R. v. L.S., 2018 NLSC 240

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. L.S. , 2018 NLSC 240 Date : November 26, 2018 Docket : 201804G0111 Her Majesty The Queen v. L.S. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: November 20 and 21, 2018 Date of Oral Judgment: November 23, 2018

Summary: The Accused was charged with one count under

section 271 of the Criminal Code . The Court found the Accused not guilty. The Court concluded that the evidence was not sufficient to support a finding of guilt on the criminal standard.

Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Robert E. Simmonds, Q.C. Appearing on behalf of L.S. Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40 , 2000 S.C.C.40; R. v. J.K., 2015 NLCA 14; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. H. (C.W.) (1991), (BCCA), 3 B.C.A.C. 205, 68 C.C.C. (3d) 146; R. v. Mah, 2002 NSCA 99; and R. v. J.C.H., 2011 NLCA 8. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] The accused, L.S. (hereinafter the “Accused”), is charged with the following offence: Count # 1 on or about the 3rd day of May, in the year 2016, at the town of Lark Harbour, in the Province of Newfoundland and Labrador, didcommit a sexual assault on B.S., contrary to

section 271 of the Criminal Code. [2] At trial, the Crown called three witnesses, namely Constable Laura Joyce of the R.C.M.P., B.S. (hereinafter the“Complainant”) and, as well, C.S. The Defence called two witnesses, namely A.B. and the Accused. evidence [3] I will briefly summarize the evidence given by the various witnesses. Constable Laura Joyce [4] Constable Joyce testified she was the lead investigator on the investigation which led to the subject charge against theAccused.

She was a member of the R.C.M.P. detachment at Corner Brook at the time and obtained a statement from the Complainant onAugust 16, 2017, which gave rise to the charge. This was the date on which the Complainant first made a complaint to the police inrespect of the alleged incident which had occurred approximately 15 months earlier. She also took a statement from C.S. on September15, 2017. She could offer no direct evidence about the offence with which the Accused is charged.

The Complainant [5] The Complainant testified about a one-time incident involving non-consensual sexual activity between her and the Accusedwhich occurred on May 3, 2016 in the pick-up truck of the Accused. [6] The Complainant testified that on the evening of May 3, 2016, she was at a party at her friend’s garage. The friend was J.F.The Accused was also at the party as were others. The Complainant said she asked the Accused for a ride home and he agreed. She saidthat on the way home the Accused made a left turn and went to a part of the community called Bottle Cove rather than going directly toher home.

She further indicated that there was normal chit chat between her and the Accused initially but that his persona changed andhe started making sexual remarks and she started feeling uncomfortable. [7] The Complainant indicated she had been drinking that night but could not recall what she was drinking. She said it was notcoolers and then said words to the effect that she’d like to think it was definitely liquor or wine. She said she was feeling her drinks butcould walk and talk okay, could stand up straight, and was aware of her surroundings.

She was asked if her level of intoxication affectedher memory and her response was that it was not alcohol that was affecting her memory but that the traumatic experience itself was why

she was blocking out parts of what happened. [ 8 ] The Complainant said that the Accused asked several times if she would have sex with him but that she said no. She said this request and the making of the sexual remarks referred to earlier occurred after they had made the left turn to head toward Bottle Cove. She indicated that after they arrived in Bottle Cove, the Accused parked his pick-up truck and he then came over from the driver’s side to the passenger side and put his hand in her vaginal area outside of her clothing. She said she did not have the strength to push him away.

She said she kept telling him to stop but he would not take no for an answer. She said he made his way with his hand to under her pants and that after that the details get fuzzy. She indicated that what she recalled next was laying down in the vehicle with her head on the passenger side and her feet on the driver’s side and that the Accused was on top of her and forced his penis inside of her vagina. She said there was penetration but after that the details were again fuzzy. She indicated that at this time she had no shoes on, no shirt on, and her pants were down to her ankles.

She could not recall how this occurred. [ 9 ] The Complainant said the next thing she remembered was the Accused pulling her up onto the driver’s seat and into a position where she was facing the back of the truck and he was behind her. She said he forced his penis into her anus and penetrated her. While this was happening she said she saw headlights from an approaching vehicle and it was at this point that the Accused pulled out. She said her first instinct was to get her clothes on. She said she did not have time to put her blouse back on but simply put her coat on and otherwise got dressed.

She said the Accused also put his clothes back on. She got back to the passenger seat and she said she stuffed her blouse somewhere in the truck. [ 10 ] The Complainant said that the vehicle approached the truck of the Accused on the passenger side of the truck and that there were two occupants in it, namely C.S. and A.B., both of whom she knew and both of whom had been at the party that her and the Accused had been at earlier. She said they got out of their vehicle and came up to the passenger side for approximately five to ten minutes.

She said she froze and was in complete shock and did not say anything while they were there. She indicated that after they left, the Accused said he could not get hard anymore and he took her home not long after. [ 11 ] Under cross-examination, the Complainant, when questioned about her recollection of her level of intoxication and whether she was drunk to the point of throwing up, said that she had post-traumatic stress disorder and struggled with anxiety and depression and that she blocked things out.

Further, she said she struggled with little bits of information because of the way this experience had impacted her. [ 12 ] She also said it was correct that she had said she could not remember if she was drinking to the point of throwing up in her testimony on direct and that at the preliminary inquiry she had said she was not intoxicated to the point of throwing up. She also acknowledged saying at the preliminary inquiry that she did not remember what she was drinking. [ 13 ] The Complainant was questioned on cross-examination about why she did not simply get out of the vehicle and walk home.

It was put to her that nothing stopped her from doing that. Her response was that she did not know what was going through her mind but that it was correct she could have done so. [ 14 ] Counsel for the Accused also cross-examined the Complainant about her lack of recollection of details. She acknowledged that her recollection of many details was fuzzy. She also acknowledged that in describing what happened she made statements beginning with “I feel” and had said that she was “confused”.

In her testimony under cross-examination in certain areas she made statements such as “I feel it would make more sense” and “I’ve been trying to piece it together” in relation to what happened on the evening in question. The Complainant agreed she did not have a solid recollection of events. She was, however, adamant that she did not agree to engage in any sexual activity with the Accused and did not do or say anything to make him believe she did. [ 15 ] The Complainant was also shown various photos of the pick-up truck of the Accused and in particular the front seat area where the assaults allegedly occurred.

She was questioned about how things could have happened the way she described given that the truck had bucket seats in front and there was a large console between them. Her response was “In looking at the pictures I’m trying to understand it myself” and later “I’m trying to piece it together myself” and still later “I’m trying to piece this together in my head like I’ve been doing all along”.

The Complainant also at one point, when it was put to her that she could offer no explanation as to how the forced vaginal intercourse as described by her could have happened, said “I’m starting to think that for me to be lied down like that I feel like I feel like I can remember my head up against the door on the passenger side and my torso was across the seat and my legs was over the middle console or over the cup holders.

I’m still trying to make sense of that”. [ 16 ] The Complainant acknowledged that she suffered no bruises, abrasions or markings as a result of the alleged assault and that she did not notice any damage to her clothing. [ 17 ] The Complainant also acknowledged that she did not raise any concern with C.S. or A.B. and that it was possible she was laughing and carrying on with them. She also confirmed that her recollection was that they had come to the passenger side of the truck where she was.

When it was put to her that they had not got out of their vehicle as she alleged, she was adamant that they did get out. [ 18 ] It was also put to her on cross-examination that she had told her friend, J.F. about this incident the next day and she agreed this was correct. It was further put to her that she had told J.F. that next day that she was embarrassed because she had sex with someone the night before and when J.F. asked who it was she had told her it was the Accused. It was further put to her that she at no point ever said anything to J.F. that anything was forced or not consented to.

When asked if this was correct, her response was “In that moment the next day when I told her yes”. It was also put to her that the only thing she had said to J.F. about it was that she was embarrassed because she had sex with her cousin. The Complainant acknowledged this was correct. C.S. [ 19 ] C.S. was the final Crown witness to testify. He indicated he knew both the Accused and the Complainant because he had grown up in the same community with them. He testified that he was at the party at J.F.’s where the Accused and the Complainant had been but he was not drinking.

He indicated that the Complainant was drinking but said she was not drunk and was not sober. He did not see the Complainant and the Accused leave together. He said he left with A.B. around midnight but could not remember whether it was he or A.B. who drove. He testified that at some point while driving around town they went to Bottle Cove where they saw the Accused’s

truck with him and the Complainant inside. He indicated they stopped on the driver’s side of the Accused’s truck and that they did not get out their vehicle but proceeded to have a chat from the vehicle they were in. He described the Accused and the Complainant as laughing and carrying on and that they sounded like they were having a good time. He recalled they were there five to ten minutes. He could not recall specifically having a conversation with the Complainant but he recalled both the Accused and the Complainant having smiles on their faces and seeming like they were having a great night.

He said he noticed no signs of stress or anything. [ 20 ] Under cross-examination he indicated that the Accused and the Complainant were just sitting there when they approached the truck and that he did not notice any moving around as they approached. He also indicated that while the conversation was largely between him, A.B. and the Accused, the Complainant did take part. [ 21 ] C.S. was asked if he got any sense that there was anything wrong or improper going on while the conversation was ongoing and he indicated he did not.

He also said that if there was anything improper going on, he would be able to tell as he knew both the Accused and the Complainant. A.B. [ 22 ] A.B. testified that he also knew the Accused and the Complainant because he had grown up with both of them. He indicated he had also been at the party at J.F.’s on the night in question. He said he was drinking but not drunk. He testified that the Complainant was hanging around the Accused quite a bit that night and he thought she was showing interest in him. He indicated he saw them leave the party together but not get in the truck.

Later that night he and C.S. were out driving around and went down to the part of the community known as Bottle Cove. He indicated that they saw the Accused’s truck and they pulled up next to the driver’s side of it. He indicated that they did not notice any quick movement from either the Accused or the Complainant as they approached the truck. He testified that neither he nor C.S. got out of the vehicle they were in but had a conversation from vehicle to vehicle. He estimated they were stopped talking for 15 to 20 minutes. He said he was mainly talking to the Accused and had no conversation with the Complainant.

He described the conversation as “laughing and carrying on”. He testified he did not see anything abnormal or unusual and got no sense that the Complainant was frozen in the sense that she could not speak. He also indicated he did not get any sense that anything was wrong and everything seemed fine with him. He said that the Complainant was involved slightly in the conversation. [ 23 ] On cross-examination, he indicated he could not recall the Complainant speaking but described her as drunk, happy and smiling. He said she was not so much a part of the conversation as opposed to listening to it.

L.S. [ 24 ] The Accused testified about being at the party at J.F.’s. He indicated he arrived there around 9:30 p.m. in his truck which was a 2014 Dodge Ram. He identified the truck in a series of photographs which were entered into evidence. He testified that he drank seven to ten Coors Light beer at the party and estimated he left around 2 a.m. He conceded later in his testimony that this was a guess and it may have been earlier. He testified that while he should not have drove, he did leave the party in his truck and the Complainant accompanied him.

He indicated on direct examination that he was not sure if the Complainant asked him for a ride or if he asked her if she wanted a ride. On cross-examination he indicated she asked him for the ride. He said that her friends had told her not to get aboard with him but she had done so anyway. He believed this was because he had been drinking. [ 25 ] The Accused indicated that instead of going directly to the home of the Complainant he went to the area of the community called Bottle Cove and parked near some fishing sheds. He indicated that he had a smoke and that they listened to music and “chit chatted”.

He could not recall what they chatted about. He indicated he and the Complainant kissed by him leaning over the console from the driver’s seat and her leaning over the console from the passenger’s seat. He testified that the Complainant took her clothes off first and did so in the passenger seat where she was seated and he then took off his clothes in the driver’s seat where he was seated. He said the Complainant then came over to his side, got on top of him and they had vaginal sex.

He indicated he had the driver’s seat pushed back as far as it could go and the steering wheel up as far as it could go. [ 26 ] The Accused testified that after some time he asked the Complainant if she wanted to have anal sex to which she said yes and they then repositioned themselves with the Complainant kneeling up on the driver’s seat with her hands and torso extended into the back seat and him behind her. He said the anal sex did not last long and ended when they saw the lights of a vehicle approaching. This was the vehicle which C.S. and A.B. were in.

He testified that this vehicle backed in next to the driver’s side of his vehicle and neither C.S. nor A.B. got out of the vehicle. He said they chatted for about 10 to 15 minutes and that the Complainant was part of the conversation. He described the conversation as laughing and carrying on but could not recall exactly what was said. He testified that he and the Complainant left shortly after C.S. and A.B. left and he brought her home, stopping a little way past her house at her request.

The Accused said on a number of occasions in his testimony on direct that the sexual activity that occurred between him and the Complainant was consensual and no force was involved. He also testified that it was not possible to have vaginal sex in the manner described by the Complainant in his truck because of the presence of the large center console. [ 27 ] On cross-examination the Accused was questioned about whether he asked the Complainant if she wanted to go to Bottle Cove. He at one point said he did ask and she said yes.

At another point he said the Complainant had not said she did not want to go. [ 28 ] Crown counsel cross-examined the Accused extensively about how he knew that the Complainant consented and the details of the taking off of clothes and the various movements in the truck to get in the positions where he said the sex occurred. The Accused did not have a good recall of the details of the clothes he or the Complainant had off. Also, he could not explain how he knew that the Complainant consented to the sex initially, that being the vaginal sex, but he maintained it was consensual.

He did maintain under cross- examination that he did ask the Complainant if she wanted to have anal sex before they engaged in same and she agreed. [ 29 ] The Accused denied on cross-examination that he had made the sexual remarks as they were driving to Bottle Cove as alleged by the Complainant. the law

[30] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, Cory, J. states as follows on the issue of burden of proof and thepresumption of innocence at paragraph 39: 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given alongthese lines: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [31] The Supreme Court of Canada further elaborates on the definition of reasonable doubt in R. v. Starr, 2000 SCC 40 ,2000 S.C.C. 40. At paragraph 242, Iacobucci, J. said as follows: 242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolutecertainty than to proof on a balance of probabilities.

As stated in Lifchus, a trial judge is required to explain that something less thanabsolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of thesealternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonabledoubt standard appropriately between these two standards.

The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177: If standards of proof were marked on a measure, proof “beyond reasonable doubt” would lie much closer to “absolute certainty” than to“a balance of probabilities”.

Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, inmy view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of nosignificance, but the idea itself must be conveyed. . . . [32] It is also important to remember that in applying the doctrine of proof beyond a reasonable doubt, it is the cumulative effect ofall of the evidence that must satisfy the standard not each individual piece or item of evidence. In R. v.

J.K., 2015 NLCA 14, Rowe, J.A.(as he then was) said at paragraphs 5 – 7: 5 Misapplication of the doctrine of proof beyond a reasonable doubt occurred at several passages in the judge’s reasons for decision. These passages indicate that the trial judge did not apply reasonable doubt to the cumulative effect of all the evidence pointing awayfrom the guilt of the accused, weighed against the cumulative effect of all the evidence pointing toward the guilt of the accused. Rather,the judge applied reasonable doubt to items of evidence in a piecemeal fashion.

It is settled law that this constitutes a legal error. 6 In R. v. Morin, (SCC), [1988] 2 S.C.R. 345, Sopinka J. wrote at page 354:

[I]t is misdirection to instruct a jury to apply the standard of reasonable doubt to individual items of evidence. There is ample authorityfor this view: Stewart v. The Queen, (SCC), [1977] 2 S.C.R. 748, at pp. 759-61; R. v. Bouvier (1984), (ON CA), 11 C.C.C. (3d) 257 (Ont. C.A.), at pp. 265, aff’d (SCC), [1985] 2 S.C.R. 485. 7 Sopinka J. set out the correct way to apply reasonable doubt, which is to consider the “cumulative effect” of the evidence. At page 359,he adopted a passage from Thomas v.

The Queen, [1972] N.Z.L.R. 34 (C.A.), in which the trial judge charged the jury in the followinglanguage (at page. 36) Now whilst each piece of evidence must be carefully examined, because that is the accused’s right and that is your duty, the case is notdecided by a series of separate and exclusive judgments on each item or by asking what does that by itself prove, or does it prove guilt?That is not the process at all.

It is the cumulative effect… [33] Finally, since the Accused testified in respect of the offence and denied the facts relied on by the Crown in support of thecharge then credibility is a very important issue to be considered. The leading case in providing guidance on how to deal with the issueof credibility in a case such as this is R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

At paragraphs 10 and 11 of that decisionit was stated: 10 In a case where credibility is important, the trial Judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial Judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial Judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979, (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357 [1988] 2 S.C.R.]. 11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. Atrial Judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [34] In R. v.

H. (C.W.) (1991), (BC CA), 3 B.C.A.C. 205, 68 C.C.C. (3d) 146, a case where credibility was acritically important issue as it is in this case, Wood, J.A. for the British Columbia Court of Appeal recommended adding a fourthcomponent to the suggested approach in R. v. W. (D.).

He said: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If after a careful consideration of all of the evidence you are unable to decide whom to believe, you must acquit. [35] I agree with Wood, J.A. on the adding of this fourth component to the suggested approach from W.(D.). position of the parties [36] The position of the Crown is essentially that the Complainant was a credible witness and that the Court should accept herevidence that she did not consent to any sexual activity with the Accused.

Further, it was the position of the Crown that the evidence ofthe Accused was not particularly credible or reliable and did not raise a reasonable doubt. [37] As for the Defence, it was argued that the evidence of the Complainant was unclear, full of gaps and described events thatcould not have occurred as alleged by her given the configuration of the truck of the Accused. Overall, counsel for the Accused arguedthat the evidence of the Complainant did not meet the criminal standard of proof beyond a reasonable doubt.

Further, counsel for theAccused argued that the Accused was a credible witness and the Court should accept his testimony that the sexual activity whichoccurred was consensual. analysis [38] In this case, we essentially have the Complainant saying the offence occurred and the Accused saying it did not. There is noother direct evidence of the offence having occurred. There was some other relevant evidence offered at the trial, that being thetestimony of C.S. and A.B. However, their evidence was indirect and related primarily to the issue of the Complainant’s recollection of

the night in question. [39] Simply because a charge largely comes down to a complainant’s word against the word of an accused does not mean that anaccused cannot be found guilty. Instead, the determination of guilty or not guilty must be based on an assessment of the evidence todetermine whether it meets the requisite standard of proof, namely whether it proves the offence beyond a reasonable doubt.

In carryingout such an assessment in a case such as this where credibility is an issue, and in fact critical to the outcome, the test from W.(D.) as setforth earlier is applicable. [40] In the decision of the Nova Scotia Court of Appeal in R. v. Mah, 2002 NSCA 99, Cromwell, J.A. (as he then was) explainedhow the assessment of credibility relates to the concept of reasonable doubt. At paragraph 41 he said: 41 The W.D. principle is not a “magic incantation” which trial judges must mouth to avoid appellate intervention.

Rather, W.D. describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; S.C.J. No. 57 (Q.L.) at 756.

As Binnie, J. put it in Sheppard, the ultimate issue is not whether the judgebelieves the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial isnot credibility but reasonable doubt. [41] I wholeheartedly agree with those words of Cromwell, J.A. It is not my task in a case such as this to attempt to resolve thebroad factual question of what happened.

Instead I have a more limited role, that being to decide whether the essential elements of thecharge have been proven beyond a reasonable doubt. [42] As was made quite clear in Lifchus, it is not sufficient that an accused is probably guilty. Thus, even if I conclude that theAccused is probably guilty, it is my obligation to find him not guilty because the Crown would not have satisfied its burden of proofbeyond a reasonable doubt. Probable guilt does not equate to proof of guilt beyond a reasonable doubt.

I must also be cognizant of thefact that the standard of proof of beyond a reasonable doubt lies much closer to proof to an absolute certainty than it does to proof on abalance of probabilities as was confirmed in Starr. [43] As noted previously, credibility is extremely important in this case. That is because the case largely comes down to the word ofthe Complainant against the word of the Accused. This ordinarily brings the analysis recommended in W.(D.) into play. However, wherean accused testifies, the trial judge in assessing the evidence does not need to go immediately to the W.(D.) analysis.

Instead, theappropriate way generally to proceed is to first consider the evidence offered by the Crown. [44] In R. v. J.C.H., 2011 NLCA 8, Rowe, J.A. (as he then was) indicated that in applying this three-stage formula of Cory, J. fromR. v. W.(D.), a trial judge should first consider the evidence offered by the Crown. At paragraph 13, Rowe, J.A. said: 13 A trial judge should generally first consider the evidence offered by the Crown in support of the charges, especially that of thecomplainant. That sets out the case that the accused has to meet.

Only if there is sufficient strength in that evidence is it necessary toconsider the evidence (if any) led by the accused. That sequence accords with the burden of proof resting with the Crown. . . . [45] Thus, I shall begin my analysis by first considering the evidence offered by the Crown to prove the charge against the Accused.The evidence of the Complainant is critical to the case for the Crown.

In assessing the evidence of the Complainant, I have arrived at theconclusion that I have a reasonable doubt about whether the sexual acts between the Accused and the Complainant were non-consensualas alleged by the Complainant. The burden is on the Crown to prove in a case such as this to the criminal standard of proof beyond areasonable doubt that there was no consent and in my determination that burden has not been met. [46] Let me explain some of the reasons why I have a reasonable doubt based on the evidence of the Complainant.

Firstly, theComplainant by her own evidence did not have a solid recollection of the events of the evening in question.

In fact, there were large gapsin her memory and on multiple occasions in her evidence she described her memory as to details being fuzzy. [47] Secondly, and related to my first concern outlined above, the Complainant when being cross-examined and having it suggestedto her that the vaginal sex in the way she described was impossible given the configuration of the truck responded with phrases such as“In looking at the pictures, I’m trying to understand it myself”, “I’m trying to piece it together myself”, and “I’m trying to piece thistogether in my head like I’ve been doing all along”.

Those comments cause me to question the accuracy and completeness of theComplainant’s memory. [48] Thirdly, the Complainant seemed to me to be guessing or speculating as to what happened when giving her evidence anddescribing the events in question using phrases such as “I feel”, “I feel it would make more sense” and “I’m starting to think that”. [49] Fourthly, I do not accept the Complainant’s evidence that when C.S. and A.B. came up to the truck, in which her and theAccused were parked in Bottle Cove, they came up to the passenger side of the truck.

Nor do I accept her evidence that they got out ofthe vehicle they were in and came up to the passenger side window where she was sitting. The evidence of the Accused, C.S. and A.B.was consistent that C.S. and A.B. pulled up to the driver’s side of the Accused’s truck and that neither C.S. nor A.B. got out of theirvehicle but instead the conversation that occurred took place from vehicle to vehicle with windows down. I accept the evidence of theAccused, C.S. and A.B. on this point.

I note that C.S. and A.B. were independent witnesses who were friends with both the Accused andthe Complainant and in the case of C.S. he was not drinking at all on the night in question. While the Complainant’s incorrectrecollection on this point in and of itself does not mean she did not remember other things correctly, combined with my other concernsabove, it does further demonstrate to me that the Complainant’s recollection of the events of the evening in question is not reliable. [50] Fifthly, what the Complainant said to her friend, J.F., the next day about the incident troubles me.

She merely told her that shewas embarrassed because she had sex with her cousin. Further, her response to the question whether it was correct she had said nothingto her friend that anything was forced or not consented to was: “In that moment the next day when I told her yes”. This conduct combined

with the fact that it was 15 months after before she made the complaint to the police that the sex was non-consensual also contributed to my conclusion that I have a reasonable doubt based on the evidence of the Complainant. [ 51 ] As a result of my conclusion that I have a reasonable doubt about whether the sexual acts were non-consensual based on the evidence of the Complainant, I do not need to go on to consider the questions that must be asked in the W.(D.) analysis.

However, I will comment briefly on the analysis. [ 52 ] I certainly would not call the Accused the most credible witness I have ever encountered and there were certainly parts of his evidence that I do not accept. However, even if I had not reached the conclusion I did on the evidence of the Complainant, on the crucial issue of whether the sexual activity was consensual, the evidence of the Accused at the very least, in my view, leaves me with a reasonable doubt that the sexual activity was non-consensual.

SUMMARY and conclusion [ 53 ] I have concluded, based on the evidence of the Complainant, that I have reasonable doubt whether the sexual acts between the Accused and the Complainant were non-consensual as alleged by the Complainant. [ 54 ] Further, the evidence of the Accused also leaves me with a reasonable doubt whether the sexual acts were non-consensual. [ 55 ] I would note that my decision does not mean that the offence as alleged did not occur. Instead, what it simply means is that I am not satisfied beyond a reasonable doubt that it did occur. [ 56 ] As a result, I am duty bound to find L.S. not guilty of the charge against him. _____________________________ George L. Murphy Justice