Her Majesty the Queen - v. -, 2021 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 53 Date: October 19, 2021 Information: 90416906 Location: Moosomin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darryl James Mintuck Appearing: Todd J. Wellsch, QC For the Crown Shane B. Wagner For the Accused Note: Pursuant to

section 486.4 of the Criminal Code the Court made an order directing that the identity of the victim, and any information that could disclose the identity of the victim, shall not be published in any document or broadcast or transmitted in any way. JUDGMENT B. HENNING, J [ 1 ] The accused is charged that on October 17, 2020, in the Rural Municipality of Walpole in the Province of Saskatchewan, he committed a sexual assault on S.P. contrary to

Section 271 of the Criminal Code of Canada . The Crown proceeded summarily and a trial was held at Moosomin on August 19, 2021. Evidence

[ 2 ] At the outset of the trial, identity of the accused was admitted and a statement by the accused was admitted into evidence as being voluntary. Mr. Mintuck was examined in court on that statement and some details in his testimony he changed after consideration of this statement. The oral evidence in the case is summarized as follows. [ 3 ] The first witness was Cst. James Ross who indicated that he received a complaint from RCMP dispatch originating from S.P. and he contacted her by telephone on October 18, 2020 at about 5:00 p.m. with respect to it.

She came in and gave a recorded statement and provided what is Exhibit P-1 (P-1) at the trial which is a sheet of four screen captured pictures of text messages which was identified and discussed by both the accused and the complainant in their evidence. In evidence, they agreed that the messages originated with them and were sent to each other. Cst. Ross described arresting the accused later without incident. In cross-examination he did not observe anything ‘noteworthy’ regarding the complainant at the time of the interview, but he did say she appeared ‘upset’.

He did not observe any effect of alcohol during his discussions with her. He indicated that the accused’s partner is called ‘T.B.’ and she was referred to at several points in evidence but not in any manner that is significant except for her absence at the time in question that the complaint was said to have occurred. [ 4 ] The principal Crown witness was the complainant, S.P., who testified next. She indicated she is 42 years of age, 5’9” tall and weighed 111 lbs. She lived in the Wawota area and is married with four children.

She now has her own business but had worked at the Uptown Bar in Moosomin at the time of the incident as a waitress with other duties as well. Before that last employment she had worked at ‘the Squire’, another restaurant and bar connected with a hotel or motel, also in Moosomin. She got to know the accused while working there the previous year. She stated they became friends and she knew that the accused had a girlfriend named T.B. whom she also got to know. [ 5 ] S.P. said they would visit at the bar and talk, and also came to socialize outside of the bar.

She had visited his residence and he had visited at her residence. Her husband had been present for one visit as well as her daughter, but there had never been any physical contact between them. [ 6 ] S.P. went on to describe the incident of October 17, 2020. She received a text message from the accused asking if she had had a long night and invited her to come by his place. They exchanged a number of text messages which she identified were contained in P-1. They are screen captures from a mobile phone device and more than one exchange is contained on each of four pictures.

This document has been reproduced in easier to read typewritten form at the end of this judgment. She indicated that she exchanged texts with many customers and had been doing that with the accused for several months. She described these as casual ‘chit-chat’. She examined P-1 in court and indicated the sequence of the messages and stated that the first message came in when she was still asleep at about 7:34 a.m. She replied to that message at about 9:30 a.m. indicating she had to do some things. She said she had to ‘pick up her kids’ and suggested the next day for getting together.

Eventually she said she would come over that day when she was done with other things. She sent a message at 11:06 a.m. indicating she was ‘on her way’. His residence was relatively close to hers but it was in the country - a house on a gravel road. She stated that she got there at approximately 11:15 a.m. [ 7 ] S.P. described events further, indicating that she entered the house remarking that it was cold while warming her hands. Mr. Mintuck offered to ‘warm her up’. She stated she thought that they would only visit.

She took her moccasins off and described what she was wearing as her ‘PJs’ which were sweat pants and a similar loose fitting top. There was no indication that this outfit was revealing and she said she goes out in this outfit, including to stores. [ 8 ] She said she sat on the couch and they talked and that she had two Coors Light beers at this time. They talked for some time, at which point she stated that he grabbed her left arm and grabbed her breasts. She indicated that she said ‘no’ and resisted this and left. She said that she was crying.

This was her original recounting of the event, but considerably more detail was added in further examination and cross-examination. [ 9 ] She said that when she left, she called her best friend, N.M. As she was on the phone a message came in from the accused, which was picture #3 on P-l. Her reply to that message was picture #4. In #3 he had apologized. These messages would be consistent with S.P.’s story, that is, that something offensive had happened for which Mr.

Mintuck apologized saying in the message “I thought that’s what you wanted” to which she responded “I never once said that’s what I wanted and said ‘no’ multiple times”. His final message was “I will not bother any more sorry for what I did”. In his evidence Mr. Mintuck puts a different

interpretation on these words than does S.P. [ 10 ] S.P. stated that her friend N.M. told her to go home and have a bath. She stated her husband was in northern Alberta at this time working. She indicated that she picked up her friend N.M. a bit later and went to work. She messaged the accused’s girlfriend T.B. to come to the bar and she told her what had happened. She worked that day although she said she was ‘a mess’.

[ 11 ] The next day S.P. spoke with a cousin and decided to go to the police which she did around 4:00 p.m. This is consistent with Cst. Ross’s evidence. She was at one point before meeting with the police in a vehicle heading with T.B. and N.M. to the accused’s house where it appears that T.B. lived as well, and mistook a police vehicle for the accused’s vehicle and turned around. Nothing turns on that point although it was canvassed in some detail.

During cross-examination the details of the incident of the 17 th became much clearer, but the complainant did not retreat from her original story in significant ways. [ 12 ] In cross-examination S.P. indicated she had been married for seven years and had been in a relationship with her husband for longer than that and that he works out of town at times. She stated she had no physical or mental issues nor any criminal record. She was asked if she used alcohol the day of court and indicated that she had not, but she stated she does use alcohol.

She explained that the accused was a friend who helped at times in the bar where she worked and was comfortable with him. They had been in each other’s houses and knew each other’s partners. They both smoked and would go outside to smoke together. [ 13 ] S.P.’s drinking was gone over in detail at several points. She stated that she would have ‘a buzz’ with six beer. She said that October 16 th was a Friday and that she had worked that day getting home at 10:30 p.m. That is confirmed in P-1. They texted and she went over to the accused’s house on the 17 th “to have some fun”.

She stated her husband had been gone for two days and he would have no problem with her visiting Darryl. She also stated that she and her husband never argue over her interactions with men at the bar. S.P. stated she had no drugs or alcohol before going to see the accused. She used the main entrance, entering after knocking. She stated she brought two Coors Light beer with her. She admitted she may have told the police that she had no alcohol, but she was not evasive in speaking about that point in court. She said the TV was already on. She sat on a couch facing the TV upon entering.

S.P.’s recollection of details on the witness stand was greater than was included in her statement, or indeed, in direct examination. Such is not unusual when witnesses have had time to reflect on events or are questioned about them to focus their thoughts. It is not often the case that a statement, even if recorded, can be comprehensive and exact in every detail.

A later deviation on details is not necessarily a fact that detracts from credibility, although of course, on a major point it may be. [ 14 ] S.P. said there was a ‘beer fridge’ next to the couch, and she was clear in her evidence that she had two beer in total, and not ‘her’ two beer plus two more. How those beer were drunk was not detailed – she could have offered the accused one of hers and then accepted a beer from his beer fridge, or it could have occurred differently.

This was never indicated, but she was unwavering in stating that her consumption was limited to two beer when this question was revisited more than once. [ 15 ] She went on to state that she allowed the accused to give her a massage. They were on the same couch, it appears from the evidence, and she turned her back to him to accommodate this, and it is possible that she put one or both legs onto the couch to permit this. This massage she described in non-sexual terms. It consisted initially of rubbing on her back and shoulders.

She said she might tell her husband about such an occurrence but it was not an incident of concern for her at that point. The rubbing was acceptable and occurred on her back and arms, but not her stomach. [ 16 ] S.P. proceeded next to outline what was not acceptable – the accused went to her breast area with his hands, initially just one with his left arm to her left breast. They would have been facing in the same direction with her back to him at this point. This to her was outside her consent to a massage. She said she grabbed his hand and removed it, saying ‘no’.

She stated that he then used both hands, tightening his hands and arms around her and going under her clothing and moving his hands lower, but not to her stomach. [ 17 ] When asked in cross-examination, she stated that she may have said “I don’t have any boobs” to deflect him when the unwanted actions began. This is not in the statement she made to police. It was suggested in cross-examination that she did not say no, that all of the acts were consensual and that she guided his hands to her stomach or elsewhere. She had stated that the unwanted touching initially occurred over her clothes. Mr.

Mintuck is a great deal larger and heavier than S.P. She stated that she pulled forward at this point but could not immediately stand up, but did do so quite quickly, although exact timing was not stated. That is not, in my opinion, unusual that persons involved in a physical incident cannot or do not estimate time accurately or at all. She stated his hands were also below her waist and that she said no to that as well. She suggested that she said no multiple times, perhaps seven or eight times.

She stated that she was concerned that he would get violent. [ 18 ] She denied that she ever did anything to encourage this behavior and did not rub Mr. Mintuck’s leg. When asked if the accused had ejaculated, she said that he could have ejaculated but she did not know. This point was not in her statement and given the fact that she responded in cross-examination that she did not know, it is not surprising nor of significance that it was not in her statement.

She did state that his hands were below her waist toward her vagina but details of that were not developed in great detail in court and that is not in her statement either.

[ 19 ] S.P. went on to describe how she left and went to her vehicle. Her leaving was quick and without any conversation that she recounted. The beer question was again raised and S.P. insisted she had only two beer. She was then examined regarding the text messages which she identified as Exhibit P-1.

They were referred to and identified by the accused as well and were admitted as part of the narrative without objection. [ 20 ] She proceeded with her narrative, stating that she called the police the following day at 2:38 p.m. and had three or four drinks earlier that day before giving the statement, but she was not impaired. This is consistent with the constable’s evidence. After giving the statement to police she went to the Uptown and got T.B., and with her friend N.M. they were driving T.B. home when she mistook the police vehicle for Mr. Mintuck’s vehicle and attempted to turn around.

She did not wish to encounter Mr. Mintuck. S.P. concluded by reiterating that she did nothing to suggest that she consented to what Mr. Mintuck did, or that she enjoyed it. She also stated that he had never been violent or forceful before. [ 21 ] Defence evidence then proceeded that consisted of Mr. Darryl Mintuck’s testimony. He confirmed his friendship with the complainant. He stated they were never alone together before except when smoking. He recalled October 17, 2020 and acknowledged that he had sent a text message to S.P. asking her to come over.

He looked at P-1 and identified it as containing messages between him and the complainant that day, as she had also done. No reference was made by either party to the parts of two screen captures that were blacked out. He described her arrival and sitting down on the couch. He described the complainant as wearing a bulky or baggy sweater and that she put two beers in front of her. He made a diagram of the living room of the house which became Exhibit D-1. He stated he had no drugs or alcohol that day and was dressed in a shirt and shorts. They made small talk.

He stated that she said she was stiff and uncomfortable. He offered a massage. She put a leg up on the couch, apparently turning her back toward him and he began the massage with her shoulders, arms and stomach. He stated that she was ‘laying back’, presumably toward him, and he proceeded to touch her breasts. He states that she ‘kind of laughed’, saying that she had no boobs when he got to her breasts. He stated that he rubbed her breasts on top of her clothing first, and then went to her stomach and waist and then toward her vaginal area. He states that she responded by ‘nestling and leaning back a bit’.

This suggests consent and active participation by the complainant. Then she ‘kind of shuddered’ and got up saying that she had to go to work. He denied that she ever said no, stop or anything negative. There was no ‘penetration’. Her demeanor was relaxed and he thought she may have had an orgasm when she shuddered. He said that he would have stopped if she had told him to do so or had removed his hand. [ 22 ] He said that as she was leaving he apologized because of her manner of doing so. No conversation at that point was recounted by either the complainant or the accused. It was not clear in Mr.

Mintuck’s evidence whether that apology was one given verbally as she left his house or if it is the one in the text screen capture #3 of P-1, or if the accused made an expression of apology twice. However, the words in the text constitute an apology and were prompted by the manner of S.P.’s leaving. I conclude that as clear from the text wording. [ 23 ] Mr. Mintuck stated in court that he thought he may have done something wrong from “the way she left” and he said in the text “I am sorry if I offended you I didn’t want to. i thought that’s what you wanted”.

His evidence was that her text reply saying that she had said no was not correct – she had not said no at any point. Nonetheless, S.P.’s message a short while after the incident in reply to Mr. Mintuck’s apology was clear saying “I never once said that’s what I wanted and said ‘no’ multiple times” with the added reproach that “I thought you were my friend”. [ 24 ] With respect to beer, Mr. Mintuck said that she may have offered him a beer, but she had her two beer and more from the beer fridge for a total of four. He did not indicate in direct evidence whether he had any beer.

He stated he thought they were adults who were consenting to what occurred. [ 25 ] In cross-examination Mr. Mintuck gave his height as six feet and his weight as 380 lbs. He is self-employed as a roof contractor. He acknowledged a criminal record that ended in 2008. He stated that he did not expect anything physical to occur that day with S.P. Crown counsel drew his attention to his statement where he had referred to coming over and having ‘fun’. Mr. Mintuck could not give any clear meaning to that reference and was unsure what he meant by ‘fun’.

In his statement to police, he had referred to S.P. only having two beer and he reluctantly accepted that would be so, and not the four that he had said earlier that she had. He also stated that he had offered the massage. [ 26 ] With respect to the massage, Mr. Mintuck said he began with her back and arms and then went to her stomach. He was not always clear in his answers, but he said that she grabbed his hand and said that she had no boobs. He admitted to going down under or into her pants to her vaginal area and rubbed between her legs, and that she had no objection to this.

He admitted that there was not any discussion of permission to do these things. His statement was extensive and he asserted in it and in evidence that she could have gotten up. He did not mention in his statement that she responded to his actions by touching his leg or engaging in any mutual actions, but he was adamant that she had never said no or to stop. He stated that his first inkling that she might be offended was when she got up and left. He did not state why he would think that and he did not describe her actions in more detail.

This evidence would suggest that her leaving was abrupt and without any verbal exchange, as already noted and ordinary experience and logic would suggest it was related to what had just occurred.

[27] The evidence of the complainant and the accused is directly opposed on the central issue of consent and therefore theprinciples enunciated in R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D)] are relevant in considering that evidence. Thoseprinciples have been discussed and applied extensively in criminal cases throughout Canada. The Supreme Court majority observed: Where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.

The trial judgeshould instruct the jury that: (1) if they believe the evidence of the accused, they must acquit; (2) if they do not believe the testimony ofthe accused but are left in reasonable doubt by it, they must acquit; (3) even if not left in doubt by the evidence of the accused, they stillmust ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of theevidence which they do accept. What is not proper, is that a court or jury weigh the evidence in a balancing process and choose what might be more appealing forvarious reasons.

All witness and other evidence must be considered specifically and reasons articulated to accept or reject it whether inwhole or in part. The onus of proof beyond reasonable doubt of the offence is paramount and if no such proof may be reached afterweighing evidence on every essential element of a charge, the charge must be dismissed on the basis of reasonable doubt. This is soeven if defence evidence is not accepted fully or even in part.

If the defence evidence on an essential element of the charge is capable ofbelief and not specifically rejected for reasons stated, it will raise a reasonable doubt and the charge must be dismissed. These remarksare not meant as any definitive analysis of the principles to be applied, but a practical statement of what must be proven in any criminalcase in Canada. Defence Position and Argument [28] The defence argument and position began with a review of the evidence. The parties knew each other and agreed to gettogether for some ‘fun’, a term used by both. There was some degree of alcohol use.

The complainant consented to being warmed up andgiven a massage which involved physical contact. The defence emphasized the accused’s evidence where it was stated that sheresponded to the massage in a manner that might suggest sexual arousal, although that was not specifically stated by the defence, butcounsel referred to the complainant responding to the accused’s touching by ‘gyrating’. The defence strongly asserted that thecomplainant consented and responded positively to the encounter but experienced ‘buyer’s remorse’ over the incident because it mightnegatively affect her marital relationship.

The defence cited the case of W.(D.) and suggested that the accused was entirely credible in hisnarration of events and further, that the evidence was evenly balanced with the two versions of the touching and consent to it. [29] A number of cases have been cited by the defence. The defence in final argument raised the question of mens rea and theconcept of mistaken but reasonable belief in consent.

The case of R v Knox-Moffatt, 2018 SKQB 142 [Knox-Moffat] was cited by thedefence with particular reference to paragraphs 5, 11, 20, 38, 39, 41, 43, 45, 47, 51, 54 – 65; which case resulted in an acquittal afterweighing all of the evidence. There was, as here, some disparity as to the size of the two persons involved, the meeting was agreed uponand took place at the accused’s residence and activity ceased with some abruptness.

The case cited made reference to the principles ofW.(D.) as well as the principles of mens rea, actus reus and consent that were each discussed at some length in the context of sexualassault. Defence argument included reference to a case that considered the difficulties of applying reasonable doubt with respect to theseissues. This was the leading case of R v Ewanchuk, (SCC), [1999] 1 SCR 330 [Ewanchuk] that was also cited by theCrown in their argument.

In Knox-Moffat the trial judge made the observations at paragraph 44 on the weighing of evidence and theconcept of reasonable doubt. [30] The judge in Knox-Moffatt also emphasized that the only evidence available was the evidence of the two parties to the event.He listed some evidence that existed but was not presented that might have assisted deliberations. In the present case, however, there isone significant item of evidence that is available in addition to the evidence of the parties – the text messages set out in P-1. Themessages that were sent after the meeting of the parties are relevant.

These text messages were commented upon by the defence inargument and it was suggested that the messages are equivocal and of no value to support the evidence of either participant in theencounter. [31] The case of R v C.J., 2020 SKQB 318 cited by the defence is another Saskatchewan case that analyzes the law of sexualassault, and makes limited reference to the concept of honest but mistaken belief in consent. That issue has been dealt with in the othercases cited as well and is essentially part of the question of mens rea.

As well, the defence argued the case of R v Panasiuk 2019 SKQB258, another Saskatchewan case that considers the issues in sexual assault in detail and concludes that W.(D.) would mandate an acquittalwhere there was only the evidence of the two parties, neither of which could be ruled as not credible. The defence makes significantreliance on this case and suggests the present case is a similar situation.

Crown Position and Argument [ 32 ] The Crown cited and relied extensively on the case of Ewanchuk which considered the issues of consent and mens rea in a sexual assault context. At paragraph 61 and following , the Supreme Court summarized what must be present for consent and what will vitiate consent. The other cases cited by the Crown focused on the issue of consent as well and illustrated situations where consent was alleged but rejected by courts.

In R v D.S ., 2018 SKQB 170 at paragraphs 22 and following the Court analyzed Ewanchuk , discussed the evidence relating to consent and concluded positively that there was not consent in that case’s particular situation and the question of honest but mistaken belief in consent which goes to criminal intent was not engaged. In such a situation W.(D.) is not applicable either except insofar as it sets out the standard of proof and weighing that occurs in any case. It is necessary for the Court to assess the evidence of the complainant and the accused for credibility and make determinations in that regard.

Discussion, Evidentiary and Case Conclusions [ 33 ] In the evidence of the complainant, it was apparent that in her initial direct evidence many details were missing but she readily added more detail on further examination and still more in cross-examination. She presented herself as a woman of some maturity, having experience with bar patrons and having considerable confidence. She had a well-established marriage and worked in bars where she came in contact with many people and made friendships that included male customers.

She was not evasive or unsure in her answers regarding relationships at work and friendship with persons met there. She stated that was not a problem for her husband. She had met the accused there and they had become friends. That included socializing at his house and at her house, with her husband and the accused’s partner present on occasion. She was direct and clear talking about these friendships, what she told her husband and her understanding of what would or would not be a source of conflict in their relationship which was of long standing.

Her manner and description of her marriage did not suggest a person subject to anxieties or insecurity over that relationship. She stated she had worked in bars where she might have to manage difficult situations and her positions also involved more responsibilities than just serving customers though that was not detailed. She was a convincing witness for the reasons stated. [ 34 ] The term going over to have ‘fun’ is ambiguous and cannot be considered to have sexual connotations and that was not asserted by the defence.

The complainant was again clear and direct in describing going over to the accused’s house, being casually dressed and eventually accepting a massage. This progressed to unwanted touching which she stated she promptly stopped by pulling away, saying no multiple times and then getting to her feet. She then left abruptly without conversation. The accused’s evidence is similar up to the point that he progressed from massage to sexual touching which then differs substantially from the complainant’s evidence.

The accused’s evidence that she left abruptly is, however, consistent with her evidence. [ 35 ] The accused’s apology and comments in the final messages in P-1, in my opinion, is consistent with her having taken strong offence to his actions and the circumstances of her leaving confirms that, in my opinion. The manner of leaving is not disputed by the accused. [ 36 ] In his evidence, the accused was forced to retract his assertion that the complainant had four beers which would have been a fact to permit the suggestion of possible effect on judgment and consent.

He described the acts of touching that progressed and he asserted that she was, in effect, enjoying it and that he took that to mean she was consenting as the physical touching became sexual and developed to more than a massage. There was no specific verbal discussion of sexual conduct, only the development of his touching which he described, along with her reactions of leaning into him, guiding his hand at one point and responding positively to the sexual touching. He considered that it was sexual activity between consenting adults.

He admitted to being surprised by her manner of leaving which is evidenced by the wording of his text messages. [ 37 ] The main point of difference between the evidence of the two parties is the question of consent. Consent was taken by the accused to exist by the reactions of the complainant which he described in evidence. The defence argument goes on to assert that there was active consent, but that the complainant has regretted what had indeed occurred with consent and in a fit of ‘buyers remorse’, to again use the defence phrase, has brought this complaint to protect her relationship with her husband.

The case turns on this point of consent and the defence theory of motivation of the complainant to make a criminal complaint. On this essential point for the defence, I do not accept Mr. Mintuck’s evidence. The accused gave his evidence clearly and calmly in court, but I do not find the accused credible on the central question of consent to sexual touching. My reasons for this conclusion follow. [ 38 ] First, S.P. does not impress the Court as a person who would be greatly concerned with her husband’s possible reaction to the massage situation such that it caused her to proceed with a false complaint and perjury.

Her self-confidence was apparent in court and I accept that it was sufficient for her to go into this situation, but halt it when it became objectionable. She knew her personal bounds and the bounds of her marital relationship.

[ 39 ] Second, the complainant is much smaller and lighter than the accused, she was sitting with her back to him with one leg up on the coach (this from Mr. Mintuck’s evidence) and his hands were on her. It is not at all incredible that it would take her some moments to get up off the couch. I accept that she said no a number of times as this touching continued and she took some seconds to pull away and get up during which time he continued his actions. The total time, in my opinion, would have been brief but it is not set out specifically in evidence except by reference to the description of what happened.

It was sufficient, however, for the accused to make unwanted intrusions in spite of her lack of consent. That lack of consent was expressed verbally and by S.P.’s actions in leaving. [ 40 ] Third, considering the last point above, the complainant got up and left immediately without conversation which is confirmed by the evidence of Mr. Mintuck and his text messages – his messages suggest that he realized something had gone wrong and her manner of leaving was sufficient to cause the accused to be concerned about offending her and send text messages to that effect. Mr.

Mintuck, in my opinion, knew immediately that he had proceeded to sexual touching that was rejected. He made an unwarranted assumption and he has since that incident sought to justify his actions by asserting S.P.’s consent. I accept S.P.’s testimony that there was no consent and she stopped the activity quickly and left as fast as she was able to do. This manner of leaving does not support Mr. Mintuck’s version of the sexual touching occurring with consent and enjoyment of it by S.P. The messages add weight to S.P.’s evidence and are inconsistent with Mr. Mintuck’s version, in my opinion.

She immediately refuted his contention that what occurred was what she wanted and her statement “I thought you were my friend” implies some hurt or upset that his actions produced. None of this is consistent with consent: indeed, it suggests the opposite. [ 41 ] For these reasons I reject Mr. Mintuck’s evidence regarding consent by the complainant to the sexual touching that he admits took place. I find that he proceeded from one activity that was discussed and was clearly consented to, the massage, to another activity that was entirely different in nature. I do not find that there is any basis on which Mr.

Mintuck could have an honest but mistaken belief in consent. The case law does not support such a finding in these circumstances. [ 42 ] Given the findings I have made, I find the accused guilty of the offence charged. Dated at the Town of Moosomin, the Province of Saskatchewan, this 19 th day of October, 2021. ______________________ Henning, J R. v. Darryl Mintuck – Appendix to Judgment – Exhibit P – 1 Messages reproduced in text form from the exhibit noted above.

(1) Have a late night girl No i was home by 10:30 Oh nice what you up to this morning Just got out of bed and heading to Wawota shortly to do a few things You should come this way and do something here I would but my mailbox and kid I have to pick up from a sleep over are in Wawota. Maybe tomorrow

(2) I would but my mailbox and kid I have to pick up from a sleep over are in Wawota. Maybe tomorrow or Monday on my day off since I have nothing to do then Don’t think they are going anywhere come by ok I’ll come over once I get back from Wawota On my way See you soon

(3) See you soon I am sorry if I offended you I didn’t want to i thought that’s what you wanted I never once said that’s what I wanted and said “no” multiple times. I thought you were my friend. (message blacked out…) (4) you I didn’t want to i thought that’s what you wanted I never once said that’s what I wanted and said “no” multiple times. I thought you were my friend. (message blacked out…) I will not bother anymore sorry for what I did