainant testified that soon after arriving at the party she drank a can of beer and a “few shots” of something strong. She then clarified that she had between 3-6 shots of what she called “strong liquor”, a can of beer, and maybe some champagne.

It took her some 20 to 40 minutes to consume the alcohol. [ 6 ] Within 10 minutes of drinking, the complainant testified, she started feeling dizzy and unwell. She went into the backyard for some fresh air. At this point, she was with her then-best friend, one YL. [ 7 ] Once outside, the complainant testified, she recalled Chen coming by and putting his arm around her. She recalled he had his other arm around YL.

He introduced himself as James Chen; he also referred to himself as James the bartender, as earlier he had been helping to tend bar inside the house. [ 8 ] The complainant testified that she recalled a discussion with Chen. It was not much of one, she said, because she was not feeling well. She recalled he said his name was James. She recalled saying that she did not know him. [ 9 ] It was after that, she said, that her mind became really foggy. She said a lot of things from the evening in question were hard for her to recall. [ 10 ] While in the backyard, she said, she remembered that Chen kissed her.

She then volunteered that she “responded [to his kiss], because I was drunk ”. [Italics indicate emphasis added] [ 11 ] She recalled that her friend YL was unhappy that she was kissing Chen. She said that YL told Chen to get away from the complainant “ because [YL] she knew I was drunk ”. [ 12 ] The complainant recalled being “pushed away” by YL. At that point, she testified, her eye vision started to blur up, she lost track of YL, and she was left alone with Chen. The complainant testified” “…and I just tried to feel better, because of the alcohol”.

But, she said, Chen still had his arms around her and he “pushed” her toward a tree in the back yard: …and I was just walking where I was guided because of my state… it didn’t look like he was forcing me to do anything because of my state … [ 13 ] Once behind the tree, the complainant testified, Chen started to touch her in a way she did not like.

He touched her on her waist, but she was unable to push him away physically, but asked him words to the effect ‘I don’t know you, who are you?’ She testified further: I tried to stop him by telling him that I don’t know him, but he started going further, and I started to realize what was going on, so I said no… [ 14 ] The complainant testified further that she recalled Chen held her down with one of his hands, and touched her with the other hand. [ 15 ] When she said no, she testified, she recalled that he responded to her, “it’s okay, I know you want it”. [ 16 ] And she testified that she replied to this, “No, I don’t know you” – to which Chen replied, according to the complainant’s evidence: ‘My name is James’ and he kept saying ‘I know you want it’, and I kept saying ‘no’, 3-4 times now, until I lost my consciousness… the last thing I remember, I was under him, he was on top of me, he was kissing me, he was going under my dress… I was lying down. [ 17 ] The next thing she remembered is waking up in the living room of the house.

She was, in her words, “still very intoxicated”. She recalled male voices saying she had been raped. She agreed she was being asked for her cell phone password. She agreed she did not want her parents called. [ 18 ] The complainant testified plainly that she lied to her mother about her intentions that evening and overnight. She told her mother that she was going to her friend’s house for a pyjama party. In fact, the complainant acknowledged she had intended all along to attend the party in question. [ 19 ] The complainant eventually went home with YL whose mother picked them up from the party.

She stayed over at the friend’s house.

[ 20 ] The next day, after coming home around noon, the complainant spoke to two friends about what happened at the party. Eventually, about a day and a half after the incident, the complainant attended upon a Sexual Assault Response Team (SART) nurse. The complainant’s evidence – cross examination [ 21 ] In cross examination, the complainant testified that the pyjama party story was the first time she had lied to her parents. She was afraid that her parents would disapprove of her breaking her trust with them.

She agreed that she was terrified that her parents would find out she had attended the graduation party. At the same time, she denied being concerned about any particular consequences – other than that her parents would be upset – for having lied about where she spent the night. [ 22 ] The complainant agreed she was concerned about messages on social media arising from the events in question. Even in her intoxicated state in the living room of the house, she could recall people talking about what happened between her and Chen.

She could recall that she was concerned about what she heard. [ 23 ] Further, the complainant agreed that in the next day or two after the events she began conducting internet research on sexual assault. She denied that she did so as part of an effort to fabricate her story about the alleged sexual assault, or the effect of alcohol on her, for example in terms of its effect on vision, speech, walking, and the like. Her main concern, she testified, was whether she’d had intercourse.

She denied she was building a story to avoid or counter suggestions about her on social media. [ 24 ] Further with regard to her alcohol consumption, the complainant agreed that contrary to her evidence in chief – and indeed contrary to her evidence at the early stages of her cross examination – in fact she had only 2 sips of a beer and not a full beer. She agreed the 3-6 shots of alcohol were in one-ounce shot glasses that were each just over half full.

She agreed she may have had fewer than 3 shots, in that she was not keeping track. [ 25 ] She agreed with much of Chen’s own evidence around the initial dealings with YL present, dealing with Chen initially in the backyard, going inside the house to introduce YL to another male individual, then returning with Chen alone, hand-in-hand, to the backyard. [ 26 ] She agreed that she and Chen started to kiss once in the backyard the second time. [ 27 ] On the question of YL’s intervention, the complainant was initially unable to provide much detail owing, she said, to her intoxication.

As her evidence continued to unfold at trial, however, she testified as to a much sharper recall. [ 28 ] She acknowledged, for example, that she had provided an earlier statement of a clear memory of YL trying to separate her from Chen. And in response to YL’s efforts, the complainant agreed in cross examination that she had told the truth in a previous statement, when she said: …I thought it was funny. I didn’t take it seriously, so I laughed.

And then I guess we kissed again. [ 29 ] Regarding her alcohol consumption, the complainant was asked straightforwardly if she possibly had fewer drinks than she had indicated in examination in chief. She answered at first with a conclusion, stating that it “…was enough to get me drunk”. Pressed on the point, she agreed that she may have had fewer drinks than she indicated in her examination in chief. [ 30 ] In cross examination the complainant stated she “never denied” that she was kissing Chen in the backyard at the party.

She agreed that “…nobody was forcing me to kiss him”. [ 31 ] Subsequently in cross examination, the complainant acknowledged that when testifying at an April 7, 2015 preliminary inquiry she was at least initially unable to recall any actual kissing with Chen. [ 32 ] The complainant agreed that she and Chen sat down on the grass in the backyard. She agreed they sat in the grass between the deck and the treed area toward the back of the yard. She agreed it was a very public area with many partygoers quite close nearby. [ 33 ] She agreed that she and Chen sat on the grass and kept kissing.

And in her words in cross examination, it was then that “the touching just starts”. [ 34 ] When asked generally if she was touching Chen, the complainant said she may have been, but she could not recall. [ 35 ] She was then pressed on her inability to recall that detail: Q: How is it you don’t remember? A: Because I wouldn’t want to touch him. [ 36 ] Moments later, however, the complainant acknowledged that it “could be correct” that she was in fact touching Chen’s chest while the two were kissing.

And she agreed in cross examination that she was touching Chen’s chest intentionally to show affection to him. [ 37 ] The complainant agreed that she may have put her hand on Chen’s leg. She could not recall, but equally, she agreed that she could not deny it. [ 38 ] The complainant did outright deny that she touched Chen’s crotch. Asked why she denied it, she responded: Because I wouldn’t want to do that… I wouldn’t feel comfortable doing that.

[ 39 ] In all of this, the complainant testified, she was “physically unable” to walk away from Chen owing to her intoxication . Pressed on that evidence, however, she agreed that she was able to walk – she agreed she did so at the point Chen “guided” her behind a tree in the backyard. But she stated that while able to walk, she was unable to get up from the ground. Then pressed on that answer, she stated in cross examination: Q: You got up and you walked from the place close to the deck to further away, on your own.

A: I don’t recall that. … Q: You had t he ability to stand up and walk to the back, you clearly the ability to walk to the house? A: Yes. [ 40 ] The complainant was then asked plainly in cross examination what else she and Chen were doing while sitting on the grass between the deck and the tree, for some 20-30 minutes. She answered: Q: You were on the ground for 20-30 minutes? A: I was on the ground for 20-30 minutes. Q: And what did you do during that time? A: Me and James were kissing. I don’t deny that. Q: You’re touching him, on his chest. A: On the chest, yes. Q: What else?

A: Um, then I remember being under him, on the grass. Q: Out in the public area? A: Yes. And, at one point, James did flip me over so that I was on the top. And because I wasn’t exactly doing any action, he put me back under. Q: And you have a memory of this? A: I do. I don’t have a memory of the vision, but I do remember being flipped. Q: Except that didn’t happen out in the public area, did it? A: I still believe it did. Q: That’s not what you said to the police. You said that that action of ‘on top, on the bottom’ was behind the tree. A: Yes. That is still the public area, isn’t it?

Q: No, let’s get back to the area I mentioned, please. When the two of you were outside, between the deck and the tree. My simple question was ‘what else happened’? A: Are you – I’m a little bit confused about your question. … Q: Between the deck and the tree, you said you spend 20 to 30 minutes there. A: Yes. Q: You’re touching him, he’s touching you… A: I didn’t say I spent 20 to 30 minutes. Q: How much did you spend there?

A: I didn’t give any time frame to that… I just said yes, because I assumed it was true… I can’t exactly recall the time frame because an intoxicated person can’t tell what time it is. [ 41 ] It was put to the complainant that she never said “no” during her encounter with Chen. Q: When did you say no? A: When we were behind the tree.

Q: So you know what was happening at that point? A: I start realizing what was happening. Q: Well, you must have, to say no. A: Yes. Q: My suggestion is that you never said no once A: Was that a question or not? Because I know what I said. Q: You never said no to him once. A: Is that what James said? Q: No, I’m saying that’s the truth. A: How do you know it’s the truth? … Q: My suggestion is, you never once said to James Chen, no, that night, isn’t that correct? A: No, that’s not correct. … Q: My suggestion is that what you’re showing us today is a very selective memory, isn’t that correct?

A: There was moments that I can’t recall, that is correct. Q: So, you might have said yes, you don’t now recall? A: That is not correct. Q: Well, why not? A: Because, for me, losing the virginity was very important so when I started realizing what’s happening, my body started panicking, and that’s when I started waking up a little bit, but I was too intoxicated to do anything . [ 42 ] The cross examination then revisited the couples’ movement to behind the tree in the backyard.

The complainant agreed that once having moved to that location, she and Chen continued to touch each other. [ 43 ] The complainant provided a statement to police soon after the events in question. She agreed in cross examination that she failed to disclose to police that anything happened in the grassy area of the backyard between the deck and the tree.

She agreed she also told police that she and Chen were behind the tree – and not in the grassy area between the deck and the tree – when her friend YL tried to push her apart from Chen. (Until this point in the complainant’s evidence at trial had stated that YL’s intervention had occurred while the couple were in the grass between the deck and the tree.) [ 44 ] The complainant denied that she asked Chen, when the two were behind the tree, if he had a condom. [ 45 ] The complainant gave the following evidence with regard the couple parting ways toward the end of their encounter: Q: …my suggestion is that Mr.

Chen said to you, after, do you want to go inside? A: I don’t recall that. Q: So he may have said it? A: Yes. Q: And you said, no, I’m tired – or words to that effect. Correct? A: Yes Q: And he left, and you stayed there? Correct? A: Uh, yes. [ 46 ] Toward the end of her cross examination, and on reviewing an aspect of her evidence given at preliminary inquiry, the complainant stated at trial that had responded “yes” to certain questions only because she assumed the facts being put to her by examining counsel were true.

She denied she answered ‘yes’ to those same questions because she had any actual recollection of events. [ 47 ] This part of the evidence arose from questions about the efforts of her friend YL to separate the complainant and Chen in the back yard:

Q: [At the preliminary inquiry you answered] ‘She wasn’t trying to separate us. She just pushed me once and after that I don’t remember her.’ Do you remember saying that? A: Yes. Q: And then immediately my next question: ‘In fairness, she spent 10 to 20 minutes trying to separate the two of you? Answer: ‘Yes’. Correct? A: Uh, yes… Q: And what happened there was you didn’t remember her doing anything but the one push but then you remembered that it was 10 or 20 minutes she was trying to… A: I didn’t remember, I agreed to your facts that you provided me with, because those are not my statements. Q: Pardon me?

A: Those are not my statements and I cannot speak for other people. But if you say it’s the truth, I agree with that. Q: Here’s what I’m suggesting. When I suggested it to you – it was 10 to 20 minutes trying to separate the two of you - you could have said ‘No’, correct? A: I agreed with you… Q: You could have said ‘I don’t remember”. A: Yes. Q: But you said ‘Yes’. Correct? A: Yes, because I do rely on your facts. Q: Actually, you’re relying on your own memory at that point, correct? A: I don’t disagree with most of the facts you provided me with.

Q: Sorry, can we agree on this: she spent 10 or 20 minutes trying to separate the two of you? A: If that is the fact, then I can’t deny it. Q: No, I want you to tell us – you said ‘yes’ at the preliminary A: Yes, I did. Q: I want to know if you’ve changed your mind now. Is it correct that that night [YL] spent 10 to 20 minutes trying to separate the two of you? A: I don’t remember. Q: But I take it you were telling the truth at the preliminary? A: I was. Q: So if you said ‘yes’ we can accept that as the truth? A: You can. Q: That was your best recollection at the time of the preliminary.

A: I didn’t say I remembered that, I just agreed with you. Q: Can we agree … A: Just like I agreed with you that I was in between the deck and the tree today because you provided me with facts. … Q: Is it correct, first of all, that when you were asked that question at the preliminary your answer was ‘Yes’? A: Yes Q: 10 to 20 minutes? A: Yes Q: And were you telling me the truth? And the Court the truth?

A: I would never lie to the Court. Q: Were you telling the Court the truth then, please? A: Yes. Because I assumed that you were providing me with the truth. Chen’s evidence [ 48 ] The accused James Chen testified at trial. He testified that he first came across the complainant and YL at the party near the deck in the backyard. He said they called out to him. He went over, put his arms around both, then made small talk for some 30-40 minutes. [ 49 ] Chen testified that he hit it off with the complainant.

Twice he and the complainant attempted to kiss, but YL stopped them on each occasion in what Chen described as a joking manner. The three then went into the house where Chen introduced Lee to friend of his. [ 50 ] Some 10-15 minutes later, Chen and the complainant left the house for the backyard. At that point, Chen testified, he was holding hands with the complainant. They went to the area of the backyard between the deck and a treed area. There they starting kissing. Between kissing they were also talking. Chen described the complainant as responsive and coherent.

According to Chen, the complainant was touching his chest in what he thought was an affectionate manner. He was touching her too, at the waist area and buttocks. Chen testified that this led to the complainant touching his crotch area. This went on for some 10-20 minutes. At this stage, as things continued to heat up, Chen testified, the two decided to go behind a nearby treed area for privacy. The complainant, Chen said, had no trouble getting up or walking there.

Now behind the tree, the two laid side-by-side and continued to kiss and touch – she was touching Chen’s groin outside his pants, he was touching the complainant’s breasts and buttocks. [ 51 ] According to Chen, at no point during the events in question did the complainant do any or say anything by way of objection. [ 52 ] The complainant’s friend YL then came along. She said words to the effect ‘no, no, you guys aren’t doing this’. Chen testified that YL and the complainant had a private conversation. YL then left, and Chen and complainant resumed their intimacies.

This now turned to the couple having clothes off from waist-down. According to Chen, the complainant was touching and stroking Chen’s naked penis. He testified that she then asked him if he had a condom. He said yes, and retrieved it. He said he attempted to put it on but failed, owing to his inability to achieve an erection. The condom fell to the ground. Chen testified that while he did not penetrate the complainant with his penis, he did use his finger or fingers to touch and stroke her vagina. [ 53 ] It was around this time that a group of people came by, taking pictures and the like.

Chen testified that he asked them to leave and, eventually, they did. [ 54 ] Chen further testified that he and the complainant continued to ‘make out’ until Chen’s friend came by to announce that their ride was leaving the party. Chen testified that he told the complainant he was going to leave.

He asked her if she wanted to come inside the house, but she responded that no, she was tired, so she would stay outside. [ 55 ] In all of this, Chen testified that while he could tell that the complainant was under the influence of alcohol, she was definitely not drunk. [ 56 ] In cross examination, Chen agreed that over the course of the evening he drank several drinks, beers and a cooler. He denied his senses or memory were adversely affected by intoxication. Chen denied that he “guided” the complainant to behind the treed area in the backyard.

He testified that they walked together, hand in hand, and did so only after they had discussed having more privacy. Other witness evidence & admissions [ 57 ] The host of the party, one SL, agreed that his memory of events was “substantially affected” by intoxication. [ 58 ] SL testified that at a point later in the party he found the complainant in the backyard, laying down and unresponsive. He enlisted the aid of others to carry the complainant into the house. They laid her on or near a couch. At a point after, SL asked the complainant to provide her cell phone code to call her parents.

She appeared to have difficulty responding. But she also reluctant to help unlock the phone: …she was, like, no, my parents will kill me. And she was just really – overall, like, she was really scared of us calling her parents. [ 59 ] SL testified that the complainant eventually did provide her cell phone password. [ 60 ] Another party attendee, one MA, testified at the trial. She arrived at the party at about 1 a.m. The complainant, a friend of MA’s, was already there.

MA was not drinking, nor using drugs. [ 61 ] At about 2 a.m., when many of the party-goers had left and MA was helping to clean up, she noticed someone lying on the ground behind some plants and/or trees in the backyard. Uncertain of what to do, MA went into the house to enlist help. Some 20-30 minutes later she and others returned to the backyard. The individual still then lying on the ground turned out to be the complainant. She was laying on her side in what MA described as a loose fetal position. Her clothes from the waist down were around her ankles while her clothes from the waist up were still on her body.

She was not responding to verbal prompts. Someone brought a blanket and the complainant was carried into the house.

[62] According to MA, the complainant did come to once inside the house. She was laid on the floor near a couch. She vomited abit. She was speaking in incomplete, incoherent sentences, and was difficult to understand.

By the time MA left the premises, around 3-4a.m., the complainant was increasingly vocal and appeared to have a greater awareness, but according to MA she was still speaking inbroken sentences. [63] In cross examination, MA agreed that she heard the complainant pleading with SL for some 20 minutes, and during that timeasked at least five times, not to call her parents. [64] Yet another party attendee, one AC, testified that he arrived at the party around 10:30-11 p.m.

He had a few drinks but deniedbeing intoxicated when, about hour and 20 minutes later, he took a 2-second video on his cell phone of a male and female engaged inintimate relations in the backyard of the house. [65] In cross examination AC agreed he saw Chen and a female kissing. The female was then unknown to him. Neither of themwas pushing away from the other. He saw the two kissing first while standing in the backyard, then lying on the grass.

It was aroundmidnight, he testified, that he saw these events. [66] Certain facts were agreed without the need for oral evidence, to be weighed alongside all of the evidence. So for example: a. The complainant’s then-best friend, YL, while not available to be called at trial, would have repeated what she said in an earlierstatement. In that statement, she said that as soon as she and the complainant arrived at the party “they drank gin, Malibu rum,jagermeister, vodka, and beer”.

The statement goes on to say: She drank jagermeister (2-3 inches in a Solo cup), gin, (2-3 inches in a Solo cup), a mixed drink of gin, vodka, and Fanta mix (this was 3inches of the alcohol, topped with mix). [The complainant] drank the same beverages to start, but did not have the Fanta Mixed drink,rather she finished off with a beer. (By way of comment, I find that the italicized reference to “she drank” is to YL, rather than to the complainant.) b. YL and the complainant each became intoxicated. YL estimated their intoxication at an 8 of 10. c.

Outside in the backyard of the party premises, YL and the complainant had dealings with the accused Chen; the three then wentinto the house where YL was introduced to another male person. d. Some 20 minutes later YL was again outside in the backyard. At that time she saw Chen and the complainant kissing at the edge ofthe backyard, away from the deck near the house. They were in the grass near some trees. The complainant was underneath Chen andthey were “kissing passionately”. Both were fully clothed. e.

YL stated that she tried to pull Chen and the complainant apart, but she was unsuccessful because she was too intoxicated.

She triedfor some 10-20 seconds to separate them, including “pushing on their faces”; in her words, neither of them responded to her whatsoever. (Again, by way of comment, I find that the italicized “she was too intoxicated” is to YL, not to the complainant.) [67] Also admitted by way of records only was the outcome of a Sexual Assault Response Team (SART) report of May 26, 2014evidencing a laceration in the complaint’s exterior genital area and to the hymen. [68] Further admitted by way of records only was the outcome of a DNA report evidencing the presence of DNA of both thecomplainant and of Chen on a condom retrieved from the scene of the alleged sexual assault.

The law [69] To convict Chen under s. 271 of the Criminal Code the Crown must prove that he intentionally applied force to her incircumstances of a sexual nature, that the complainant did not consent to it, and that Chen knew she did not consent to it. All of theseelements of the offence must be proven beyond a reasonable doubt. [70] This is as more fully set out in R v Ewanchuk, [1999] 1 SCR 330, . As noted by Major J for the majority, atparas 25-26: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary.

The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour [citations omitted]. 26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: [citations omitted] [71] The majority goes on to emphasize that for the purpose of determining the absence of consent as an element of the actus reus,the actual state of mind of the complainant is determinative.

At this point, the trier of fact is only concerned with the complainant’sperspective. The approach is purely subjective. [72] That being said, the trier of fact must still assess all of the evidence going to whether the Crown has proven, beyond areasonable doubt, the absence of consent. As further noted in Ewanchuk, at paras 29-30: 29. While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed

by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, beforeand during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to takeplace. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown hasdischarged its obligation to prove the absence of consent. 30.

The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence includingany ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct isconsistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant.

That perceptiononly arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [73] Even if the complainant did not subjectively consent, the accused may have honestly (if not reasonably) believed she wasconsenting: Pappajohn v R, [1980] 2 SCR 120, . Such a defence must have an air of reality: there must be an evidentiarybasis for finding that the complainant did not consent, but that the accused honestly thought she did. [74] The accused Chen raised the defence of mistaken belief. As will become apparent, I am not persuaded that it arises in thiscase.

This is not a case in which there is any ambiguity around consent: R v Davis, [1999] 3 SCR 759, , at para 86,citing McLachlin J. (as she then was) in R v Esau, [1997] 2 SCR 777, , at para. 63: There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accusedcould honestly have mistaken the complainant’s lack of consent as consent. Otherwise, the defence cannot reasonably arise.

There must,in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant wasconsenting to the sexual activity in question. [75] This is, rather, a case wherein the complainant and Chen tell “diametrically opposed stories” (to adopt a phrase used in Davis,at paras 84-85: 84 ... Sexual assault is not a crime that is generally committed by accident: see Pappajohn, at p. 155, per Dickson J.; Osolin, at pp.685-86, per Cory J.

In most cases, the issue will be simply one of “consent or no consent”, and there will be only one of two possibilities.The first is that the complainant consented, in which case there is no actus reus. The second is that the complainant did not consent, andthe accused had subjective knowledge of this fact. Here, the actus reus is made out, and the mens rea follows straightforwardly. 85 For example, suppose the complainant and the accused relay diametrically opposed stories. The complainant alleges a brutalsexual assault and vigorous resistance, whereas the accused claims consensual intercourse.

Suppose further that it is impossible to splicetogether the evidence to create a third version of events in which the accused honestly but mistakenly believed the complainantconsented. In such circumstances, the trial becomes, essentially, a pure question of credibility. If the complainant is believed, the actusreus is made out and the mens rea follows straightforwardly. If the accused is believed, or if there is a reasonable doubt as to thecomplainant’s version of events, there is no actus reus.

There is no third possibility of an honest but mistaken belief in consent,notwithstanding the accused’s assertion that the complainant consented: Park, supra, at paras. 25-26. [76] I turn then to the legal crux of this trial, which is whether the Crown has proven the absence of consent beyond a reasonabledoubt. [77] The parties agree that credibility is central to this determination.

And so too, then, R v W(D), [1991] 1 SCR 742, . [78] The above reference from Davis to “diametrically opposed stories” is not to suggest that this case can be considered a‘credibility contest’ or a ‘he said-she said’ battle in which the court picks one story over the other. That point has been made countlesstimes in the 25 years since W(

D) was decided.

I am attracted to the formulation of it as articulated in R v PDT, 2012 ABCA 68, 522 AR297, aff’d 2012 SCC 62, 2012 SCC 62 , at paras 21-23 (per McFadyen JA): [21] The Supreme Court has consistently held that trial judges do not err if they fail to expressly apply the tripartite analysisprescribed by W(D), so long as they respect the substance of that test: R v Szczerbaniwicz, 2010 SCC 15, [2010] 1 SCR 455 at para 14; Rv REM, 2008 SCC 51, [2008] 3 SCR 3 at para 31. [22] The purpose of the test is, at least, twofold: (1) it ensures that the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt; (2) it ensures that the verdict is not based on a choice between the accused’s and Crown’s evidence, but on whether the whole of theevidence leaves the trier of fact with a reasonable doubt as to the accused’s guilt: R v CLY, 2008 SCC 2, [2008] 1 SCR 5 para 8. [23] The Supreme Court has stated that when a trial judge assesses credibility, the circumstances may not necessarily lend itself “to theadoption of the three distinct steps.” The critical concern is whether the trial judge “direct[s] his or her mind to the decisive question ofwhether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Putdifferently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt”: R vDinardo, 2008 SCC 24, [2008] 1 SCR 788 at para 23. [79] With these things in mind, the three-part W(

D) test follows:

(1) If I believe the evidence of the accused, obviously I mustacquit; (2) if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and (3) even if I am notleft in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. [80] It is important to recognize that steps (1) and (2) must be addressed in the context of all of the evidence: the accused’sevidence, and any other evidence that favours the accused, must still be assessed in the context of all of the evidence: R v Threefingers,

2016 ABCA 225, at para 67. [81] It is also important to recognize, particularly in relation to step (2) of W(D), that a trier of fact is obliged to acquit if after acareful consideration of all of the evidence the trier is unable to decide who to believe: R v S(JH), [2008] 2 S.C.R. 152, 2008 SCC 30, atparas 10-13. [82] Before finally applying the law to the facts of this case, a further legal issue arises regarding proof of the complainant’scapacity to consent. [83] R v JA, 2011 SCC 28, [2011] 2 S.C.R. 440, at para 66, establishes that: [66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase ofthe sexual activity.

It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance.Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensualwithin the meaning of the Criminal Code. [84] Similarly, R v Jensen, , 106 CCC (3d) 430 (ONCA), at p 6 (per Rosenberg JA). [85] Nothing in JA diminishes the force however of those cases dealing with the evidentiary challenges around proof of incapacity. [86] In Jensen for example the court noted that the Crown led no evidence from the complainant that she was incapable ofconsenting, nor any expert evidence as to the effect of alcohol and drugs on the complainant's capacity to consent.

The court concludedthat a conviction of the appellant based on lack of capacity to consent would be unreasonable. It found that no jury acting judicially couldreasonably find the complainant was so intoxicated by the combination of alcohol and drugs that she lacked the minimal capacityrequired to consent (or withhold her consent) to the sexual activity. On the complainant's own evidence, she was alert and in her ownwords knew what was going on.

At pp 10-11 of Jensen, Rosenberg JA contrasted that state of affairs with the facts in R v Sarson (NSCA), 77 CCC (3d) 233 (NSSCAD): In Sarson the evidence was that the complainant had been drinking heavily and when she stood up she stumbled and fell and hit her head. She was then carried to the accused's bed and laid there because "she was out of it". Sometime later the accused went to the bed andsexually assaulted the complainant. The fact of the assault was testified to by other persons who were present in the room and witnessedthe conduct. As well, the complainant's clothing was ripped and partially removed.

The complainant's eyes were closed throughout theassault. The complainant awoke about 12 hours later and discovered that her underwear was missing, that her pants had been cut and hervagina was sore. A medical examination confirmed that the complainant had been subjected to sexual intercourse. The trial judge foundthat the complainant could not consent to contact of a sexual nature and the accused was convicted.

The appeal from conviction wasdismissed, the Appeal Division being satisfied that the verdict was not unreasonable. [87] On the question of expert evidence in cases raising a lack of capacity, I was referred to R v JR, , 40 CR (6th) 97 (ONSC) and the following statement at paras 18-20: [18] Absent expert evidence, a loss of memory or a “blackout” is direct evidence of nothing except the fact that the witness cannot testifyas to what happened during a particular period. Indeed, Ms.

Martin the toxicologist called by the Crown described a blackout as, “acomplete loss of memory for a portion of time during a drinking episode.” In a sexual assault case, this is particularly unfortunate since,as was noted in R. v. Esau (1997), (SCC), 116 CCC (3d) 289 at 296 (SCC), “[t]he parties’ testimony is usually the mostimportant evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assault case involving acomplainant with no memory of the relevant time.

In Esau at 297, Justice Major said of the complainant’s memory loss, “[a]ny numberof things may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more,is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had thecapacity to do so. [19] I also cannot find any support for the Crown’s proposition in the jurisprudence. Indeed, the law is precisely to the contrary.

If theCrown’s submission was correct this would mean that, in any case where the trier of fact accepted that the complainant had been touchedsexually, although she had no memory of this, the actus reus would be proven and the only remaining issue would be whether or notthere was any basis for the defence of honest but mistaken belief in consent. The cases discussed below in footnotes 13 to 15, infra,demonstrate clearly that this is not the case. In none of these cases is a blackout or memory loss, without more, taken as proof of lack ofconsent or lack of capacity. (

B) Memory Loss As Indirect Evidence of Non Consent or Lack of Capacity [20] This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. Itmay well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn aboutwhether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time.

But evenhere, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential. [88] The court in JR also reviews encyclopaedically at paras 44-45, dozens of cases since at least the late 1980s wherecomplainants have been found to lack capacity because of intoxication, as well as cases where that argument has been rejected, thenoffers the following useful

summary, at para 45: [45] What is striking about these cases is that where a lack of capacity has been found there is direct evidence that: (

i) the complainantwas extremely intoxicated; (ii) the complainant was asleep or unconscious when the sexual touching commenced; or (iii) thecomplainant was asleep or unconscious during all of the sexual touching. [89] Counsel for the accused Chen also fairly put before me the case of R v JWM [2004] OJ No 1295, 2004 CarswellOnt 1214, atparas 57-58. JWM is authority that expert evidence as an essential prerequisite to proof of incapacity is not, in every case, required.

[90] Everything set out above is consistent finally with R v Heraldson, 2012 ABCA 147, 524 A.R. 315, at paras 6-7: [6] The central issue at trial was the complainant's capacity to consent. The Crown correctly states that the capacity to consent requiressomething more than the capacity to "execute base-line physical functions," and that the capability to speak or perform a sexual act doesnot preclude a determination that the complainant lacked capacity to consent in the circumstances.

The Respondent agrees with the testformulated by the Crown, but points out that a drunk complainant may retain the capacity to consent, and that the issue is one of fact ormixed fact and law.

The Crown says that the trial judge erred by focusing on the complainant's ability to perform relatively primitivefunctions (such as providing instructions to the cab driver, getting out of the taxi cab, and participating in the sexual conduct), as opposedto whether the complainant could understand the risks and consequences associated with the sexual activity and the sexual nature of theact, and to realize that she could decline to participate.

The competing submission is that there was sufficient evidence to show actualconsent based on the Respondent's statement that the complainant was an active and engaged participant, and that there was an absenceof evidence to prove incapacity beyond a reasonable doubt.

The Respondent says that while intoxication is a factor, there was evidence todemonstrate "the cognitive ability [of the complainant] to articulate her desires," and that she was responsive to questions and appeared tobe aware of her surroundings. [7] The Criminal Code explicitly provides that there can be no consent if the complainant is incapable of consenting to the activity (s.273.1). Capacity to consent to sexual activity requires something more than the capacity to execute baseline physical functions. Thequestion is the degree to which intoxication negates comprehension or volition.

A drunk complainant may retain the capacity to consent:R v R(J) (2006), (ON SC), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17-19, 43. Mere drunkenness is not the equivalentof incapacity: R v Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.). Nor is alcohol-induced imprudentdecision making, memory loss, loss of inhibition or self-control: R v Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.). A drunken consent isstill a valid consent. Where the line is crossed into incapacity may be difficult to determine at times.

Expert evidence may assist andeven be necessary, in some cases (R v Faulkner (1997), (ON CA), 120 C.C.C. (3d) 377 (Ont. C.A.)), though it is notrequired as a matter of law: R v Merritt, supra; R v Hernandez, [1997] A.J. No. 955 (Alta. C.A.), R v Cedeno, 2005 ONCJ 91 ,195 C.C.C. (3d) 468 at para. 18. Analysis Positions of the parties [91] Briefly put, the Crown argues that I should reject the evidence of the accused, including his explanation for the parties’ DNAon the condom found at the scene, and his version of the complainant’s sobriety.

The Crown argues that the complainant was candidabout her initial interest in Chen. She was candid too, the Crown says, in testifying that she said ‘no’ several times to Chen’s touching,before she lost consciousness. The Crown urges a finding that she lost consciousness as a result of intoxication. But that intoxication, theCrown allows, was likely the result of consuming more alcohol than the complainant recalled in her evidence at trial. [92] Counsel for Chen argues that the accused’s story is plausible and was unimpugned during cross examination.

Thecomplainant’s evidence, it is argued, lacks those same qualities and must give rise to a reasonable doubt. Counsel also argues thatevidence of intoxication going to proof of incapacity is entirely lacking. DNA evidence [93] The evidence before me was documentary and scant, to say the least. I find it plausible that as argued on Chen’s behalf, theaccused’s DNA was present on account of his attempts to place the condom on his non-erect penis, and the complainant’s DNA waspresent on account of her directly touching and stroking Chen’s penis.

It follows of course that I find, notwithstanding the complainant’sdenials, that she did engage in such direct touching and stroking. Evidence of the complainant’s intoxication/capacity [94] On all of the evidence relating to this issue I am unable to find that the complainant, at any material time, was intoxicated tothe point of incapacity. [95] There is little direct evidence to support a finding that the complainant was extremely intoxicated. The most compelling is theevidence of MA, about which more is said in what follows. [96] I will begin however with the complainant’s own evidence.

On her own evidence she may have had as few as three shots, andnot more than six, of an undiscerned “strong liquor”. She denied ever having consumed such liquor before the party in question. It washer own evidence that each shot was from a 1-ounce shot glass that was just over half full. And so each shot was just over a half ouncein volume. She initially testified she also drank a beer, but later admitted it was really only a couple of sips.

With regard to the numberof shots, she agreed it might even have been less than three. [97] I acknowledge the Crown’s argument that the complainant must have been mistaken regarding her own consumption ofalcohol. On the other hand, she was unequivocal in much of her alcohol consumption evidence at trial – particularly in crossexamination – and she was not re-examined after giving her answers in cross examination. [98] As to the effect of this alcohol consumption on her, on the one hand she says she felt dizzy and unwell soon after drinking –she repeated many times in her evidence how intoxicated she was.

On the other hand, she acknowledged particularly in crossexamination that she had a detailed memory for at least certain events leading up to the point at which she says she says she lostconsciousness. Her claim to have lost consciousness must be weighed against her admission, in cross examination, that she had aconversation with Chen just before he left the backyard area to leave the party.

[ 99 ] I have the accused Chen’s evidence that the complainant, while under the influence of alcohol in his dealings with her, was still functional and lucid throughout. [ 100 ] I have the complainant’s friend YL’s evidence by way of her statement, putting the complainant at an 8 of 10 on the usual intoxication scale. But I cannot ignore that YL was herself intoxicated.

And as she was not available to be cross-examined at trial, I am reluctant to assign much weight to her evidence where there is other evidence to the contrary. [ 101 ] I then have the evidence of SL and, as mentioned, MA, regarding the complainant’s state at around 2:30 a.m. and for about another 60 to 90 minutes thereafter. [ 102 ] SL’s evidence must be approached with caution given his admission that his memory for events was substantially affected by intoxication. [ 103 ] MA experienced no such shortcomings. And MA clearly has the complainant quite intoxicated around 2:30 am.

MA did not observe the complainant at any earlier point in the party. As will be apparent from what follows, I find that the sexual relations between Chen and the complainant occurred before that time, likely around 1 am. [ 104 ] MA testified that she first saw the complainant laying in the backyard at about 2 am, but returned outside with help only some 20-30 minutes later, so around 2:30. At that time the complainant was unresponsive. On MA’s evidence, supported by SL, the complainant remained unresponsive even while being carried into the house, then laid on her side next to a couch. Eventually she came to.

And still then, on MA’s evidence, the complainant was incoherent. But then again, she was lucid enough to recall conversations around her, to object repeatedly to her mother being called, and eventually to agreeing to provide the password to unlock her cell phone. [ 105 ] In conclusion on this issue, while I am mindful particularly of MA’s evidence of the complainant’s apparent condition after the fact, I find that on all of the evidence the Crown falls short of proving beyond a reasonable doubt that the complainant lacked capacity to consent when she and the accused Chen engaged in the impugned sexual activity.

I am unable to reconcile the apparent after-the-fact condition of the complainant with her own evidence of consuming only a small amount of alcohol. No expert opinion is before me that could help reconcile this evidence. What’s more, for reasons that will soon follow, I find that the accused’s own evidence gives rise to a reasonable doubt on the issue of intoxication/capacity.

Timing of the alleged sexual assault [ 106 ] I find that from the time the complainant left the house hand-in-hand with Chen – until they went behind the treed area – the two were standing and/or sitting in the grass between the deck and the trees. There they were kissing and talking and touching. [ 107 ] I find that it was likely around 1 a.m. that Chen and the complainant went behind the tree in the backyard. This is consistent with the evidence of AC. He arrived at the party as late as 11 p.m., and took the 2-second video on his cell phone an hour and 20 minutes later.

AC credibly denied that his recollection was clouded by alcohol. [ 108 ] These findings are generally consistent with MA’s evidence. She arrived at the party around 1 a.m. and first saw the complainant lying motionless around 2 a.m.

Between those times, she testified as to seeing a crowd of people in the backyard, some taking pictures with cell phones. [ 109 ] These findings are also generally consistent with Chen’s evidence, taking into account his estimates of time from the time he first connected with the complainant and her friend, leading to the increasingly-intimate relations between himself and the complainant. The alleged sexual assault [ 110 ] I find that from soon after their initial encounter the accused Chen and the complainant showed mutual interest in each other.

Chen was candid in this regard, the complainant only reluctantly so. [ 111 ] In examination in chief the complainant was prepared to leave what I find was a misleading impression of her interest in and dealings with Chen. To borrow a phrase from defence counsel in argument, I agree that in examination in chief the complainant chose to portray herself, inaccurately I find, as largely a passive and intoxicated bystander. [ 112 ] What I find to be a more accurate impression of her interest in and dealings with Chen came out only in cross examination. That included touching Chen’s chest while the two kissed.

She initially denied any recollection of touching Chen at all. Moments later at trial she agreed she did touch his chest, and did so to express affection. Similarly, her evidence in chief regarding YL’s efforts to separate her from Chen was in stark contrast to her admissions on cross examination. In chief she testified vaguely about YL’s intervention, and seemingly in the context of allegedly being led around by Chen and eventually being taken advantage of.

In cross, she agreed that she thought YL’s intervention was funny, and she laughed at it, before she returned to kissing Chen. [ 113 ] None of these findings lead me to conclude, without more, that the complainant consented to having sex with the accused Chen. [ 114 ] These findings are relevant, however, to my assessment of the complainant’s credibility.

They are relevant to whether I can find that the Crown has proven its case against Chen beyond a reasonable doubt. [ 115 ] The complainant was able to recall a great deal of the events in question – more, as I have found, than she was prepared to offer initially in examination in chief. [ 116 ] The complainant was prepared to agree, with apparent candour, that there were certain things she could not recall, for example, just how much she had to drink, or whether he touched Chen’s leg.

[ 117 ] On certain points, however, the complainant testified unequivocally – for example, that she did not touch Chen’s crotch, or that she ever agreed to have sex with Chen once the couple were behind the treed area. [ 118 ] She was asked how she could deny these things outright, when so much else was uncertain in her memory. [ 119 ] Her explanation, in relation to the crotch-touching, was: Because I wouldn’t want to do that… I wouldn’t feel comfortable doing that. [ 120 ] (Earlier in cross examination, she had offered the same sort of explanation for why she testified she could not recall touching Chen’s chest.

Yet within moments of giving that answer, she withdrew it, and agreed instead that she indeed recalled touching his chest.) [ 121 ] And as to her denials around agreeing to have sex, again the complainant explained her ability to deny this outright as follows: Because, for me, losing the virginity was very important so when I started realizing what’s happening, my body started panicking, and that’s when I started waking up a little bit, but I was too intoxicated to do anything. [ 122 ] It was submitted in argument, and I agree, that the complainant’s answers to these questions are not likely based in actual memories but are more likely rationalizations.

I am persuaded that as in JR , at paras 21-22 (citing R v BJT [2000] SJ No 801 (QB) at para 19 ), her evidence on these points is not reliably based on actual memories but more likely based on her assumption or belief about how she behaved, or would have behaved. [ 123 ] The complainant was not re-examined on any of these answers given in cross examination. [ 124 ] In all, I am unable to accept the complainant’s evidence that she distinctly remembers not touching Chen’s crotch, or that she distinctly remembers saying ‘no’ to him at any point during the events in question. [ 125 ] In coming to this conclusion, I have had regard for all of the evidence including that which touches on the complainant’s credibility.

Some of that evidence I have already just referred to. I highlight the following for the sake of emphasis: a. Inconsistent with my findings around her consumption of alcohol, and with the effect of it on her, the complainant referred time and again to her intoxication, both as it inhibited her memory and her ability to fend off the accused. In my review of the evidence, above, I have italicized many of the complainant’s references to her alleged drunken state. Her evidence in this regard is simply not supported by the bulk of the credible evidence, including that of the accused. b.

Inexplicably, toward the end of cross examination the complainant attempted to explain away why she had answered ‘yes’ to certain questions put to her by examining counsel. Those parts of cross examination have been reproduced in full earlier in these reasons. It is difficult to accept at face value that the complainant could so fundamentally misunderstand how to answer questions put to her – that is to say, that she only answered ‘yes’ to certain questions because she assumed the factual basis for them was true.

And even if she honestly did misunderstand what she was asked, which I greatly doubt, there was no re-examination of her to clarify her evidence. What’s left then, at best, is an uncertain record of her evidence on important, if not central points, in the trial. c. Finally, and indeed central to the trial , was the complainant’s evidence late in cross examination with regard to what occurred when she and Chen parted ways toward the end of their encounter: Q: …my suggestion is that Mr. Chen said to you, after, do you want to go inside? A: I don’t recall that. Q: So he may have said it? A: Yes.

Q: And you said, no, I’m tired – or words to that effect. Correct? A: Yes. Q: And he left, and you stayed there? Correct? A: Uh, yes. Until this point in the trial, the complainant had insisted that she fell unconscious with Chen on top of her, then awoke at some point after, then in the living room of the house. Now she was testifying that as Chen prepared to leave her to go home, she told him that she was tired, and she stayed outside. This evidence is entirely consistent with Chen’s evidence, and irreconcilable with the complainant’s earlier evidence. Again, there was no re-examination on this evidence.

Conclusion [ 126 ] All of this may be put into W(

D) terms, as follows regarding the first element of the test: In the context of all of the evidence, do I believe the evidence of the accused? [ 127 ] To paraphrase from Côté JA’s decision in R v Vuradin , 2011 ABCA 280 , at paras 81-82 , [2012] 4 WWR 264, this is not a case

where the accused Chen failed to deny the allegations, or one in which his denials were patently ridiculous or inconsistent with his other evidence, or with other defence evidence, or with undisputed facts, or one in which he was shaken on cross examination.

What is more, it was uncontradicted that his memory for the events in question was unaffected by alcohol. [ 128 ] In sum, on its face I find that there is no good reason to disbelieve Chen’s evidence. [ 129 ] What of Chen’s evidence in the context of all of the evidence at trial? [ 130 ] I have commented already and at length regarding what I find to be the shortcomings of the complainant’s evidence. [ 131 ] I have commented already regarding certain witness evidence of the complainant’s condition at and after 2:30 a.m. on the date in question.

As noted, that evidence, again assessed alongside the balance of the evidence relevant to the intoxication/capacity issue, does not persuade me that the Crown has proven a lack of capacity to consent. [ 132 ] In so concluding, I have accepted Chen’s evidence which runs counter to the complainant’s that she fell unconscious with Chen on top of her, and moments after saying “no” for at least the fourth time. ( If that is the complainant’s evidence, around which there is considerable room for doubt.) [ 133 ] It follows, not just on Chen’s evidence but having considered his in the context of all of the evidence, that the Crown has failed to prove beyond a reasonable doubt that the complainant – in her own subjective mind – did not consent to having the impugned sexual relations with the accused. [ 134 ] Given this conclusion, it is unnecessary to dwell on any defence advanced on Chen’s behalf of honest but mistaken belief in consent.

The balance of the W(

D) test [ 135 ] Given my conclusion on the first part of the W(

D) test, it is unnecessary also to dwell on the second and third parts of the test. Although it is fair to say that even if I did not believe the testimony of the accused, or if I was not left in doubt by it, on the basis of the evidence which I do accept, I would not be convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Heard on the 13 th & 14 th days of September, 2016 Dated at the City of Edmonton, Alberta this 13 th day of December, 2016 Peter Michalyshyn J.C.Q.B.A. Appearances: Neil S. Wiberg, Q.C. Alberta Justice for the Crown Brian A. Beresh, Q.C. Beresh Aloneissi O'Neill Hurley O'Keeffe Millsap for the Accused