R. v. Townsend, 2023 BCSC 1236

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Townsend, 2023 BCSC 1236 Date: 20230511 Docket: 35242-2 Registry: Dawson Creek Rex v. William Fredric Townsend Before: The Honourable Mr. Justice Giaschi Oral Reasons for Judgment Counsel for the Crown: P.J. Beirne S.E. Cassell Counsel for the Accused appearing by videoconference: A.H. Zipp Place and Date of Trial/Hearing: Dawson Creek, B.C. December 7-9, 2022, May 8-9 and 11, 2023 Place and Date of Judgment: Dawson Creek, B.C.

May 11, 2023 Table of Contents The Evidence .. 3 Admissions of Fact 3 Complainant’s Evidence . 3 In Direct 3 Cross-Examination .. 5 Re-Direct 6 T.P. 6 Direct 6 Cross-Examination .. 7 Dr. Ulrike Meyer 8 Direct 8 Cross-Examination .. 8 The Accused . 9 Direct 9 Cross-Examination .. 12 Submissions .. 14 The Accused . 14 The Crown .. 15 Legal Principles .. 16

Code Provisions . 16 Essential Elements . 16 Consent 17 Reasonable doubt 17 W.(D.) Analysis . 19 Analysis .. 20 Accused’s Credibility . 20 L.D.’s Credibility . 22 Conclusion .. 25 Verdict .. 26 [ 1 ] THE COURT: We are here for me to deliver my reasons in this matter. I reserve the right to amend these reasons for grammar and clarity and to provide full citations and quotations. [ 2 ] The accused is charged with sexually assaulting L.D. on July 20, 2019, at or near Moberly Lake, British Columbia, contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ]. The accused has pleaded not guilty.

The Evidence [ 3 ] The evidence at trial consisted of admissions of fact and the testimony of L.D., T.P., and Dr. Ultika Meyer. The accused also testified. Admissions of Fact [ 4 ] The following admissions of fact were made: 1) On July 19, 2019, at some point between 4:00 p.m. and 5:00 p.m., the complainant had consensual vaginal intercourse with her boyfriend; 2) The complainant did not feel any genital discomfort before said intercourse and she did not feel any genital discomfort afterward; 3) Following the alleged assault, the complainant felt genital discomfort as reported to Dr.

Meyer on July 20, 2019; and 4) The complainant acknowledges that there is a possibility that she may have had a latent injury (of which she has no knowledge), which could have caused or contributed to the tenderness reported to and observed by Dr. Meyer. Complainant’s Evidence In Direct [ 5 ] The testimony of L.D., the complainant, in direct examination was as follows. She was 19 years of age at the time of the alleged offence and 22 years of age at the start of the trial. She was born and raised in Moberly Lake, British Columbia, on the Saulteau First Nation Reserve.

She attended school in Moberly Lake and later in the nearby community of Chetwynd. [ 6 ] She testified that she has known the accused since she was about 10 years of age. She testified that they both resided on the Saulteau First Nation Reserve. She said they were never friends and they never “hung out” together. He was more of a person that she knew. [ 7 ] The complainant testified that one evening in July, she and her close friend, T.P., went to the Link's Pub in Chetwynd. They arrived at the pub at 6:00 or 7:00 p.m. They had dinner, then played pool and had drinks.

While they were at the pub, the accused and P.G. entered the pub and sat at a different table. Towards the end of the night, the accused and P.G. played pool with the complainant and T.P.. At closing time, around midnight, the four of them went to a spot at Moberly Lake. She said she was slightly intoxicated by the time they left the pub. [ 8 ] She testified that they were at Moberly Lake for approximately 15 minutes. The accused then invited them to come to his house for drinks. The four of them then drove to the accused's house where they arrived at 1:00 or 2:00 a.m.

She testified that by this time, she had probably had eight beers. [ 9 ] At the accused's home, they began playing a drinking game called Sociables. She identified a photograph taken on July 20 at 4:00 a.m. that portrays the four of them playing the Sociables game. She testified that she probably had three drinks of Twisted Tea and

three shots of vodka when playing the game. She testified that after playing the game, she sat on the couch and listened to music. She felt quite intoxicated, was very tired, could not hold her head up, and was kind of blacking out. [ 10 ] She testified that she asked if she could lie down. She testified that at about 5:00 or 5:30 a.m., the accused escorted her to a bedroom where she could lie down. Her friend T.P. joined her in the bedroom for a short period of time, about 20 minutes, and then left to rejoin the others.

The complainant testified that she then went to sleep. [ 11 ] The complainant testified she was later woken by the accused who tapped her on the shoulder and asked if he could lay down beside her. She replied in the affirmative. She then rolled over such that her back was towards the accused. She testified that the accused began to compliment her on how pretty she was and said how much he liked her. She testified that he started to touch and squeeze her breasts, and his arms then started to move down her body and he put his fingers in her vagina.

She testified that she told him to stop and kept repeating herself. [ 12 ] She testified that he then got on top of her, pulled her pants or leggings off, and pulled her shirt up. She again testified that she asked him to stop, but he then penetrated her with his penis. She said that he penetrated her about three times. She testified she kept asking him to stop, but his reply was, "Just one more time." She testified that she did not want him to do any of these things and was scared. [ 13 ] She testified that she was eventually able to get him off of her by kicking him.

She then put her pants on, pulled her shirt down, grabbed her stuff, and ran out of the room. She testified that she then smacked P.G. on the shoulder, who was lying on the couch, and then went outside. [ 14 ] Once outside, she attempted to call T.P. eight or nine times as she wanted T.P. to come with her to the hospital to have a rape kit done. She eventually went to T.P.'s house, which was across the street from the accused's house. She testified that while outside, she observed the accused standing by the door and he seemed upset and angry.

When she returned from T.P.'s aunt's house, she again observed the accused punching the side of his house. [ 15 ] She testified that she and T.P. drove to Dawson Creek and went straight to the hospital. At the hospital, she spoke with police. Cross-Examination [ 16 ] L.D. was extensively cross-examined on the amount of alcohol she had consumed. In cross-examination, she testified that at the pub she had four or five teas and four or five shots, for a total of eight to 10 drinks. When asked if she also had beer and tequila, she replied she did not know, but then agreed that she had.

She was asked about the eight beers she had testified to drinking in chief. She responded that she meant eight sips of beer as part of the drinking game. She then said that she had no beer. [ 17 ] She was similarly asked about her statement to police where she said she had 10 or 12 beers. She replied that she meant 10 drinks, not exactly beer. [ 18 ] She agreed in cross-examination that she had told the accused he could lie down on the bed with her. She said that it was probably five minutes after he lied down that the sexual contact started.

It was suggested to her during her cross-examination that it was physically impossible for the accused to penetrate her if he was on his knees and she was on the bed. She replied that her legs were open. [ 19 ] Regarding her kicking or kneeing the accused, she did not agree that she kicked the accused rather than kneed him. She did, however, acknowledge that she told the police officer, “Puffer” that she had kicked him in the nuts. When asked what really happened, she said she kicked him with her knee and shin and hit his inside leg and groin. She said that this occurred while he was penetrating her.

She disagreed that this was not possible. [ 20 ] She also agreed that she messaged the accused at 8:03 to ask where T.P. was, and agreed that she could have gone to the hospital at Hudson Hope or Chetwynd, but went to Dawson Creek. Re-Direct [ 21 ] In redirect examination, L.D. was asked why she did not go to Chetwynd Hospital, to which she replied, "It does not have the best facility." T.P. Direct [ 22 ] T.P. testified in direct examination as follows:

a) She has known the complainant her whole life. The complainant is her best friend;

b) Regarding the events of the evening, she gave a brief overview saying they went to William's house and had drinks, that the complainant got tired and fell asleep in a room. She then went to a cousin's house. The complainant later called her, freaking out about William. She looked outside and saw William with his hands on his head. She then drove with L.D. to Dawson Creek for a rape kit;

c) She was unable to recall what they did before attending at William's house. She did not remember if she was with William and P.G. beforehand;

d) When asked what they were doing, she thought they played games and listened to music;

e) She agreed the complainant seemed intoxicated. She said she was also intoxicated;

f) She stayed with the complainant in the bedroom for probably 15 minutes;

g) She thinks that after she left the complainant, she went right away to her cousin's house, which is across the street;

h) When she got to her cousin's house, she hung out with them for a while;

i) The complainant called her and was crying. She looked outside and saw William with no shirt and his hand on his head;

j) She then went to the complainant's car and they drove to Dawson Creek. The complainant seemed overwhelmed and sad. Cross-Examination [ 23 ] In cross-examination, T.P. testified:

a) She did not recall going to Link's Pub or the lake;

b) She agreed that she had quite a bit to drink and was drunk;

c) She agreed the complainant seemed drunk and tired;

d) She did not agree that it was the accused who took the complainant to the bedroom;

e) She was unsure whether it was 1:00 a.m. or 3:00 a.m. that she went to her cousin's home. She acknowledged that in a statement to police, she said it was 3:00, whereas in prior evidence she said it was 1:00; and

f) She agreed that they would have left Moberly for the hospital at 7:30 a.m. Dr. Ulrike Meyer Direct [ 24 ] Dr. Ulrike Meyer testified in direct examination as follows:

a) She is a family physician with a focus on maternity, women's health, and sexual assault care;

b) On July 19, 2019, she was called into the hospital and arrived around 2:45 p.m.;

c) She did a sexual assault examination of the complainant;

d) The complainant was tired and tearful;

e) She described the process and procedure of the sexual assault exam;

f) She described that L.D. was quite tender over the entire genital area. She was so tender that a speculum could not be used. There was pain and severe discomfort. Cross-Examination [ 25 ] In cross-examination, Dr. Meyer testified:

a) She observed no cuts or bruises on L.D.;

b) Her report notes previous intercourse on July 19. She agreed that she did not know L.D.’s condition after that incident; and

c) The only thing reported was some bleeding from the vagina, and in the underwear, there was a bloody stain. The Accused Direct [ 26 ] As I indicated, the accused elected to take the stand. He testified in direct examination as follows:

a) He is 26 years of age, has a diploma from BCIT, and is currently employed as an apprentice with BC Hydro;

b) On the evening of July 19, 2019, he attended at the Link's Pub together with his friends P.G. and R.C. They had dinner and drinks at the pub and then played pool;

c) He could not recall what he ate for dinner but thought it was probably a burger and salad, and that it was consumed around 6:00 p.m.;

d) He testified that while playing pool, L.D. and T.P. were “rotating” around the pool table. He said that he and P.G. played a few games of pool with them;

e) Around closing time, the four of them left the pub at about 11:30 and drove to Spence Tuck, a park on Moberly Lake. He was a passenger in P.G.’s vehicle. L.D. and T.P. drove their own vehicle;

f) He said while driving to Spence Tuck, he took a nap. When they arrived, he discovered a text from L.D. advising him to bring wood;

g) They were at Spence Tuck for 15 to 30 minutes. They had one drink there, and he then offered that they could all go to his place. They then drove, again in separate vehicles, to his house;

h) They arrived at his house about 1:30 a.m.;

i) When asked how intoxicated he was by the time they arrived at his house, he replied that he had a little bit of a buzz, but was able to walk around good. He said L.D. seemed pretty intoxicated, as did the others;

j) When asked what they did at his house, he said that they played a game of Sociables for no more than two hours. He said alcohol was consumed while playing the game;

k) When asked what their sobriety was by this time, he replied that he had a pretty good buzz but was fine. He explained that he made sure that he drank water. He said P.G. was fairly intoxicated and pretty tired. He said that T.P. seemed alright but had gotten quieter. Regarding L.D., he said she seemed very intoxicated;

l) After they finished playing Sociables, he got out a karaoke machine, but said that they barely used it and just started listening to music;

m) At one point, he went to the bathroom, and when he came back, L.D. was asleep and T.P. was behind her. He thought it would be nice to give her a place to sleep, so he offered her a bedroom. He says that he walked her down the hall to his bedroom. T.P. followed. T.P. laid down with L.D. and he returned to the living room;

n) T.P. came out of the bedroom shortly thereafter, said she was going and left;

o) He and P.G. were having a drink, but P.G. was closing his eyes and not saying much. It was getting light outside, so he turned out the lights and turned off the music. He said that he decided to go see how L.D. was doing, to see that she was not throwing up in his bed;

p) L.D. seemed all right. He asked her if he could lay down and she said yes. He said he took his shirt and socks off, but left his pants on. He said he went to sleep;

q) He denied having any physical contact with L.D., denied touching her breasts, denied putting his hand down her pants, denied pulling off her leggings, denied having intercourse with her, and denied that she kicked or kneed him;

r) The next thing he recalled after falling asleep was being awoken by a pain in his groin. It was enough that he fell off the bed. He got up and then noticed that L.D. was gone. He believed that this occurred around 7:00 or 8:00 in the morning;

s) When asked if he saw L.D. leave, he replied, "Not really." He testified he then went to see what was happening. P.G. was sleeping in the living room and it was a mess. He went back to the bedroom and noticed that his Xbox, his prized possession, was missing. He then decided that he needed to see where L.D. was. He went outside and saw her vehicle. He says at this point he started to have a panic attack;

t) He testified that he was prone to anxiety attacks. When asked about going outside and pounding his fists against the wall, he did not deny this happened. He said he had a panic attack, that he had no idea what was happening, and that he started screaming and crying;

u) He acknowledged receiving a text from L.D. around 8:00 a.m. that said "Hey" and nothing else. He did not respond to the text;

v) He denied having any sexual contact with L.D. In fact, when asked this question, he testified that when he woke, he still had his pants and underwear on and that there were no stains on the bed [or hair]. He said that if he had sex with her, he would have remembered. Cross-Examination [ 27 ] In cross-examination, the accused testified:

a) At the pub, he was drinking Sleeman's honey brown ale. He could not recall how much money he spent at the pub. He did testify he spent six hours at the pub and said his drinking pace was one beer per hour. He agreed he had at least six beers;

b) He did not know L.D. and knew little about T.P., other than she was a twin. He said that they were more P.G.'s friends than his;

c) He guessed that they maybe played two or three games of pool with L.D. and T.P.;

d) He did not know who it was that suggested they continue drinking after the pub, other than it was not him. He said he was just tagging along;

e) Concerning his state of intoxication after leaving the pub, he agreed he was drunk, which he clarified meant he was a little giddy and having fun, but he was able to control himself and was disciplined. He said he could have driven, but did not, as it was not his car;

f) At the lake, he drank one Twisted Tea which the girls had brought;

g) He testified that he had no real conversation with L.D. When asked how it was that she had his phone number to text him about getting the wood, he agreed that at some point during the night they exchanged numbers, but said this was just being polite. He did not agree they exchanged numbers because he was interested in her;

h) He agreed he offered his house. This was about 1:30 in the morning;

i) At his house, he and P.G. drank his Bud Light beer and the girls drank the drinks they brought. There was also vodka shots, and he agreed that about three shots of vodka sounded right. He did not agree that there was any tequila drinking;

j) They played Sociables for no more than two hours;

k) By 3:30, he was “pretty buzzed”, but mostly tired;

l) It was about 5:30 that L.D. was passed out on the couch. They had continued to drink but at a more casual pace;

m) He took her to the bedroom. T.P. came with them and laid down with L.D. He went back to the living room and had one more beer with P.G.;

n) T.P. left shortly after he returned to the living room. He did not know where T.P. was going when she left and he did not agree that his lack of concern was because he was intoxicated. Rather, he said it was a small community;

o) He testified that any touching while he was on the bed with L.D. was accidental when he was rolling around;

p) He denied he put his hands up her shirt or down her pants and denied having intercourse with her. He said that he was too tired to do these things and was not interested in her;

q) He said it was 10 to 45 minutes before he took off his shirt and socks, which he did because he was uncomfortable. The next thing he recalled was the serious pain that woke him. He rolled off the bed and onto the floor. The next thing he noticed was L.D. was gone. He had not seen her leave;

r) He agreed he was suggesting L.D. had kicked him and said he was confused as to why;

s) When it was suggested to him that he implied in his evidence in chief that L.D. stole his Xbox and was responsible for the shape of his house, he replied that was not his intention and he did not know who had taken the Xbox;

t) He agreed he did not respond to her text by asking if she had kicked him or taken his Xbox;

u) He said he drove away before L.D. did;

v) It was suggested that he checked his bed for stains, to which he replied that he did not have to wash the bedding, and said this to clarify that there was no sex;

w) He said he had been asleep for 45 to 60 minutes before he received the blow. Submissions The Accused [ 28 ] The accused submits that L.D. is not a credible and reliable witness. He submits that her evidence is not reliable because of the amount of alcohol she consumed and her level of intoxication. He submits that her evidence about the amount and type of alcohol she consumed was inconsistent with what she told police and internally inconsistent.

He submits her evidence about the knee or kick to the accused was inconsistent in terms of whether she kneed or kicked him, and about where she kneed or kicked him. [ 29 ] The accused submits that L.D.’s evidence was incredible or unbelievable, in that:

a) Penile intercourse could not have occurred with her lying on the bed and the accused kneeling;

b) It was physically impossible for her to have kicked or kneed the accused while he was penetrating her;

c) The accused was simply too tired to have done what she said he did; and

d) L.D.’s evidence that the accused told her, "I really like you and the boys really like you," is contrary to human experience. [ 30 ] The accused submits that his evidence, in contrast, was credible and reliable, that he gave a plausible explanation for what occurred, and that his evidence was without internal or external inconsistencies. In particular, he submits:

a) He was not drunk, whereas L.D. and T.P. were;

b) If he was drunk, it was not to the level where he could not have a proper recollection;

c) He was not interested in T.P. and made no suggestive comments during the evening;

d) The evidence of his emotional state, as observed by L.D. and T.P. in the morning, is evidence only of his emotional state and that he

suffers from anxiety. [31] The accused submits that the evidence in this matter must be assessed within the R. v. W.(D.), [1991] 1 S.C.R. 742, , (S.C.C.) [W.(D.)] framework. The Crown [32] The Crown agrees this is a W.(D.) case. The Crown agrees that L.D.’s alcohol consumption is a factor, but submits that L.D. wasa credible and reliable witness, notwithstanding her alcohol consumption. The Crown says she was non-argumentative, responsive,candid, and straightforward in giving her evidence.

Further, notwithstanding her alcohol consumption, she was able to recall and recountthe events, and her recollection is largely corroborated by the evidence of T.P. and the accused. [33] The Crown further submits that her evidence of her emotional state is corroborated by T.P. and Dr. Meyer, and that her evidenceof what transpired is corroborated by the fact she immediately attended for a rape kit. [34] In contrast, the Crown submits the accused was argumentative in giving his evidence, and that:

a) He minimized his state of sobriety;

b) His evidence that he did not see L.D. leaving the bedroom is illogical; and

c) His evidence of looking around the house and the missing Xbox is nonsensical and does not explain him having a panic attack orotherwise explain what was observed of him outside the house. Legal Principles Code Provisions [35] Sections 265(1) and (2) of the Criminal Code address assaults, including sexual assaults and consent. It provides, in part: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; . . .

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. Essential Elements [36] Although the parties did not address the elements of sexual assault, for completeness they are: (

i) the accused touched thecomplainant, (ii) the touching was intentional, (iii) the touching was sexual in nature, (iv) the complainant did not consent to thetouching, and (

v) the accused knew the complainant did not consent to the [sexual] touching in question: R. v. Gaglardi, 2022 BCSC1681, at para. 35, as follows: [35] To prove sexual assault under s. 273 of the Criminal Code, the Crown must establish the following essential elements of theoffence, namely that: (

i) the accused touched the complainant, (ii) the touching was intentional, (iii) the touching was sexual in nature,(iv) the complainant did not consent to the touching, and (

v) the accused knew the complainant did not consent to the touching inquestion. [37] The elements of sexual assault that are contested here are whether the sexual touching occurred. Consent [38] The meaning of consent is addressed in ss. 265(3) and (4) and 273.1 of the Criminal Code. I do not intend to address consentfurther, as it was not raised as an issue and L.D. clearly testified that she repeatedly told the accused to stop, indicating her lack ofconsent. Reasonable doubt [39] The onus is on the Crown to prove all of the elements of the offence beyond a reasonable doubt: R. v.

Morin, [1988] 2 S.C.R.345, (S.C.C.) at 361-362. [40] A reasonable doubt does not involve proof to an absolute certainty, but requires something more than that the accused isprobably or likely guilty. Along the spectrum of probabilities, a reasonable doubt lies much closer to absolute certainty than to proof on abalance of probabilities. A reasonable doubt must be based on reason and common sense and logically derived from the evidence orabsence of the evidence: see generally R. v. Lifchus, [1997] 3 S.C.R. 320, (S.C.C.), at para. 36, and R. v. Starr, 2000SCC 40, at para. 242.

[41] In R. v. Ewanchuk, [1999] 1 S.C.R. 330, (S.C.C.), the Supreme Court of Canada has made it clear that thereasonable doubt concept applies equally to issues of credibility and reliability. [42] Credibility and reliability are distinct but related concepts, although they are often considered together. Credibility concerns thehonesty of a witness. Reliability concerns the ability of a witness to provide accurate information: i.e., the ability of the witness toperceive events, to accurately recall the events perceived, and to recount those events accurately.

A witness must be credible to givereliable evidence, but a finding that a witness is credible does not necessarily mean the witness is reliable. A credible witness can giveunreliable evidence. [43] Other factors to be considered when assessing credibility and reliability are:

a) The ability of a witness to resist the influence of interest to modify their recollection;

b) Internal inconsistencies in the evidence of a witness;

c) Prior inconsistent statements made by a witness;

d) Inconsistencies between the witness's testimony and the testimony of other witnesses;

e) The existence of independent evidence that confirms or contradicts the witness's testimony, i.e., does the witness's evidenceharmonize with the independent evidence that has been accepted;

f) Whether the witness has given exaggerated or embellished evidence, (although absence of exaggeration or embellishment does notnecessarily enhance credibility);

g) Whether the witness has a motive to lie, (although again absence of a motive to lie does not generally enhance credibility);

h) Evidence pertaining to the honesty and forthrightness of the witness, such as having given false statements to police;

i) The sense of the evidence, when weighed with common sense does it seem impossible or unlikely, does it make sense;

j) The demeanour of a witness, but this is to be used with caution. (See generally: Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296; Novak Estate (Re), 2008 NSSC 283 at paras.36-37; and R. v. S.A.S., 2021 BCPC 69 at paras. 15, 21-25.) [44] Ultimately the question is whether the evidence of the witness is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time. W.(D.) Analysis [45] As the accused has testified, the analytical framework set out by the Supreme Court of Canada in W.(D.) applies.

The frameworkestablished in W.(D.) is: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need [to] [sic] firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second,if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence inthe context of the evidence as a whole. . . . Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [46] In R. v. C.W.H., (B.C.C.A.) at 11, a fourth instruction was added by the Court of Appeal, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [47] The rationale behind the W.(D.) framework was explained in R. v. Dick, 2018 BCCA 343 at para. 27.

Its purpose is to ensure thatthe principle of reasonable doubt is clearly respected and there is no risk that the burden of proof, which is throughout on the Crown, isunintentionally shifted to the accused. [48] These are the principles that I apply, bearing in mind that this is not a credibility contest between L.D. and the accused, and thatthe burden is on the Crown throughout to prove the essential elements of the offence beyond a reasonable doubt. Analysis

[ 49 ] After careful consideration of all the evidence and the submissions of the Crown and the accused, I am satisfied that the Crown has proven its case beyond a reasonable doubt. Accused’s Credibility [ 50 ] I will first address the credibility and reliability of the accused's evidence. As per the W.(D.) framework, if I believe him, I must acquit. [ 51 ] I have several concerns about the accused's evidence which cause me to disbelieve his evidence. [ 52 ] First, he was reluctant to admit his level of intoxication on the night in question.

He testified in chief that by the time they arrived at his house, he had a little bit of a buzz but was able to walk around good. When asked in chief of his level of sobriety after the Sociables game, he replied he had a pretty good buzz, but was fine. He explained that he made sure to drink water. [ 53 ] However, in cross-examination, he admitted to having at least six beers at the pub and a Twisted Tea at the lake.

When pressed in cross-examination, he admitted to being drunk by the time they got to Spence Tuck, but then said he was a little giddy, chatty, and just had a buzz. [ 54 ] He testified in cross-examination that further alcohol was consumed playing the game, namely an unspecified number of beers and about three shots of vodka. He testified in cross-examination that by 3:00 a.m. he was pretty buzzed. When it was put to him that he had difficulty saying the word "drunk", he replied that if he had to, he could still drive.

He also testified to having at least one more beer with P.G. after putting L.D. in the bedroom. [ 55 ] In view of the amount of alcohol the accused had consumed that night, I do not accept his evidence that he merely had a “buzz”. He was intoxicated to some level and his reluctance to admit this, unlike the claimant, undermines his credibility, although not necessarily his reliability. [ 56 ] Second, although the accused purported to have no interest in L.D., he agreed in cross-examination that they had exchanged phone numbers.

When it was put to him that they exchanged numbers because he was interested in her, he denied this, saying he was only being polite. I do not accept this evidence. People exchange numbers so they can contact each other. His reluctance to admit even a slight interest in L.D. was self-serving and intended to bolster his defence that he could not have committed the assault because he was not interested in her. [ 57 ] Third, the accused also testified and submits that he was simply too tired on the night in question to have done what L.D. alleges.

I accept that the accused was undoubtedly tired, but do not accept that he was too tired to attempt to have sexual contact with L.D. It was only after returning to the living room and when P.G. fell asleep or passed out that he went to bed. In other words, he went to bed because no one else was awake, not because he was tired. [ 58 ] Fourth, the accused testified he did not observe L.D. exit the bedroom. This is simply not believable. She would have had to climb over him to exit the room and he would have seen her.

His evidence in this regard is unbelievable. [ 59 ] Fifth, the accused's explanation for his behaviour outside the house, i.e., the punching of the house, is not believable. He says he was confused, which he attributed to finding his Xbox missing and the house being a mess. He testified he had a panic attack outside the house. I do not accept his evidence that his Xbox was missing and do not accept that he could have been surprised upon finding the house was in a mess.

He was the last one to go to bed and would have known the state of the house. [ 60 ] In any event, the missing Xbox and the house being a mess do not explain his severe reaction of crying, screaming, and punching the house. [ 61 ] Finally, and most significantly, the accused's evidence of what transpired in the bedroom simply makes no sense and is not believable. In direct examination, although admitting to a sudden pain in the groin, he denied that L.D. had kicked him. However, in cross-examination, he conceded that he was suggesting L.D. had kicked him and was confused as to why.

This testimony makes absolutely no sense and is not believable. L.D.’s Credibility [ 62 ] I now address the credibility and reliability of L.D.’s evidence. [ 63 ] I agree with the Crown that L.D. gave her evidence in a candid and straightforward manner. She was not argumentative or evasive during cross-examination and she readily admitted to things that did not necessarily help the Crown's case, such as her level of intoxication.

She also readily admitted to things she could not recall. [ 64 ] I agree with the accused that L.D.’s level of intoxication is an important factor to consider in assessing the reliability of her evidence. By her own admission, she was severely intoxicated by the time she went to lie down. However, notwithstanding her level of intoxication, almost all of her evidence of what transpired on the night in question is corroborated by other independent evidence, including the evidence of the accused. In particular:

a) Her evidence of what transpired at the pub is corroborated by the evidence of the accused;

b) Her evidence of going to Spence Tuck or Moberly Lake after the pub is corroborated by the accused;

c) Her evidence of spending 15 minutes at Moberly Lake is corroborated by the accused;

d) Her evidence of arriving at the accused's house between 1:00 or 2:00 a.m. is corroborated by the accused, who said it was about 1:30;

e) Her evidence of playing the Sociables game and then listening to music was corroborated by the accused;

f) Her evidence that it was 5:00 or 5:30 when she went to lie down is corroborated by the accused, who said it was about 5:30;

g) Her evidence that it was the accused who took her to the bedroom and T.P. followed is corroborated by the accused;

h) Her evidence that T.P. stayed with her for a short while is corroborated by T.P. and the accused;

i) Her evidence that the accused asked her if he could lie down on the bed with her is corroborated by the accused;

j) Her evidence that she kicked or kneed the accused is ultimately corroborated by the accused's evidence of having a sudden pain in his groin, and his reluctant admission in cross that he was suggesting she kicked him;

k) Her evidence that she observed the accused standing by the door after she left the house is corroborated by the accused and T.P.

l) Her evidence that she observed the accused punching his house is corroborated by the accused. [ 65 ] I note that the extent of the corroboration includes details such as staying 15 minutes at Moberly Lake, and that it was 5:00 or 5:30 when she went to lie down, and the corroborating evidence includes events both before and after the alleged assault. [ 66 ] Given that so much of L.D.’s evidence is corroborated, I find that, notwithstanding the amount of alcohol she drank, she had a good and accurate recollection of the events of the night.

In other words, I find her evidence is reliable. [ 67 ] I pause to note that much of the corroborating evidence I have referred to could apply equally to the evidence of the accused in reverse. However, the reliability of the accused's evidence due to intoxication was not in issue. It is his credibility or honesty that is in issue.

In contrast, it was the reliability of the complainant's evidence that was in issue and the factors I have referred to corroborate her evidence and disprove that her evidence is unreliable. [ 68 ] I agree with the accused that there is some inconsistency in the complainant's evidence as to the amount of alcohol she drank. However, I do not agree that the inconsistency is quite as the accused submits, and more importantly, given that she openly admitted a high level of intoxication, the precise amount of alcohol she consumed is not particularly material.

Moreover, I accept her evidence that when she referred to beers in her evidence in chief and to the police officer, she meant drinks generally. [ 69 ] The accused submits that L.D.’s evidence is not credible because she was inconsistent about whether she kneed or kicked the accused and precisely where. I agree that L.D. could have been more precise when making her statements to police or giving her evidence in court, but I do not agree that it undermines her credibility. Whether it was her foot, shin, or knee that made contact with the accused is not material.

Similarly, whether the contact was made with the accused's leg or groin is immaterial. What is material is whether the event happened and, based on the corroborating evidence of the accused of sudden pain in his groin, it did happen. [ 70 ] The accused submits that L.D.’s evidence is not believable in that penetration could not have occurred with her on the bed and the accused on his knees, and she could not have kicked or kneed him in those positions. Again, I do not agree. L.D. and the accused are both young and, from appearances, appear flexible.

Her evidence does not strike me as unbelievable in any way. [ 71 ] The accused further submits that her evidence is unbelievable or contrary to human experience in that she said the accused told her, "I really like you and the boys really like you." The accused submits "historical human experience never records that telling a woman that others think she is attractive is a successful method of courtship." Again, I simply do not agree. Complimenting someone is, to use the words of the accused's counsel, a successful method of courtship.

Conclusion [ 72 ] I therefore prefer the evidence of L.D. over the evidence of the accused as to what transpired in the bedroom. However, as I have addressed, this is not a credibility contest. Even if I believe L.D., I must consider all of the evidence and determine if the accepted evidence establishes the guilt of the accused beyond a reasonable doubt. [ 73 ] I also accept the following additional evidence:

a) The admitted fact that L.D. did not have genital discomfort before the alleged assault, but had genital discomfort after the alleged assault;

b) T.P.’s evidence that L.D. called her crying and seemed overwhelmed on the way to the hospital;

c) The fact that L.D. immediately drove to the hospital for a rape kit;

d) Dr. Meyer's evidence that L.D. was tearful; and

e) The evidence that the accused was distraught after the alleged assault and was seen punching the house. [ 74 ] In my view, the above accepted evidence corroborates L.D.’s version of what transpired. [ 75 ] I pause to note that I do not find the sexual assault report of Dr. Meyer’s to be otherwise particularly material. Given that L.D.

had had sexual intercourse on July 19, 2019 between 4 and 5 p.m. with her boyfriend, the tenderness observed by Dr. Meyers could have been due to that incident, which is recognized as a possibility in the Admissions of Fact. [ 76 ] Considering all of the evidence, I am satisfied beyond a reasonable doubt that:

a) The accused touched L.D.;

b) The touching by the accused was intentional;

c) The touching was sexual in nature as it involved touching on the breasts and on the vagina and having sexual intercourse;

d) L.D. did not consent to the touching as she repeatedly asked the accused to stop and eventually kicked or kneed him to get him to stop; and

e) The accused knew L.D. did not consent to the sexual touching. Verdict [ 77 ] Please stand, Mr. Townsend. On the sole count of the indictment, I find you guilty. “Giaschi J.”