R v Mackenzie, 2023 ABKB 670

Court of King’s Bench of Alberta Citation: R v Mackenzie, 2023 ABKB 670 Date: 20231127 Docket: 191100742Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - James Michael Mackenzie Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I.

Introduction [ 1 ] Did the Accused sexually assault the Complainant in the garage where they had spent an afternoon together in May 2019, and again, shortly afterwards in the Accused’s bedroom? [ 2 ] Per the Complainant, he touched her vagina in the garage without her consent and had non-consensual penile-vaginal intercourse with her in the bedroom.

[ 3 ] Per the Accused, no touching of any kind happened in the garage, and the acknowledged-by-him intercourse was consensual. [ 4 ] I find that the Crown did not prove beyond a reasonable doubt any sexual touching in the first stage or, to the same level of proof, the absence of consent in the second stage. [ 5 ] Accordingly, I acquit the Accused of sexual assault. II.

Evidence Overview [ 6 ] The parties, in a relationship at the time, gave largely congruent accounts of their initial time together on the afternoon in question, starting with the Accused picking up the Complainant at her home, then driving (whether directly or with one or two detours (pub lunch and/or job interview for her)) to his home, and them then “hanging out” in the garage, him working on one of his motorcycles and her sitting in an armchair, in the garage, looking at her phone, interspersed with some indeterminate conversation. [ 7 ] Their accounts differ widely following the Accused ceasing his maintenance work. [ 8 ] Per her, he walked over to her and, without asking if she consented to any sexual touching, he reached one of his hands through the leg opening of her shorts and, after initially moving it on or around her hip, moved it to her vagina, touching or rubbing it for “some minutes” or (on cross) “one minute.” As he did this, he asked her if she wanted to have “sex upstairs, before the [Accused’s] landlord came home.” She declined, saying “no”, following which the Accused “picked her up” and carried her from the garage sitting area to a set of stairs (“two or three”) leading from the garage up into the house, up those stairs, into the house, and up a staircase to the second floor of the house, to the door of his bedroom.

She did not recall exactly how she got from the doorway to the bed, but she testified to “being kind of pushed” and ending up on his bed, on her back, with her legs hanging off, followed by the Accused getting on top of her, having “missionary-style” penile-vaginal intercourse with her for a few minutes, followed by him ejaculating into her, him getting off her, him locating and tossing her a towel (“presumably for me to clean myself up”), and him saying to her “I guess that ‘no’ means a ‘yes’ then.” She said that both while still in the garage (sitting in the armchair) and in the bedroom, she told the Accused multiple times (at least five, but probably not more than ten) that she did not consent to sexual contact with him i.e., either in the garage or in the bedroom. [ 9 ] Per the Accused, he did not sexually or otherwise touch the Complainant in the garage.

To his “do you want to have sex?” proposal, she responded “yes.” He may have then asked “now, or later?” In any case, more or less immediately, they then both walked, each under their own power, from the garage up into the house, up the stairs and into his bedroom.

They both (partially) undressed (at minimum, her taking off her shorts (no underwear worn), and him taking off his pants and any underwear), she got on the bed first (on her back), he joined her on the bed, getting on top of her, she said to him “do not come [or ejaculate] in me”, to which he replied either “okay” or “I won’t.” She spread her legs, he entered her (penis-vagina), they had “missionary-style” sexual intercourse for “a few minutes”, concluding with him withdrawing from her and him ejaculating onto the bedsheets. [ 10 ] Their versions of the succeeding events also varied widely. [ 11 ] Per the Complainant, they returned to the garage and starting drinking, with the owner of the house (landlord) eventually joining them and the Accused leaving once (or perhaps twice) to get more alcohol (him driving his pick-up truck on the first trip i.e. if there were two).

The Complainant and the landlord then became peeved at the Accused for returning from the (or the second, if two occurred) trip with more alcohol for himself and none for them. She (the Complainant) reached a level of “6, maybe 7” on the ten-point sobriety scale (10 meaning “fall-down black-out drunk”).

The Accused (also “drunk” per her) decided to go out riding on his motorcycle, with her being concerned he was going to hurt himself, her announcing that she was going to phone the police, him leaving on his motorcycle, her phoning the police to report a drunk driver (i.e., the Accused), and, following him returning shortly afterwards, them getting into a massive argument. The police arrived shortly afterwards and each of them ended up speaking with a different officer.

She was then driven home by one of the officers, followed by her then attending at the Grey Nuns Hospital (emergency), her reporting a sexual assault by the Accused, a Sexual Assault Response Team (SART) nurse being summoned and examining her, her giving a recorded statement describing to an RCMP officer dispatched from Leduc, and her later being discharged from hospital. [ 12 ] Per the Accused, the Complainant proceeded to get severely drunk later that day (“9 out of 10”), as well as get increasingly angry with him (“no apparent reason”), all culminating her announcing in the garage that she was going to run upstairs to jump off the (second floor) balcony and kill herself.

She then ran from the garage into the house, up the stairs, onto the balcony, and starting to move one leg over the balcony before he (following after her) intercepted her attempted over-rail movement by grabbing her around the waist, pulling her away from the railing, and getting into a deadlock or stalemate with her on the balcony for “half an hour”, before he was finally able to move her back into the house and close the balcony doors, at which time she calmed down. [ 13 ] Further per him, at a later point, he left the house to go to his truck (parked on the driveway) to get cigarettes.

Upon his return, he found the garage-house door locked, he banged on the door (“let me in”) for 20 minutes before he started up and rode away on one of his motorcycles (“heading to a friend’s to stay there”). He also reported that, as he left, he heard the Complainant say that she was going to call the police to report him out driving (unlicensed at the time and, per her, drunk). After riding for two or three minutes, he reconsidered his trip and returned home (total trip time “five minutes”).

He parked his motorcycle, only to find the garage-house door still locked, leading to “20 minutes” of further knocking before the Complainant allowed him to enter. (That was his direct-evidence account of the return from that trip; in cross-examination, he said that after returning from his quick-turn-around ride, he walked from the garage back into the house i.e., door not locked.) [ 14 ] Per him, the police arrived shortly after his return (not sure who opened the door to let them in), with him and the Complainant each ending up talking to different officers and eventually, one officer later driving away with the Complainant (apparently, in response to the Accused’s request that they “get her out of here”) and the other officer leaving him alone in the house, bidding him to “have a good night.” (The Accused acknowledged telling that officer, in response to “were you out riding just now?” questions, that he had not been i.e., he acknowledging lying to the police about having been motorcycling without a valid license.)

[15] The SART nurse testified about her interactions and examination of the Complainant at the hospital (more details below). [16] The RCMP officer from Leduc who interviewed the Complainant at the hospital also testified. [17] The Accused was charged with sexual assault a few months later in respect of the asserted in-garage sexual contact and the in-bedroom sexual intercourse. [18] I heard the trial in Wetaskiwin on November 14-16, 2023, reserving my judgment at the conclusion of the trial. [19] I delivered an oral synopsis of these reasons in Wetaskiwin (via Webex from Edmonton) on November 27, 2023.

Thesewritten reasons are the official judgment in this case. III. Legal principles [20] I adopt Mandziuk J.’s helpful overview of the criminal burden, standard of proof and credibility assessments in R v SGH,2023 ABKB 39: A. Burden and Standard of Proof SGH is presumed to be innocent. The presumption of innocence is connected to the requirement for proof of guilt beyond a reasonabledoubt, a fundamental principle of our criminal justice system. The Crown has the burden of proving each element of an offense. That burden of proof rests on the Crown throughout the trial.

Thebenefit of any doubt must be extended to the accused R v Lifchus, [1997] 2 SCR 320 (Lifchus) at para 36. Proof beyond a reasonable doubt is not proof to an absolute certainty, but it is proof to a high level of certainty. It is beyond proof ofprobable or likely guilt: R v Starr, 2000 SCC 40 at para 242; Lifchus at para 32. Reasonable doubt can arise from the evidence or from the absence of evidence. It is grounded in reason and common sense, anddetermined without any basis in sympathy, prejudice, emotion, sentiment, leaps of logic, flights of imagination, or frivolousconsiderations: Lifchus at para 36.

SGH gave evidence at trial. Therefore, I must consider the Supreme Court of Canada’s direction in R v W(D), (SCC),[1991] 1 SCR 742 (W(D)) as interpreted by the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36 (Ryon) and R v Achuil, 2019ABCA 299, leave to appeal dismissed (SCC). These principles were helpfully summarized by Renke J in R v Hermkens, 2021 ABQB 1016 at para 12, as follows: i.

The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonabledoubt and that burden remains on the Crown so that the accused person is never required to prove his innocence, or disprove any of theevidence led by the Crown …. ii. In that context, if the accused’s evidence denying complicity or guilt (or any otherexculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true,then the jury is required to acquit .... iii.

While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocenceof the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after carefulconsideration of all the evidence, the jury is unable to decide whom to believe, they must acquit. iv. Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence),they may not simply assume the Crown’s version of events must be true.

Rather, they must carefully assess the evidence they do believeand decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’sevidence (or ... other exculpatory evidence) cannot be taken as proof of the accused’s guilt. Additionally, the Court in Ryon at para 47, held that whether evidence exculpating an accused raises a reasonable doubt must be assessedin the context of the evidence as a whole.

I will now turn to discuss the general principles of credibility assessment, myths and stereotypes and the particular considerations arisingfrom the evidence of children. B. Credibility Assessment Generally Witness credibility and reliability are the overarching issues and challenges in this case. Credibility assessment is about witness’ honestyand truthfulness. Reliability is about the accuracy of the witness’ evidence. A number of factors require careful consideration when assessing the credibility of a witness. The uniqueness of each witness and thefacts of each case must be weighed and evaluated carefully.

As Cory J observed in R v S (RD), (SCC), [1997] 3 SCR 484 (S (RD)) at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science.” The task of assessing credibility

can be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. In making credibility findings, the evidence must be considered in its entirety. Each part of the evidence is part of the whole, and thoseparts interact and inter-relate. Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC),[1947] SCR 268 at 271; Ewanchuk at paras 29 – 30.

The factors that can be considered in assessing credibility and include the witness’s character, emotions and feelings, self-interest,hostility, attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior. Additionally, evidence ofbias or dishonesty and material facts that are proven through the testimony of other witnesses can weigh into the analysis: R v Tash,2013 ONCA 380 at paras 40 – 43. Inconsistencies in the particulars and the whole of the evidence are certainly an importantconsideration.

No single factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. Additionally, the trier of fact’s life experience and common sense can weigh into the process, which necessarily involves the trier offact’s view of the evidence in all its diversity as it emerges during the trial, in tandem with their experience, logic, and intuition: R vMarquard, (SCC), [1993] 4 SCR 223 at para 49; S(RD) at para 129. IV. Credibility assessments A. Credibility of the Accused 1.

Straightforward manner [21] The Accused testified in a straightforward way, largely limiting his answers to the questions asked i.e., not using the questionsas platforms to launch discussions of tangential or unrelated points. 2. Acknowledged inability to recall everything [22] He acknowledged being unable to recall some things, sometimes noting the passage of 4.5 years since the (May 2019) eventsin question.

For example, in response to a question about who made a certain post-sexual-contact remark mentioned by him, he said,“probably both of us … not sure exactly … it has been a long time” and (shortly afterwards, on the same subject) “Not sure if she saidanything. She probably would have said the same thing … I can’t be certain.” Another example (re: the Complainant’s level ofundress): “I do not recall if fully naked, but her bottoms were off for sure.” 3.

Memory not clouded by intoxication [23] The Accused reported having only one or two drinks, reaching at most a “2” on the ten-point sobriety scale (zero beingentirely sober), throughout their time together on May 29 and 30, 2019.

While the Complainant asserted that she was “drunk” and “half-cut” at some stage of their time together that day (after the reported-by-her sexual touching in the garage and the bedroom sexualencounter), she did not offer an estimate of the number of drinks he had or report any intoxication-reflecting behaviour by him (asdiscussed further below). [24] Here, I also refer to his (ultimately) rational thinking after he rode away from the house on a motorcycle (as discussed furtherbelow), intending to ride to a friend’s place i.e., him reconsidering the wisdom of riding without a license, especially in light of theComplainant advising him, as he was leaving, that she was calling the police.

That is, in making the rational decision to reverse tracksafter two or so minutes to return home i.e., to get off the road. [25] The Crown argued that the Accused was materially off-target in his estimate of the Complainant’s sobriety, casting a shadowon his credibility. [26] Neither party asserted that the other was materially intoxicated during the reported-by-Complainant sexual touching in thegarage or the bedroom sexual contact. [27] The debate about whether the Complainant reached a “9” on the drunkenness scale (as asserted by the Accused – (effectively)“she was completely out of it” or only a “6, maybe a 7” (per the Complainant) was strictly about the Complainant’s alcohol consumption,and her resulting condition, in the hours after those events (actual or asserted).

Accordingly, I do not see the difference here asdiminishing either party’s recollection of the earlier (central) events. [28] As for general credibility concerns on this aspect, the Crown emphasized that neither the attending SART nurse or hospital-visiting police officer noted any intoxication in their reports of dealing with the Complainant i.e., the Accused was lying, exaggerating,or reckless in his “9” estimate of the Complainant’s condition in the evening of the day in question. [29] But it is difficult to square those reports with that of a psychiatrist who saw the Complainant (after the nurse and policecontacts) who reported perceiving intoxication, requesting a blood-alcohol test of the Complainant, receiving a 0.37 outcome, anddeferring his examination of the Complainant until she had sobered up. [30] It may be that, given the Complainant’s attribution of her panicked, troubled “blacked-out state” to a panic attack at or aroundthe time of her hospital arrival, the first two interviewers (nurse and police officer) focused on that as the apparent, and exclusive, reasonfor her sub-par state.

Or that, by the time of her hospital arrival (some hours after leaving the Accused’s residence), the Complainanthad recovered somewhat from the state of extreme drunkenness reported by the Accused. [31] The trial did not feature any expert evidence concerning blood-alcohol tests, alcohol absorption, or anything akin.

[ 32 ] While this aspect of the case remains somewhat uncertain, I do not find any obvious or necessary blemish on the Accused’s credibility associated with his “9” estimate of the Complainant’s drunkenness i.e., with a blood-alcohol figure of .37 for her reflecting the result of a test taken many hours after she left his residence. 4. Acknowledged driving misconduct and lying to police about it [ 33 ] As noted, he acknowledged the referenced motorcycle trip and also acknowledged having lied about it when asked about it later by an RCMP member (as discussed further below). 5.

Testimony logical [ 34 ] The Accused’s testimony was, by and large, logical. For instance, his explanation of why he ran after the Complainant when she ran from the garage saying she was going to jump off the second-floor balcony: “We were in a relationship; I [wasn’t going to] let her jump off” (as discussed further below). And his rationale for telling the Complainant that she had to leave at the end of the evening i.e., his concern that her “freaking out” would jeopardize his tenancy with the landlord.

And his explanations for the two times he exited the house that evening (first, to retrieve cigarettes) and, second (until he reconsidered the trip), to travel to a friend’s place to spend the night after (per him) the Complainant locked him out.

And his “barely knowing” his landlord, with him working out of town for long stretches of time and the landlord not always overnighting at the house. [ 35 ] As well, his account of no one else being at the house during the events in question (i.e., until the police arrived at the end) was congruent with his account (for instance, with no one else being on hand to assist when the Complainant was attempting to jump off the balcony) and was not contradicted by any material evidence, with the Crown not tendering the landlord (present for part of the events, per the Complainant) to testify to her (possible) presence. [ 36 ] And his ready explanation for how the Complainant had replenished her wineglass without leaving the garage during their long time together in the garage after the sexual contact i.e., he had a fridge in the garage in which the Complainant kept or at least found wine. 6.

Testimony fair [ 37 ] The Accused did not take every opportunity to criticize, question or otherwise challenge the Complainant’s conduct.

When asked if he saw her consume any alcohol that day before arriving at the house or if he saw any signs of intoxication in her in that period, he responded “no” and “no.” 7. “Door locked / door open” inconsistency immaterial [ 38 ] In seeking to impugn his credibility, the Crown stressed a change in one of his responses between direct and cross- examination i.e., him first reporting that after he returned from his brief motorcycle excursion, he found the door between the garage and the house still locked (as discussed above) and had to bang on it for 20 minutes before the Complainant opened the door, versus his cross-examination evidence that the door was open upon his return.

I do not see this difference as a material blemish on his credibility, especially in light of his “20 minutes banging” evidence about first encountering the locked door (return from trip to truck for cigarettes) i.e., it appears he was mixing up the initial encounter with the locked door (cigarette-trip return) with his second (motorcycle-trip) return to the house.

In any case, nothing material turned on this difference e.g., nothing material was reported as happening during the second (reported) “door-banging segment.” 8. “Rescue account” not implausible [ 39 ] The Crown also emphasized what it perceived as the Accused’s implausible evidence about the Complainant bolting out of the garage, up to the second floor of the house, to try to throw herself off the balcony.

The thrust of the Crown’s submissions here was the implausibility of the highly intoxicated (per the Accused, “9 out of 10 drunk”) Complainant making her way across the garage, up a few stairs to the main level of the house, and up the stairs to the second floor, opening the balcony doors (inwards), crossing the balcony, and starting to straddle the balcony railing (with one leg), making all that progress before the Accused (sober, per him), sparked into action within “a second or so” (i.e., on the Complainant yelling, as she ran past him in the garage, that she was going to kill herself), “rushing” after her, and not seeing her in the house on his pursuit (even in the stairwell), caught up to her. [ 40 ] The Crown’s point here was that if the Accused’s initial evidence of the Complainant bolting and yelling was true, he obviously or necessarily would have intercepted her either in the garage, on the entry way into the house, on the stairs up to the second floor, or at least while she was still in the house i.e., he would not have been so slow that he only caught her at the last (“one leg over”) moment. [ 41 ] I disagree on the implausibility of the Accused’s account of this reported episode.

The Accused was not asked about actual or perceived impairment of the Accused’s mobility during this phase of their time together. Plus, given the 4.5-year gap since the events in question, he might understandably not have recalled his precise reaction time. (Was it just “a second or so”? Could it have been longer?

At least long enough for the Complainant to get far enough ahead of him that he only caught her on the balcony?) Plus, he was not asked if he had to open the door leading from the garage into the house (i.e., whether that door had closed after the Complainant had entered the house), which would have cost him some (even brief) time on his way upstairs. [ 42 ] In any case, the best measure of his reported rescue efforts is whether he in fact rescued her i.e., prevented her from jumping off the balcony.

And, per his report, he accomplished that i.e., even if he might have been able to intercept her earlier i.e., if he had reacted more quickly or had moved more quickly into the house and up the stairs.

9. “30-minute struggle” testimony not implausible [ 43 ] The Crown also pointed to the Accused’s account of a “30-minute struggle” on the balcony, suggesting it was implausible on its face and, moreover, would have produced noticeable injuries (bruising, etc.) if true (with no such injuries noted in her hospital assessment the next day). [ 44 ] Here too, I disagree. As discussed further below, the evidence showed the Complainant weighed approximately 171 pounds on the day in question and the Accused between 125 and 130 pounds.

It is not inherently implausible that they would enter a stalemate of sorts i.e., once the Accused intercepted the Complainant and restrained her around the waist i.e., that they had a long period of her attempting to move towards the balcony railing and him attempting to move her back into the house. Or that no particular or at least observable injuries would result from such a stalemate.

Or, after the reported duration of this stalemate, that the Complainant eventually stopped resisting the Accused’s efforts and walked back into the house i.e., that she calmed down at some point. [ 45 ] As discussed further below on this aspect, the Complainant’s reported-during-medical-examination tenderness on various parts of her body (which she could not explain) most likely came from the balcony struggle reported by the Accused i.e., the soreness reported by her corroborates his account of the balcony events. 10.

Suicide-attempt account not implausible [ 46 ] The Complainant denied running or otherwise moving to the second-floor balcony and attempting to climb over the railing. [ 47 ] The Accused’s account on this aspect is outlined above. [ 48 ] I find that his account is corroborated to some degree by information reported by medical professionals during or following their interactions with the Complainant at the Grey Nuns Hospital on May 30, 2019, i.e., the day after the central events in this case. [ 49 ] Here, I point to the medical evidence (Exhibit 1) bearing on the Complainant’s physical and mental health at the time.

Per one of the emergency records from the following day (May 30, 2019) at the Grey Nuns (under “Presenting complaints / remarks”): “Depression / suicidal / deliberate self-harm”, with hand-written entries (under “History, finding, treatment”) including “depression and suicidal ideas.” [ 50 ] The medical evidence also included “history and physical” entries from the same (May 30, 2019) day, including “She reports ongoing passive suicidal ideation, and over the last 24 hours , she has begun to formulate active plans including overdosing on medication and jumping off a bridge. … She … states she has taken some preparatory steps towards ending her life such as writing a suicide note.” [ 51 ] The noted 24-hour period included the contested events at issue in this trial. 11.

Quick exit from Leduc not implausible [ 52 ] The Crown also questioned the Accused’s evidence that he left Leduc later on May 30, 2019, leaving some of his possessions behind and not seeing his landlord and never returning. [ 53 ] In my view, the Accused adequately explained why he left hurriedly (relocating with his major assets to be closer to the town where he works and also to be away from “that life”, which I infer meant (in part) the chaotic events of the days in question). Also, his leaving without seeing his landlord was in keeping with him being away for long stretches at a time.

And, per him, he arranged for a friend to retrieve his left-behind belongings. 12. “Pattern of recollections” not a credibility flag [ 54 ] The Crown argued that the Accused provided essentially vague or incomplete testimony about events before and after the central events (end of time in garage (with asserted-by-Complainant sexual touching), trip upstairs, and bedroom sexual contact), with markedly clearer and more complete evidence about those central events. Per the Crown, this pattern represented the Accused essentially concocting the more detailed testimony. [ 55 ] I disagree.

Given the time lapse here (4.5 years since the alleged events), I see this pattern (if it is one) as reflecting the Accused genuinely having more detailed recollections of the central events i.e. going to the heart of the allegations against him, with any uncertainty or incompleteness in the surrounding details (first part of the day together, rest of the day together) being more likely to fade from memory or to become less distinct memories. 13. “Would have” manner of speech [ 56 ] Another credibility concern urged by the Crown was anchored on the Accused’s repeated references to things that “would have” occurred, in contrast to other things he described more directly i.e., as simply occurring.

Per the Crown, the former mode of speech reflected the Accused describing things that did not actually happen. [ 57 ] The Accused indeed answered several questions using a “would have” format e.g.: Q: How did you come to meet up with [the complainant] on the [day in question]? A: I would have picked [the complainant] up at her mom’s house. Q: Approximately what time was [the pick-up]?

A: Oh … would have been later in the today … not sure [of] the exact time. Q: [Later] What did you do? A: I would have taken my pants off and probably left my shirt on. Q: Were you wearing underwear at the time? A: I would have removed them with my pants. Q: [Later] Next? A: I woulda got on [the] bed on top [of her] and proceeded to have sex. Q: [Later] What did she say … as you got on top of her? A: To my knowledge, she would have said “don’t come in me.” Q: [Later] Next?

A: We would have finished …. [ 58 ] The Accused also used this mode of speaking when testifying about a conversation in which (per him) he proposed the sexual activity with the Complainant and in which she agreed: Q: What happened next in the day? A: At that point, we woulda … I know we probably started talking and then we woulda had a discussion ‘cuz usually then it was like ‘do you want to go have sex upstairs, before the roommate got home?” And that is when she walked up, I walked up behind ‘cuz I opened the door for her, she walked into the house and up the stairs …. Q: I’ll just back you up there.

You said there was a discussion. Is that correct? A: Yes. Q: And I think you said that you voiced … what don’t you tell the Court what you voiced to [the complainant] during that discussion in the garage.

A: Probably a discussion about how the evening was going to go and then the sex topic would have come up because sex was .. was always, like ‘hey, do you want to have sex right now.” [Crown objection based on s. 276 CCC , with no defence application to permit reference to any prior sexual activity between the parties, upheld by me.] Q: So I would ask you, Sir, not to offer information [concerning] the sexual relationship between you and [the complainant] other than the night this event. Is that fair? A: Yes. Q: Okay thank you. Just going back to this, you said there was a discussion about sex. A: Yeah.

Q: Can you just describe for us what you said to [the complainant] in that regard? A: I don’t know exactly what woulda been said, but I would say, from like past, like, I don’t know how to explain that really, like, usually I’d say “hey, do you want to have sex?” … don’t know how to explain it. Crown objection (again based on s. 276, upheld by me.) Q: Mr. Mackenzie, if you’re not particularly sure about something that happened, we would just ask that you don’t rely on previous memories and, if you don’t remember, you can just say “I don’t remember.” A: Okay.

Q: And I can ask you to kind of summarize what you think the discussion … how the discussion went. A: Okay. Q: So, can you summarize for us how the discussion went concerning sex that night with [the complainant] A: I would have said “let’s go upstairs [to] have sex before the roommate got home.” [In response to a question from me that “In other words, even if you can’t today recall your precise words, you’re saying the gist of what you said to her was what you just told us?]

A: The gist, yes, exactly. Q: And after saying that to [the complainant], posing that proposition to her, what was her response? A: Okay, let’s go. [ 59 ] In cross-examination, the Crown returned to this reported conversation: Q: Who initiated the conversation about sex? A: I did. Q: You did or you would have initiated? A: Could be either. I … it’s been a long time .. sometimes it was me .. her .. I can’t really pinpoint. Q: Fair enough. How long was the conversation … A: Not long. Q: … about this element, about having sex?

A: Wouldn’t’ve been long, would have been “do you wanna have sex?” She said “yes.” That was it. Q: So essentially a phrase from you and a single-syllable response from her. A: Yes. Q: Do you remember the exact wording? A: No. Q: Do you remember … so you don’t remember the exact wording of the whole conversation of this … A: No, I don’t remember the … I just … I asked “do you want to have sex?” She said “yes.” End of conversation. Q: But you do remember the “yes” part. A: Yes. Q: But you do not remember the question you asked in particular, the wording of the question you asked.

A: No but I asked “do you want to have sex?”, that’s … wouldn’t’ve have been much more, you wanna … probably woulda been maybe “later? Now?” Q: Can you repeat your answer? A: Like it woulda been like .. if anything after the “do you want to have sex”, it could have been “now? Later? What do you want?”, right? Q: Can you explain … there was more of [this] exchange? A: Well, no, that … I don’t know if there was more .. I am just saying. Q: I apologize .. you would have .. “later …”, can you repeat that phrase .. it would have been later or after?

A: I am not sure … [Discussion between me and counsel about clarifying the “now? Later?” dialogue above] Q: Can you clarify that i.e. “now? Later?” A: That’s just something we would talk about over the course of the entire relationship. That’s how it went. … [dialogue between me and counsel about further questioning on the “now? Later?” aspect] Q: Essentially you said something to the effect ‘do you want to have sex? A; Yes. Q: And she did respond “yes”? A: Yes. Q: After that, there might – might – it’s a possibility- have been an exchange of words about “now or later.” Is that correct.” A: Yes.

Q: This exchange – if it happened -- is possible -- was about whether to have sex now or later, meaning at that moment or a later moment. A: Yes. Q: Was there a response to that that you recall? A: I don’t recall. It would have been obviously yes ‘cuz we went upstairs but I can’t recall the entire conversation. Q: The question was “do you recall?”, but you said “it obviously would have been a “yes.” Is that what I heard? A: Yes. Q: “Because she went upstairs” … something that you said?

A: Yep. [and later in cross-examination] Q: In your testimony describing the conversation [in the garage] about having sex, you provided the gist of the conversation. We were discussing the exact wording. Do you remember you mentioned something along the lines of “let’s go have sex in the bedroom before the landlady or landlord or roommate gets home.” Is that [your testimony?] A: Yes. Q: So you remember saying that [i.e.] mentioning this part about before the landlady comes back. A: Yes. Q: And that was the question answered “yes” by [the complainant] that you positively remember? A: Yes.

Q: So the question was not just “do you want to have sex in the bedroom?” but “do you want to have sex in the bedroom before the landlady gets home?” A: Yep. Q: Were you expecting her to come back? A: The landlady? Q: Yes. A: Sometimes yes. It was .. she .. somedays she would show up [then wouldn’t]. She had a boyfriend at the time so he .. I .. just didn’t know. Typically it was in the evening she would come, so you just wanted to do whatever, you know, before she gets back. Q: So you think you [answered] that based on the … A: Based on the typical days. Q: Typical days … previous experience? A: Yes.

Q: Would it be fair to say that some of your testimony today is also based on typical experiences rather than on hard memories of that day? A: No.

Q: So this is the only one .. the only [piece] of evidence that you [based on previous experiences]? [Defence objection – overly broad and sweeping question, which I upheld – Crown permitted to ask this question about individual elements of the accused’s testimony, but not effectively require him to recall his entire testimony and run it through this filter.] [ 60 ] In cross-examination, the Crown asked the Accused more about this “would have” manner of speaking, contrasting those (and possibly other) examples to him using a different (and more direct) manner e.g., “[This] happened next …” or “She did [this] next ….” [ 61 ] Here is part of their exchange on this subject: Q: [With the “would have” construction”] you were speaking conditionally, meaning [you were] not sure?

A: Yeah … I am not sure exactly the words used. Q: [With] “would have … taken down my pants”, [you] are not sure about the actions you …

A: I know I took my pants off. Q: But your testimony [was] “… would have taken my pants down.” Correct? A: Yes. Q: Is it fair to say that when you are using [a] conditional sentence or conditional tense – “I would have” versus “I took my pants down”, for example – that means you are not sure whether you did it? “I would have taken down ….” A: I understand what you’re saying that … Q: Is it fair to say that, when you use that language, you are not sure? A: I do not really understand. My wording is … I cannot express myself … the greatest … you know? Q: Fair.

A: I don’t … Q: That is why I am asking to explore your manner of talking. [Is it] fair to say that when [you say] “I would have taken down my pants” as opposed to “I took them down”, that shows you are not sure in the first case – what exactly you [did] that day, versus … a guess? A: I understand what you’re trying to get at. I worded it typically. That is how I speak. Just how I express myself … just an eastern [Canadian] thing. Q: That means “I took my pants off” is what [you] mean when [you] say “[I] would have taken [my] pants down? A: [It’s] just how I talk.

Q: [Crown gave an example of the accused using a different (more direct) manner of speaking: “I was struggling with her” i.e. versus “I would have been struggling with her.”] A: … I was struggling with her. Different conversations get different speeches … like … how I explain stuff will be different. Not [sure] how else to explain how I think. It is just how I think or express myself. Q: [Is it] fair to say that [your] manner of speech fluctuates depending on what events you are describing?

A: Yes. [ 62 ] In argument, the Crown emphasized this grammar dimension, providing general (i.e., not case-specific) examples of conditional verb constructions (past, present, and future), designed to illuminate the differences between “real conditions” and “unreal conditions” e.g., the difference between (for example): “If I have money, I spend it” (per the Crown, a “real” condition) versus “If I had had money, I would have spent it” (per the Crown, an “unreal” condition, with the implicit premise that the speaker did not have money at the time).

Or, to give another unreal-condition example: “If you had asked us to help, we would have” (implicit premise: no request to help). [ 63 ] Per the Crown, the Accused’s use of the “would have” construction, contrasted to his “direct speech” (e.g., “I started my [motorcycle]” and “I said ‘stop … don’t [jump]’”), represented unreal-condition speech i.e., referred to events that did not actually happen. (In cross, the Crown had put it to the Accused that his “would have” phrasing signaled uncertainty about the reported events.

However, as noted, in argument, the Crown pivoted, emphasizing its “unreal condition” position.) [ 64 ] I disagree. [ 65 ] I accept the Crown’s position that the Accused alternated between “would have” and direct (or more direct) modes of speaking.

And that he did not appear to use them interchangeably, instead apparently using each to convey a different sense. [ 66 ] But I see the different sense reflected in “would have” versus “direct” speech not as distinguishing between “unreal” (imaginary, conjured, or otherwise not factual) events and actual events but instead as conveying, via “would have” speech, a degree of uncertainty about the referenced event, based on the strength, or otherwise, of his recollection. [ 67 ] For instance, I see his use of “would have picked her up [from her home]” (versus “I picked her up”) as implicitly signaling a degree of uncertainty i.e., with him apparently having no direct recollection of that occasion but, instead, thinking back to their habit or customary practice i.e., (effectively) “this was what we did ordinarily and this is likely what happened on this occasion too.” In other words, not as reflecting an “unreal condition” i.e., he was not saying (effectively) that he did not pick her up.

Again, instead (effectively): “I most likely picked her up, based on our history.” [ 68 ] That is not necessarily a credibility concern for the Accused.

If he did not have actual recall of something, it is understandable that he would reason or infer (i.e., as reflected in “would have” language) what happened (or likely happened) from experience. [ 69 ] However, an obstacle arose where he did that, or apparently tried to do that, on the subject of the “sex today?” conversation relayed by him. [ 70 ] With no s 276 Criminal Code of Canada permission sought, he was not permitted to refer to any prior sexual history in this

fashion e.g. “Based on our sexual history, I would typically say ‘_____’, and she would typically respond ‘_______’, and I believe or think that’s what happened this time.” [ 71 ] The Crown (properly) objected to such testimony (or such further testimony) on that basis, in this sequence, starting with the Defence questioning leading to the objected-to testimony: Q [defence]: What happened next?

A: At that point, we woulda … we probably started talking and woulda had a discussion .. usually then it was ‘want to go have sex upstairs before [my] roommate got home.” And that is when she walked up, I walked up behind [her] … I opened the door for her. … Q [defence]: You had a discussion? A: Yes. Q: And … you voiced … what [did you] voice to her in the discussion?

A: Oh, probably discussing how the evening was going to go and the sex topic would come up … sex … always … ‘hey do you …” [Crown objection on s. 276 grounds – no s .276 permission obtained to explore or refer previous sexual history] Defence: Do not offer information [concerning sexual history] between the two of you … focus on the night of this event. A: Yes [i.e. okay]. Q [defence]: Describe what you said to [the complainant].

A: I don’t know exactly what would have been said, but I would say … from past events … I would usually say “[Do you] want to have sex?”… Defence: Let’s keep our eyes on this particular day. If not particularly sure about something, do not rely on previous memories. If do not remember, [you] can say so. Can you summarize how the discussion went concerning sex that night? A: [I] would have said “let’s go upstairs and have sex before [my] roommate [gets] home.” Q [defence]: That is the gist of what you said to her? A: Yes.

Q: [After saying that to her i.e. posing that proposition to her, her response was ‘okay, let’s go [ 72 ] By his statements “usually then it was ‘want to go have sex upstairs?’ …”, “the sex topic would come up … always …” and “I would say … from past events … I would usually say” (at minimum), the Accused was clearly anchoring, in past events, his testimony about him proposing a sexual connection to her.

That is, he was inferring what happened, from their history. [ 73 ] In this example at least, his closing reference to “I would have said ‘let’s go upstairs …’” (i.e., in the context of these immediately preceding references to earlier events) also seems to signal a reference to those earlier events i.e., he was not relaying an actual recollection, at least at first. [ 74 ] As reflected in the above excerpts, he eventually stated (or confirmed) that, while he could not recall the precise words used (and was not permitted to “reason back” to any earlier sexual encounters for those actual or likely words), the “gist” of his communication was proposing sex upstairs before the landlord (potentially) returned. [ 75 ] He also was definite (i.e., not using “would have” or “might have” phrasing) in testifying about her response to his “sex proposal”, as reflected in the above excerpts (including “… and do you remember her response?” “Okay, let’s go” and “… and you remember the ‘yes’ part?” “Yes.”) [ 76 ] And the Complainant’s own testimony confirmed that he proposed having sex with her: Q: [following her testimony about him coming over to where she was sitting and touching her] What did he say?

A: He asked if we were going to have sex … and I said no. [and shortly afterward] Q: He approached you .. and he said he wanted to have sex with you. A: Yes . Q: You replied with a ‘no’? A: Yes. [and in cross-examination]

Q: It was clear to you that Mr. Mackenzie wanted to have sex with you that night. A: Yes . [ 77 ] When all the dust settles here, I do not mark down the Accused’s credibility on account of his “would have” phrasing, even concerning his “sex proposal” testimony.

As noted, he initially tried to “reason back” to (possible) earlier sexual activity between them, which reasoning was not permitted and which testimony I disregard. [ 78 ] But he later testified to having an actual recollection, even if not of the actual words used, of the gist or core of that communication. [ 79 ] And he gave “direct” (i.e., not “would have”) testimony about her affirmative response to his proposal. [ 80 ] In any case, the Complainant herself acknowledged him proposing sex with her albeit met (per her) with her negative response. [ 81 ] In the end, the Accused did not show that he used “would have” and “direct” modes of speech interchangeably or that “Eastern [Canadian]” patterns of speech support those modes being used interchangeably.

Instead, I find that he used the different modes to reflect, with the former, a degree of uncertainty about the reported event (anchoring his report in historical patterns). In other words, he meant what he said when he used the “would have” construction.

In yet other words, he instinctively used that phrasing in its ordinary, natural sense i.e., to signal a degree of uncertainty about what actually happened in a given referenced event. [ 82 ] However, as noted, any uncertainty about whether he in fact proposed (effectively) “sex upstairs before the landlord comes home?”, whether arising from his “would have” manner of speaking or a concern that his “recalled the gist” testimony only came after his initial recollections (framed with “would have” language), is dispelled (as noted) by the Complainant’s own evidence that he in fact made that proposal to her. [ 83 ] Accordingly, I find no credibility blemish arising from the Accused’s use of “would have” language, whether generally or concerning the proposing-sex aspect. 14.

Conclusion on Accused’s credibility [ 84 ] Overall, I found the Accused to be an essentially credible, and reliable witness.

He was not a perfect witness, for example, not providing much insight on what sparked or may have sparked, the Complainant to become increasingly angry and agitated later that day. [ 85 ] As noted, he was mistaken about the state of the door (“locked”, then “open”) on returning from his brief motorcycle excursion. [ 86 ] But his testimony was otherwise remarkably consistent, withstanding an intense and comprehensive cross-examination. [ 87 ] None of his testimony left me puzzled or confused. [ 88 ] He told a consistent, comprehensive, logical, and in the end, plausible account of the day’s events including, what happened in and around the “sex today” conversation in the garage, their joint trip upstairs, and what happened in the bedroom.

B. Credibility of the Complainant [ 89 ] The Complainant also testified in a largely straightforward manner, did not purport to recall every single detail of the events from 4.5 years ago, and was overall fair in her testimony. She was also willing to acknowledge personal difficulties.

For example, that she had what she called a drinking problem at the time of these events and that she had not been taking prescribed medication around that time. [ 90 ] I adopt and apply to her as well my observations above (about the Accused’s credibility) on these dimensions. [ 91 ] Intoxication-wise, I do not see a credibility shadow necessarily cast by the Complainant’s self-report of reaching a “6, maybe a 7” on the drunkenness scale i.e., in contrast to the Accused’s (“9”) estimate and even given her many-hours-later blood-alcohol level of .37. [ 92 ] As far as I can tell, both witnesses were providing their best estimates of the Complainant’s degree of intoxication i.e., from their respective perspectives, especially given the inherent imprecision in the “zero to 10” scale, with no universal or obvious “gradations” e.g., differentiating a “7” state from a “9” state.

Per him, she was extremely drunk but could apparently have been even drunker.

Per her, she was very drunk, but could apparently have been much drunker. [ 93 ] This is especially so with no expert evidence on alcohol absorption or anything akin (e.g. to help us understand the later .37 blood-alcohol result) and both apparently agreeing that the Complainant was still functioning to some degree at the end of the events at the residence i.e., standing at or near the entrance, speaking both with the Accused and then with police, and (apparently) leaving the residence under her own power, accompanied (initially) by one police officer. [ 94 ] However, her evidence was not always logical, and it also raised some credibility and reliability flags: • In direct, she testified that the Accused put one of his hands up her shorts “for a few minutes”, leading to contact with her genitals, which she described as “just rubbing, I suppose.” In cross, she said his hand was in her shorts for “maybe a minute … 60 seconds.” When asked whether it was just straight touching, or movement (which I took as referring to the genital-contact phase), she said, “just

touching” and did not contradict Defence’s

summary (“no movement”). These differences spark (modest) reliability concerns about this part of her testimony; • More troubling, she provided an implausible account of being picked up from the armchair (after (per her) she declined to have sex) and being carried across the garage by the Accused, using only his arms (i.e., not bearing any of her weight on his back or shoulders), then up the landing stairs, into the house, with no mention of whether the garage-house door was open or, if not, how the Accused managed to open it, up to the second floor, to the door of his bedroom.

Asked [in cross] to estimate her weight at the time of the events, she said “120 [pounds].” Faced shortly after, in cross, with hospital records, from the day after the event, reporting her weight as 78 kgs i.e., approximately 171 pounds, she gave no explanation of the discrepancy (effectively, “no comment on this”). Plus, she effectively accepted the Accused’s reported weight at the time of “125-130 pounds.” Asked “any idea of his weight then?”, she responded, laughing “Probably a lot less than mine.” And she could not recall if the Accused struggled while carrying her during the reported trip.

No evidence showed that the Accused, at the time, was exceptionally strong or otherwise capable of lifting the Complainant, given their respective weights at the time, out of the armchair, let alone carrying her, using his arms only, across the garage, up the landing steps, and up to the second story of the Accused’s residence. • I find that the Complainant’s “120 [pounds]” estimate, in light of her actual weight (more than 50 pounds heavier), was either a deliberate attempt to mislead the Court on a critical point (given her “was carried upstairs” account) or, at best, showed such carelessness and casualness that it blemished her credibility almost as much; • As damaging here was her attempt, once her actual weight was shown and she acknowledged that he weighed “probably a lot less” than her, to refine (or tried to refine) how the two of them got up the stairs.

She referred to her earlier (“carried”) testimony, noting she had reported one leg dragging along the ground, then testified that this leg supported some of her weight as they went upstairs. Q: “So you were hopping up the step?” A: “To an extent, yes.” Beyond that, in her police statement, she had described this going-upstairs phase differently again: “He was kind of shuffling me up the stairs” i.e., with no reference to being carried (first version) or to a combination of being carried and her assisting to some degree by hopping (second version).

Combined with her initial “carried” testimony, this testimony sparked serious concerns about the credibility of her account of the prelude to, and the events of, the bedroom encounter; • She also testified to having said “no” to sex multiple times in the garage and the same in the bedroom. In her police statement, she stated she did not say anything on the way up from the garage to the bedroom i.e., in this middle stage.

At trial, she said instead that she said “no” (or continued to say “no”) during that phase, acknowledging in cross that she was amending her statement version 4.5 years later i.e., in adding this middle-stage recollection.

She did not explain why she initially testified to being silent in the middle stage or how she came to have a different recollection at trial (modest credibility concern); • She tagged the Accused as “drunk” and “half-cut” without giving any evidence or at least any material evidence of how much he drank that day or referring to any behaviour reflecting such intoxication (or even in the range of those terms).

Asked in direct if she saw him “consume anything”, she said “yes … it was, like, whiskey or rum.” Asked later in direct if she saw how much he had to drink “on the balcony”, she said “I was not paying much attention … it was quite a few glasses of …. [i.e., she did not finish that sentence].” Asked if she saw “the bottle …?”, she said “the bottle was outside, next to the chair.

It was a regular … standard 750 ml bottle.” In other words, she did not provide specifics here e.g., what alcoholic drink was consumed, whether straight or mixed, in what quantities, (if mixed) in what proportions, in what size glass(es), over what time period, etc. And (again) she provided no details of observed impairment.

Asked in cross how many alcoholic beverages she had seen him consume [that day], she said “I do not remember.” I see her evidence here as reflecting a degree of animus to the Accused and casting a modest shadow on her credibility; • Her testimony of being panicked, troubled, and blacking out at the hospital referred to a panic attack at or around the time of her arrival at the hospital, but made no mention of her state of intoxication at that time, which (given her per-medical-report blood alcohol level of .37, reflecting a sample taken at some stage of her hospital stay on May 30, 2019) presumably played some role in her subpar condition at or around the time of her arrival at the hospital (both (modest) credibility and reliability concerns here); • She gave conflicting evidence in her police statement and trial testimony about the number of driving trips the Accused took during the afternoon or evening (“one or two” and “one”, respectively).

More significantly, proceeding on the basis that he made two trips, she did not convincingly explain why she phoned the police to report the second trip and not the first. She testified that on the second trip, the Accused was drunk (or more drunk) and was on a motorcycle. But (as noted), she gave no material evidence about how much he drank or the timing of it, at least between these two (possible) trips. And she did not explain why a motorcycle trip was more “reportable” than a truck trip.

The former may pose more danger to the rider, but the latter (i.e., if the driver has been drinking) presumably also poses a serious risk to other road users, pedestrians, and other members of the public i.e., would presumably be as “reportable” as a motorcycle trip (modest credibility concern); • The Complainant reported various non-observable injuries to the SART nurse examining her at the hospital (“reported tenderness to … sternum, … right breast, … lower quad of abdomen, [both sides] of her hips, and … lower back” (emphasis added).

Following her direct and cross testimony that the Accused did not apply any force to her body (i.e., other than carrying her upstairs, (possibly) pushing her towards the bed, (“not necessarily carried [into the bedroom] but more pushed”, with no other details) and having penile-vaginal intercourse with her) i.e., she did not report any contact with him that did or might have caused the reported tenderness, she stated in cross (effectively) that she could not account for any of the reported tenderness.

On all the evidence in this trial, the only reasonable inference here is that these reported tender (i.e., sore) spots on her body were the result of the balcony struggle reported by the Accused i.e., these sore spots are corroborative of his balcony-events testimony. (I see this as a modest reliability concern); • She appeared to embellish her testimony of the Accused’s behaviour on second passes. It was only in her second description of the “armchair conversation” that she described the Accused as “laughing” in response to her “no” to sex.

The same can be said with the reported-by-her statement by the Accused, after the sexual intercourse, “I guess that ‘no’ means a ‘yes’ then.” In her second description of that aspect, she added the detail (effectively) “… and then he laughed” (modest credibility concern); • She was definite in her initial testimony that she had nothing to drink before arriving at the Accused’s home and that they had made a direct trip from her home to his. However, in cross, she acknowledged both making an initial stop (brew pub) during the trip to

his place and having a drink (“a pint of Bud Light”) there and also a second stop (to allow her to attend a brief job interview) before heading to the Accused’s home (modest reliability concerns); • In her account (denied by him) of him leaving to purchase more alcohol, she said that she and the landlord (reported by her to have joined them later that day, after the bedroom sexual encounter) were upset that he returned with more alcohol for himself and none for them.

But she did not testify to having run out, or to running short of wine (which she had been drinking) and whatever the landlord had been drinking (if other than wine) (minor credibility concern); • When asked about certain responses towards the close of her police interview, she testified at trial that “by the end of the statement, I was not interested in answering any more questions”, referring to being exhausted and weary of “repetitive questions.” That may be so, but the transcript makes no mention of this, and it would presumably have been a simple thing for the Complainant to say, towards the end of the statement, “I’m getting tired” or “I’m not feeling up to answering any more question” i.e., instead of answering questions then which, at the trial, she wished to characterize as incomplete or inaccurate (modest credibility concern); and • When asked in cross if she was “feeling suicidal or unstable that night?”, she responded “no.” But the medical report (noted earlier) mentioned her self-report that she had been feeling suicidal, for the previous 24 hours, including the time span of the events in question (modest credibility concern). 1.

Conclusion on Complainant’s credibility and reliability [ 95 ] The Complainant was a problematic witness. [ 96 ] It was clear that she found testifying stressful and that thinking back to the period in question was difficult for her. In part, that was because the Complainant was experiencing various serious personal difficulties at the time of these (actual or asserted) events. [ 97 ] I have some concerns about the reliability of some of the details of the asserted sexual touching in the garage.

Credibility- wise, her account of that incident is essentially plausible. [ 98 ] I have serious concerns about the credibility of her account of how she and the Accused got upstairs and what happened in the bedroom. [ 99 ] In theory, the latter concerns cast a shadow over the credibility of her touching-in-garage account as well. But nothing in the evidence takes those concerns beyond theoretical.

That is, I discern two distinct credibility segments for the Complainant: an essentially credible account of the touching in the garage, and an essentially incredible account of the subsequent events (trip upstairs and bedroom encounter). C.

Other evidence [ 100 ] I have already touched on the reported-but-unobservable injuries. [ 101 ] Here, I focus on the SART nurse’s report of “erythema [skin redness] noted to left and right labia minora”, which the Crown noted in his closing argument i.e., as a marker of sexual assault. [ 102 ] I do not see that report, on its own, as illuminating the alleged sexual assault here, with the nurse’s report not offering any opinion on the cause of the noted erythema e.g., whether it was caused by the alleged sexual assault versus anything else (e.g., infection, reaction to medication, or otherwise). [ 103 ] And no other “cause evidence” – expert or otherwise – was tendered by the Crown.

V. Conclusion [ 104 ] Concerning the alleged sexual touching in the garage, the Complainant and the Accused both gave plausible accounts of what happened or did not happen. Neither gave evidence effectively undermining the other’s account of the incident.

And no evidence, in any form and from any source, served either to corroborate or to undercut either’s version of events. (For greater certainty, I acknowledge that the Complainant’s evidence, for one, is not required to be corroborated to be accepted.) [ 105 ] In the end, I am unable to decide who to believe about the alleged touching in the garage. [ 106 ] By definition, I have a reasonable doubt about whether any sexual touching at all happened in that segment. [ 107 ] Accordingly, I find the Accused not guilty of sexual assault in respect of that alleged touching. [ 108 ] Concerning the alleged sexual assault in the bedroom, the evidence shows, and I accept, that, while in the garage, the Accused proposed (effectively) “sex upstairs, in the bedroom, before the landlord comes home.” [ 109 ] I accept the Accused’s evidence that, after he so proposed, he and the Complainant walked into the house, up the stairs, and into his bedroom.

In other words, I reject the Complainant’s effectively incredible accounts of being “carried upstairs”, being “carried upstairs albeit while (effectively) assisting in the loadbearing by hopping from step to step” or being “shuffled” upstairs. And her evidence of saying “no” to the proposed sex upstairs. [ 110 ] The Complainant acknowledged that the Accused did not threaten her at any point and that he did not choke or strangle her or otherwise exert any coercive force against her (e.g., pinning her to the bed with his arms).

[111] I find that, in accompanying the Accused upstairs to his bedroom following his “sex upstairs?” proposal, and in the absence ofthreats or coercive force of any kind, the Complainant manifested her consent to “sex upstairs” with the Accused. [112] Per R v Ewanchuk, (SCC), [1999] 1 SCR 330 (paras 23, 29 and 47), consent can be expressed via words oractions (or both). [113] On this aspect, see the similar analysis of Raikes J. in R v JRM, 2017 ONSC 1284: I find that the sexual activity was consensual. Ms. M.D. went upstairs under her own power. She disrobed and entered the shower withMr.

J.R.M. for the purpose of having sexual intercourse. She bent over to facilitate that activity. She did so without force by or threat byMr. J.R.M.. It was a conscious voluntary act. I note that at no time did Ms. M.D. indicate that her participation in the sexual activity wasmotivated by a fear of harm from Mr. J.R.M..

Her decision to placate his child-like attitude was just that: her decision. [para 124][emphasis added] [114] The Complainant did not argue that, if it was found that she consented to “sex upstairs”, that the penile-vaginal intercoursedescribed by her (and by the Accused) exceeded the bounds of the consented-to-sex. [115] If I am mistaken in accepting the Accused’s evidence of the consensual nature of the bedroom sexual encounter, I have at leasta reasonable doubt as to the absence of consent, arising from his evidence or, in any case, from the evidence of the Complainant, giventhe noted credibility concerns about her evidence, both those centering on her account of the prelude to, and the actual events, of thebedroom encounter and, more generally, the overall credibility concerns noted earlier, which (collectively) convince me that it is at leasta reasonable possibility that the Complainant consented to the sexual activity in the bedroom. [116] In other words, the Crown did not prove beyond a reasonable doubt that the Complainant did not consent to the bedroom sexualactivity. [117] Accordingly, I also find the Accused not guilty of sexual assault in respect of that activity.

VI. Closing note [118] I acknowledge the very capable conduct of this case by both Defence and Crown. M. J. Lema J.C.K.B.A. Heard in Wetaskiwin, Alberta on the 14th to 16th days of November, 2023. Released orally in Wetaskiwin, Alberta (via Webex from Edmonton, Alberta) on 27th day of November, 2023. Dated at Wetaskiwin, Alberta (written reasons) on 27th day of November, 2023. Appearances: Yury Hetman Alberta Prosecution Service - Wetaskiwin for the Crown Alexander Hedges RG Defence LLP for the Accused