R v Love, 2021 ABQB 399

Court of Queen’s Bench of Alberta Citation: R v Love, 2021 ABQB 399 Date: 20210520 Docket: 190358788Q2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Michael Christopher Love Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the victim shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the

Honourable Madam Justice L. Bernette Ho _______________________________________________________ [1] The Accused is charged with sexual assault contrary to

section 271 of the Criminal Code of Canada in relation to sexualactivity that occurred in the early hours of December 28, 2015. The Accused admitted that he engaged in sexual activity with theComplainant but maintained that the Crown failed to meet its burden of proving lack of consent. Alternatively, the Accused maintainsthat he had an honest but mistaken belief in communicated consent. A. Applicable Legal Principles [2] I will begin with an overview of applicable legal principles.

i) The burden of proof and credibility [3] First, any person charged with an offence is presumed innocent. This means that the Crown bears the burden of proving anaccused is guilty and that burden never shifts to Mr. Love. The Crown’s burden is to prove all essential elements of the offence “beyonda reasonable doubt” – that is, a doubt based on reason and common sense which must be logically based upon the evidence or lack ofevidence. The standard is not beyond any doubt – it is not a standard of absolute certainty.

As was made clear by the Supreme Court ofCanada in R v Lifchus, (SCC), [1997] 3 SCR 320 at para 31, reasonable doubt cannot be based on sympathy orprejudice, and a reasonable doubt must not be imaginary or frivolous. [4] Second, I am also required to follow the approach outlined by the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742, as discussed by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299.The Ryon decision clearly explains what the W(

D) analysis is aimed at achieving and provides useful guidance regarding the assessmentof credibility of the accused (or other exculpatory evidence) within the context of the criminal burden and standard of proof. Ryoninstructs at para 51 (ii) to (iv) that: (

a) If I believe the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if I am not confident that I canaccept the Crown’s version of events, I must acquit. (

b) While I must attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibilitycontest requiring me to decide that one of the conflicting versions is true. If, after careful consideration of the evidence, I am unable todecide whom to believe, I must acquit. (

c) Even if I completely reject the accused’s evidence (or where applicable, other exculpatory evidence), I may not simply assume theCrown’s version of events must be true. Rather, I must carefully assess the evidence I do believe and decide whether that evidencepersuades me beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or where applicable, otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [5] The Court of Appeal clarified at paragraph 18 of the Achuil decision what was intended by the phrase, “not confident theycan accept the Crown’s version of events” referenced in Ryon.

There, the Court noted that “…it may be safer to revert to the wordingproposed in R v Gray, 2012 ABCA 51 at para 42, specifically: In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. (Again subject todefences with additional elements such as an objective component). [6] Essentially, the W(

D) instruction reinforces that the onus rests with the Crown throughout to prove all elements of theoffence beyond a reasonable doubt. I am required to consider the evidence as a whole: R v Morin, (SCC), [1988] 2 SCR345 at para 361 and 362. [7] Third, in assessing credibility, I am required to apply the same standards of assessment to all witnesses, again, alwaysbearing in mind that the Crown bears the burden of proof.

I should not impose an elevated or more stringent standard to the testimony ofany one witness, and I should not be more forgiving of inconsistencies or improbabilities of one witness as opposed to another: R vHowe, (ONCA) at paras 59 – 64. [8] Justice Ferguson wrote the following in R v Storey, 2010 NBQB 80 at para 78 regarding the assessment of credibility: No longer are judges encouraged to consider demeanour evidence to be a determining or even central tool in credibility assessment:[citations omitted].

Rather, the proper approach is to consider the evidence of a particular witness against the backdrop of the rest of theevidence led or other evidence tendered, searching for connectors that may not necessarily rise to the level of legal corroborationbetween witnesses, the other evidence tendered or a combination of the two in deciding what worth should be attributed to it.

In the finalanalysis it becomes a matter of determining the veracity of the evidence utilizing the age old tools of logic, reason and common sense inmeasuring the probability, if it is deductible from the evidence, that the witness or witnesses’ honesty on the central issue or issues isassailable.

[9] In arriving at my findings of fact, I may accept all, some or none of the evidence of a particular witness: R v JHS, 2008 SCC30 at para 10. ii) The Law of Sexual Assault [10] In R v Ewanchuk, (SCC), [1999] 1 SCR 330 (SCC) Justice Major, writing for the majority,comprehensively reviewed the elements of the offence of sexual assault. Major J wrote at paras 25 and 26: 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’s actionswere voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens reawith respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, and R. v.Chase, (SCC), [1987] 2 S.C.R. 293.

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] [11] Later at paras 29 and 30, Major J wrote: While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by thetrial judge, or jury, in light of all the evidence.

It is open to the accused to claim that the complainant’s words and actions, before andduring the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. 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. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including anyambiguous 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. [12] In R v JA, 2011 SCC 28 , [2011] 2 SCR 440, the Supreme Court again dealt with consent as it related to sexualassault.

The Chief Justice, writing for the majority, summarized the Court’s analysis of the actus reus from Ewanchuk at paras 45-47: As held by Major J. in Ewanchuk, “[t]he absence of consent . . . is subjective and determined by reference to the complainant’ssubjective internal state of mind towards the touching, at the time it occurred” (para. 26 (emphasis added)). The trier of fact mustdetermine what was going on in the mind of the complainant in response to the touching. The majority repeatedly underlined that thefocus is on the complainant’s “state of mind”: paras. 26, 27, 29, 30, 33, 34 and 48; see also R. v.

Park, (SCC), [1995] 2S.C.R. 836, at para. 16, referring to the consent of the complainant as a “mental state” (per L’Heureux-Dubé J.). Moreover, as notedabove, the complainant is not required to express her lack of consent: M. (M.L.). Rather, the absence of consent is established if thecomplainant was not experiencing the state of mind of consent while the sexual activity was occurring. The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuk, at para. 26. Thecomplainant’s views towards the touching before or after are not directly relevant.

An offence has not occurred if the complainantconsents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed ifthe complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact. The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity atthe time it occurred.

It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by therelationship between the accused and the complainant. There is no defence of implied consent to sexual assault: Ewanchuk, at para 31. [13] With respect to the mens rea of sexual assault, I must consider the common law and

section 273.1 and 273.2 of the CriminalCode. If an accused raises the defence of honest but mistaken belief in consent, there must be plausible evidence in order to give suchdefence an air of reality. Further, if the accused was reckless, willfully blind, or failed to take reasonable steps in the circumstancesknown to the accused at the time to ascertain that the complainant was consenting, the accused may not rely on honest but mistakenbelief in consent.

Silence, passivity and ambiguous conduct do not constitute consent from the perspective of the analysis of the mens reaof the accused: Ewanchuk at paras 51 and 52. For this reason, the Court in R v Barton, 2019 SCC 33 at para 92 described the defencemore accurately as the “honest but mistaken belief in communicated consent” [emphasis in original]. B. The Crown’s case against the Accused [14] The Crown submitted that there are several pathways to conviction in this case. Firstly, the Crown invites me to convict theAccused on the strength of the Complainant’s evidence that he did not consent to any sexual activity.

Secondly, the Crown submits thatbased on the Accused’s own evidence, I may conclude that he committed a sexual assault against the Complainant. [15] There are no issues regarding the first and second element of the actus reus of the offence as the Accused admitted that heengaged in sexual activity with the Complainant during the early morning hours of December 28, 2015. The third element requires me todetermine whether the Complainant was not subjectively consenting in his mind at the time the sexual touching occurred. The Crownmust prove this beyond a reasonable doubt in order to prove the absence of consent.

i) The Complainant’s testimony

[ 16 ] The Crown respectfully submitted that the Complainant’s testimony was unequivocal; he did not consent to any sexual activity. The Crown further submitted that inconsistencies in the Complainant’s testimony related to collateral matters that should not give rise to a reasonable doubt. I disagree. There were significant issues with the Complainant’s testimony. He added details at trial that he had never told police and his evidence in regards to certain matters changed. There were also areas where his evidence conflicted with that provided by the Accused’s sister.

I understand that I am able to accept all, some or none of a witness’s testimony and I have considered that the Complainant was consistent in his evidence that he did not consent. However, on the whole of the evidence, the inconsistencies, differences and points of conflict lead me to conclude that the Complainant’s testimony was wholly unreliable. [ 17 ] The following are some of the inconsistencies, differences or points of conflict in the Complainant’s evidence. (

a) The Complainant was first interviewed about the events of December 28, 2015 in June or July of 2019 when he met with Detective Boyko in Toronto, after being contacted by a Detective with the Calgary Police Service. During cross-examination, several of his responses to questions changed, in that he provided additional detail or new information that was not provided during his initial police interview. For example, the Complainant testified at trial that after his pants and underwear were removed, his legs were splayed open so the Accused could insert his fingers in his anus.

He described the position as being similar to someone at a gynecologist’s office. However, he never mentioned his legs being splayed open to Detective Boyko during the initial interview. He also described that at one point, his legs could not move anywhere else while Mr. Love was touching the Complainant’s anus, which he had never mentioned before. (

b) After he entered the Accused’s bedroom and lay on the bed, the Complainant recalled his pants being pulled down from the ankle until they were fully removed. His underwear was also removed down to his knees and ankle area. He recalled Mr. Love being on top of him while the Complainant’s pants and underwear were fully removed. He also stated under cross-examination that he did not wear a belt and did not remember his pants being undone from the top at any point.

However, the photos contained in Exhibit 1, Tab 1 show that the Complainant wore a belt that night and show that his pants were undone from the top button at his waist. The photos also show that his pants were unbuttoned but not fully removed at the time that at least some sexual touching occurred. (

c) The Complainant played dead and kept his eyes closed when the Accused started to touch him. He testified that the lights were turned off after his pants were removed and the bedroom door was closed at the same time. He saw flashes of light which he believed was flash from a camera when photos were being taken of him. The Complainant also told Detective Boyko that there was a time when the Accused had his penis on the Complainant’s face and he remembered what he believed was a flash of a camera.

However, the Crown admitted that the flash on the Accused’s phone did not fire when the photos shown on pages 10 to 12 of Exhibit 1, Tab 1 were taken. In addition, there was no photo taken depicting the Accused’s penis on or near the Complainant’s face. (

d) The Complainant gave different accounts of how much he had to drink at the bar on the night of December 27, into the early hours of December 28. When he met with Detective Boyko in 2019, he told her that he could not even wager a guess as to how much he had to drink. At trial, he initially stated during direct examination that he could not specifically recall how much he had but described himself as being “really intoxicated” because he does not throw up from drinking unless he’s had too much. He recalled not having the best coordination.

Later during direct, he said that he remembered drinking relatively the same amount as Mr. Love. During cross- examination, he testified that he didn’t recall how much alcohol he consumed but would wager, in the context of his drinking habits, that he drank essentially the same amount as Mr. Love. When it was suggested that he had four to six drinks over the course of the night, the Complainant reverted to responding that he could not recall how much he had. (

e) There were a number of instances where the Complainant's recollection of events conflicted with the testimony of Nicole Love, the Accused’s sister. Ms. Love attended the bar to pick up the Complainant and the Accused in order to provide them a safe ride home. She spent time with them at the bar before taking them to McDonald’s and back to the Love’s home. She then ate McDonald’s with the Complainant and Mr. Love in the basement waiting to drive the Complainant home before she ultimately went upstairs because she was tired. The Complainant testified that he could not recall speaking with Ms.

Love at the bar for approximately an hour and he denied telling her that he was on academic probation because he had never been on academic probation. The Complainant also described sitting in the back seat of Ms. Love’s vehicle after leaving the bar and wanting to throw up. He told the others to be on “standby” to roll down the window in case he had to vomit. Finally, the Complainant testified that he vomited outward into the coffee table space in the Love’s basement after eating McDonald’s. All of this conflicted Ms. Love’s testimony. Ms.

Love distinctly remembered the Complainant’s use of the term “academic probation” because she had never heard of such term to that point in time. According to Ms. Love, the Complainant never asked anyone to be on standby to roll down the window on the drive home, nor did the Complainant throw up in the living room space of the basement. Ms. Love’s testimony was clear and detailed. She was forthright and she responsive to questions. I considered her to be balanced in her responses to both the Crown and Defence.

In short, I found her to be both a credible and reliable witness and the number of instances where her evidence conflicted with the Complainant’s heightened my concerns regarding the reliability of the Complainant’s testimony. (

f) The Complainant met with Crown counsel and Detective Jacobs in February 2021 for the purpose of preparing for trial. Notes produced from this meeting also revealed a number of issues regarding the Complainant’s trial testimony. For example:

(

i) The Complainant testified at trial that he recalled leaving the bar. However, the Complainant reportedly told the Crown and Detective Jacobs that he had no specific recollection about leaving the bar. When asked about this during cross-examination, he indicated he was willing to adopt the version in which he did not recall physically leaving the bar. (ii) The Complainant previously stated that he did not remember responding in any fashion when the Accused removed the Complainant’s pants by pulling them from the bottom, near his ankle.

At trial, the Complainant testified that he did not respond and acknowledged during cross-examination that there was an inconsistency in his response. (iii) The Complainant earlier reported that he remembered the Accused getting to his genitals but the order was “hazy”. During cross-examination, he agreed that he used the word hazy during the meeting (which he then later denied) but would not adopt that as his evidence at trial. He explained that his memory of the specific chronology of the events had become more clear. (

g) The following exchange occurred during cross-examination: Q: Everything I’ve just asked you about: you thrusting your hips into Mr. Love’s face, penis down his throat, you enjoying it, you both enjoying it. Are you saying that it didn’t happen or you just don’t remember it happening? A: What I’m saying is that I don’t remember enjoying it. I don’t remember thrusting my hips. I don’t – or sorry, I don’t remember thrusting my hips. I don’t remember what you are saying with respect to or suggesting, rather, with me moaning or breathing heavily.

Then, during re-examination, the following exchange occurred: Q: -- Mr. Niv suggested to you that this was a consensual sexual encounter and suggested specifically that you were enjoying it, and your response was, “I don’t remember enjoying it.” A: Yeah. So I have – like, I didn’t enjoy it, is what I’m saying to that. The Complainant provided a different response under oath thus introducing another inconsistency in evidence. [ 18 ] In addition, although not an inconsistency, the Complainant told Detective Boyko that he had no contact with the Accused after December 28, 2015.

The Complainant was shown several text messages exchanged between himself and the Accused during the spring of 2016.

During cross-examination, the Complainant acknowledged that the exchange occurred but he had no memory of the text messages and professed to have no recollection about them at trial, even after being presented with them by the Crown and Detective Jacobs in February 2021. [ 19 ] Given the reliability issues with the Complainant’s testimony, I conclude that the Crown has not established the absence of consent beyond a reasonable doubt. [ 20 ] With respect to the Crown’s submission that there is a second path to conviction based on the Accused’s testimony, I acknowledge that aspects of the Accused’s testimony are concerning.

However, I am not permitted to consider his testimony in isolation. I am required to consider all of the evidence before me in relation to each element of the offence and ensure that the burden of proof never shifts to the Accused. In my view, the Crown’s second path to conviction invites an improper shifting of the burden of proof to the Accused. [ 21 ] I find the Accused not guilty of the sexual assault charge before me. Heard on March 8 – 10, 2021. Closing submissions received March 29, April 9, and April 12, 2021. Dated at the City of Calgary, Alberta this 20 th day of May, 2021. L. Bernette Ho J.C.Q.B.A.

Appearances:

Aurelie Beland for the Crown Yoav Niv for the Accused