R. v. Bartmann, 2020 NLSC 140

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bartmann , 2020 NLSC 140 Date : November 17, 2020 Docket : 201908G0098 Her Majesty The Queen v. John PHILIP bartmann 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486.4(1) of the Criminal Code , information that may identify the person described in this judgment as C.P. shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as the victim or witness shall not be published, broadcasted, or transmitted in any manner. [This version of the judgment complies with the order.] Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: September 15-16, 2020

Summary: The Accused was charged with having committed sexual assault against C.P. on two separate occasions. C.P. and the Accused were the sole witnesses at trial. C.P.’s recall was poor. Her account of the alleged incidents was vague. The Accused denied any kind of assault. He was a forthright and consistent witness. Upon review of all the evidence the Accused was acquitted of both offences. The Court was not satisfied the offences had been established beyond a reasonable doubt.

Appearances: Kevin Maher Appearing on behalf of the Crown Robert Ash Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019 NLCA 37; R. v. Best, 2016 NLCA 10; R. v. S.O.,2019 NLCA 42; R. v. M. (R.E.), 2008 SCC 51; R. v. Moradi, 2016 ONCJ 842. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Mr. Bartmann is charged with having committed two sexual assaults against C.P.

The trial proceeded by judge alone and therewere two witnesses called: C.P. and the Accused. For the reasons that follow, I find the Accused not guilty of both counts. The evidence of C.P. [2] C.P. testified that she was 30 years of age and currently employed. Both she and the Accused grew up in the samecommunity. She still lived in the community, but the Accused now lived elsewhere. C.P. stated that she had known the Accused herentire life, but they only became close friends in 2015. C.P. stated that at the time, they were both going through personal issues: shewith the death of her sibling, and he with divorce.

Because of this, they often drank together. [3] C.P. described two incidents where she alleged the Accused took advantage of her being intoxicated and had sexual contactwith her without her consent or knowledge. The alleged assaults occurred in March of 2018. At that time, she was living at theAccused’s apartment. She had nowhere else to go but had expected to be there only temporarily. She slept in the Accused’s son’sbedroom who resided there part of the time. [4] C.P. described an incident where the two had gone to a bar to go drinking.

She remembered going to the bar late in theafternoon, but after drinking to the point of intoxication, she remembered nothing until coming “to life” to perceive that the Accused wason top of her having intercourse with her. C.P. testified that she did not know how much she had to drink, or what she consumed, but sheknew it was “a lot” because her only memory prior to waking up was that she went to the bar with the Accused. The Accused was alsodrinking, but she no idea what and how much. She did not recall anyone else accompanying them to the bar.

She stated the Accused toldher they had gone to a second bar but she had no memory of that having occurred. She did not know when or how they returned to theapartment. She described her level of intoxication on that occasion on a scale of one to ten as being “ten plus”. She stated that they alsoconsumed drugs, including cocaine. Her last memory before waking up was sitting at the bar and laughing.

C.P. stated that it was thefirst time she had been that intoxicated where she lost “hours of my evening”. [5] When asked to describe more specifically what she recalled when she awoke to find the Accused having sex with her, C.P.testified that it was like “waking up from a daydream where he was on top of her”. She described feeling like an empty shell. She did notthink that the event was actually taking place. She did not know if she was asleep or awake. The “whole memory was gone”. There wasblack, and when the black started to dissipate, she perceived that the Accused was on top of her.

He had penetrated her vagina with hispenis. She was on his bed, and lying on her back. C.P. stated she did not know how long the assault lasted, that she was “still pretty outof it”. C.P. repeated that what was happening did not feel like real life but felt like a dream. [6] C.P. testified that she did not say anything because she did not think the assault was really happening. C.P. explained that shehad persistently rejected advances from the Accused for years.

She was not “at all” attracted to the Accused and she would never haveallowed him to be on top of her having sex with her. [7] When she woke, she realized she was in the Accused’s bed and that he was trying to “cuddle” with her. C.P. stated it was thenshe realized that the intercourse had occurred. She testified the Accused was “hugging” her. She pushed his arm away and left the bed.She picked up her clothes and went to the other bedroom. She did not know how much time passed between when she perceived that he

was having intercourse with her and she left his bedroom. She did not pay attention to whether he was asleep or awake because she wanted to get out of the room. She did not know how she became undressed, or how she came to be in the Accused’s bed. [ 8 ] C.P. testified that she remembered that she had retrieved a knife which she placed under the pillow in the other bedroom. She assumed she obtained it from the kitchen. She then went back to sleep in the other bedroom.

She stated she did this because she realized that she had not been dreaming, and that the Accused had waited until she was so drunk he could have his way with her. She testified she had never slept with a knife under her pillow before. C.P. stated that at no point, from what she could recall, had she consented to having sex with the Accused. [ 9 ] C.P. stated that after this, the Accused went about his day to day living “as if nothing had happened”. She did not confront him about what happened. C.P. stated because she was living at his apartment, “it would have been awkward” so she said nothing.

However the next evening, while she was laying on the couch in the living room of the apartment, the Accused lay down next to her, put his hand on her behind and started to kiss her “like a couple”. C.P. stated she said “No. Stop!” C.P. told the Accused she was going to bed to get “out of the situation”. She stated she was in shock and angered that the Accused had done this. C.P. stated she did not want to have a big argument because if the Accused told her to leave, she would have nowhere to stay.

C.P. did not explain why she had nowhere else to live. [ 10 ] Approximately a couple of weeks later, either on March 18 th or 19 th , the night of a hockey tournament banquet, C.P. stated she “finally” confronted the Accused. C.P. had been home, and had been drinking. She said on a scale of one to ten she was about a four. The two were supposed to have gone to the banquet together, but she decided not to go. When the Accused came home, C.P. stated she confronted the Accused. She stated she could tell the Accused also had been drinking. The Accused responded to her she had “asked for it”, and “wanted” it.

C.P. stated the Accused genuinely thought he had done nothing wrong. This upset C.P. and she punched the Accused in the face in response. The punch caused the Accused to have a black eye. She thought her phone may have made contact with the Accused. The two started screaming and shouting back and forth and pushing each other. C.P. told the Accused he took advantage of her, and that if she had been sober, nothing would have happened. C.P. stated the Accused screamed in response that she “wanted it” and kept “asking for it”.

C.P. stated the two fought for several hours. [ 11 ] C.P. stated she continued to drink, even as they fought, because she “was so angry”. She stated she was drinking vodka straight from a bottle. At one point, after they had been fighting over the bottle for “so long”, she was pushed to the floor just inside the Accused’s bedroom. She stated she was so tired she stayed there and “passed out”. She remembered she “did not have the energy” to get up off the floor.

She was certain that she was on the floor when she fell asleep. [ 12 ] The next thing she remembered was that she was on her back on the Accused’s bed, and he was over her with his hands down her pants touching her vaginal area. She had no idea how she had ended up on the Accused’s bed. She testified she was “really out of it” and about the same level of intoxication as the previous incident. She was still dressed. She described that again what was happening did not feel real to her and she did not remember anything else until she awoke. [ 13 ] When she awoke the two started arguing again.

C.P. explained she could not believe that something had happened for a second time. She said the Accused still did not think he had done anything wrong, and sent her a picture of his eye, and made a face “laughing about it”, to her mobile phone. She stated she was in the other bedroom at that point, and then the arguing started again. [ 14 ] C.P. was adamant she never responded to any of the Accused’s advances towards her during their friendship. She stated at times, she ended their friendship because of how he behaved towards her.

She testified that the two had argued on occasion, but the arguments became physical only twice, including this incident. C.P. also stated that prior to the incidents, at times, they were best friends, and she trusted the Accused. She testified that since the incident she did not like drinking with other male persons, and was on antidepressants. [ 15 ] Under cross-examination, C.P. agreed she moved into the Accused’s apartment in mid-February. She did not agree that she had been “kicked out” of her mother’s home where she had been residing previously because of her drinking and consumption of drugs.

C.P. stated she had no issues with alcohol or drugs until her sister passed away. C.P. stated that her relationship with the Accused “fueled” her issues with drinking and drugs. She denied living with her grandparents just before moving in with the Accused or telling the Accused that her grandparents had “kicked her out” of their home. She denied that she told the Accused that her mother had kicked her out of the house. [ 16 ] She agreed she was staying at the Accused’s apartment only until she could attend a rehabilitation centre. She was hoping to attend one out of province.

She agreed she was taking antidepressants at the time she was at the Accused’s apartment, but qualified that the prescription was for two weeks and was not re-filled. [ 17 ] When suggested to C.P. that she was a frequent user of cocaine, and how often she ingested cocaine, C.P. responded she used because the Accused supplied it. She would use it as often as he did. She did not use it every day. [ 18 ] When asked about the landlord upstairs from the Accused’s apartment, C.P. stated that the landlord was the Accused’s friend, not her friend.

C.P. agreed there was an occasion when she used cocaine with the landlord and the Accused. When asked if there were noise complaints from the landlord about her, C.P. stated it was usually the Accused. The only complaint about her was the argument when she confronted the Accused about what had happened.

When asked if she was an emotional person prone to getting upset, C.P. replied, if “I have been raped by someone who was supposed to be my friend.” [ 19 ] It was suggested to her there was an incident at the apartment when she became upset because she believed there were bed bugs and removed the Accused’s furniture. C.P. became upset and responded to “just get to the questions why we are here.” [ 20 ] C.P. agreed she had a good relationship with the Accused prior to the alleged incidents.

She agreed they would text each other on Facebook. [ 21 ] C.P. was then asked whether on the night of the hockey banquet if she had wanted the Accused to obtain some cocaine. C.P.

stated no she did not want cocaine. C.P. was then shown some excerpts of texts from Facebook between her and the Accused. C.P. agreed these were excerpts between she and the Accused but stated this was not the only conversation. It was suggested to C. P. that the reference by the Accused to “hustling to get what you asked” was a reference to the Accused seeking cocaine on her behalf. C.P. responded that she did not tell the Accused to get cocaine.

At that point C.P. abruptly left the witness stand and walked out of the court. [ 22 ] When C.P. returned to the stand, she agreed the phrase may have been a reference to cocaine, but was adamant she had not asked the Accused to seek cocaine on her behalf. [ 23 ] Counsel pointed to a later text that same evening, this one by C.P. to the Accused asking him “Do you come bearing gifts”. Counsel queried whether this was a reference to cocaine. C.P. agreed that it was a reference to the Accused bringing home cocaine. C.P. agreed that the two had probably done cocaine when the Accused had arrived home from the banquet.

However she denied that the argument started because she wanted to do more cocaine, and the Accused would not give her anymore. [ 24 ] C.P. also agreed that at some point the landlord telephoned the Accused. This was after the two had been arguing for some time. She disagreed that the Accused conveyed to her that the landlord was saying that she needed to calm down or move out. It was suggested to C.P. that this was why she became upset, because she was told she had to leave the apartment.

C.P. agreed she was upset, but it was not because the landlord had stated she had to leave. [ 25 ] It was then suggested to her that the Accused told her that if she did not leave, he would have to “call the cops”, and that that was when she threatened him that she would make allegations about him to the police. C.P. responded that the suggestion was a “flat out lie”. It was suggested to C.P. that once the Accused told her that she had to leave the apartment that she did not go to the police, but posted statements on social media that the Accused had sexually assaulted her.

C.P. responded that she posted “the truth”. C.P. stated she did not want to go to the police, because the “police don’t do anything”. [ 26 ] C.P. was asked about her daughter playing with the Accused’s son on occasion, during the time in between the two alleged assaults. She agreed that there were occasions, but she could not recall when the visits occurred. [ 27 ] It was suggested to C.P. that she tried to “paint a picture” of the Accused pursuing her relentlessly. C.P. denied this.

Counsel suggested to her that she told the police that the Accused had been trying to “start something with her” for a couple of years before the alleged incidents. C.P. stated that she was not exaggerating. It was pointed out to C.P. that she told the police she did not want to give a statement unless the Accused would be charged. C.P. responded she did not want to go to the police because she knew nothing would come of it. She stated she knew what she said in her statement.

She did not agree she embellished her statement to the police. [ 28 ] C.P. agreed that she had stated that the Accused would send her love letters via social media declaring his love for her, but would then delete them. It was suggested to her that he would also give her advice about other relationships. C.P. stated “No.” She was then shown an exchange of texts between her and the Accused. It was suggested to her that the texts showed the Accused was giving her advice.

C.P. stated the comments in the text messages were a joke. [ 29 ] When asked that the reason C.P. had stated to the police, and during her testimony, that the assaults did not “seem like they were real” was because the assaults did not happen, C.P. responded “No.” It was suggested to C.P. that she made up the allegations as retribution for the Accused, because he told her to leave his apartment. It was further suggested to C.P. that because she was so intoxicated on both of the occasions the Accused was to have assaulted her, she did not really know what happened. C.P. disagreed with the suggestions.

The testimony of the Accused [ 30 ] The Accused testified he was 31 years of age. He had been working at the time of the alleged incidents, but because of the current COVID-19 pandemic, he was not presently employed. He explained that in November of 2017, he started renting the particular apartment. It was a basement apartment, and the landlord lived upstairs. He stated he had an 11 year old son. He had shared custody arrangement with the son’s mother. The son would sometimes stay with him at the apartment, and had his own bedroom. No one else lived at the apartment prior to C.P. moving in.

There was no conflict with the landlord until C.P. lived there. [ 31 ] The Accused stated, like C.P., that the two had known each other since childhood. In 2016, they became friends because of drinking. She was someone he could talk to while he was going through a divorce. He stated she came to live with him because he understood she had been having trouble with her mother. C.P. had been kicked out of the home because she had been drinking and not helping. She had stayed with her grandparents, but C.P. told the Accused her grandfather had sexually assaulted her.

He understood she had nowhere to go, so he allowed her to rent from him until she could “get into rehab”. She paid 500 dollars for the month, and moved in February13 th , 2018. The Accused understood C.P. would be going for treatment in a “couple” of weeks. She was not working. [ 32 ] He described their relationship as “good friends”. There was no romantic relationship. The Accused denied “hitting on” C.P. or writing messages declaring his love for her. [ 33 ] The Accused stated that there were “issues” with C.P. while she lived at his apartment.

There was an occasion when she thought there were bedbugs in the apartment and moved the furniture outside. The landlord also complained that C.P. was loud. The Accused stated he was given warnings from the landlord about C.P. living there. [ 34 ] The Accused agreed there was an occasion in early March when the two went drinking. He explained they met at one bar late in the afternoon, and then traveled to a second bar, around 10 to 11 p.m. They took a taxi home at about midnight. He denied that there was any sexual contact or that he touched her in any way.

He stated that once the two returned home, they both went to sleep, he in his room, and she in his son’s bedroom. He could not recall how much he or she had to drink, but it was not so much that C.P. had “blacked out”. The Accused testified that C.P. did not say anything to him or suggest to him that he had sexually assault her. To the contrary, things continued on as per normal, including that C.P. had her daughter over to visit on two occasions, once on the weekend of March 10 th to 11 th , and then on the weekend of the 16 th to the 18 th .

C.P.’s daughter played with his son, they visited a restaurant, and went to a

petting zoo. [35] On March 18th or 19th, there was a hockey banquet that the Accused attended. C.P. did not go with the Accused but asked himto obtain some cocaine, and that when she got paid her unemployment insurance she would pay him back. The Accused stated heconsumed some alcohol at the banquet and after the banquet took a taxi home. He stated he returned home around 2 a.m. Although hehad been drinking, the Accused stated his memory was not affected. [36] C.P. was awake watching a television show. She wanted the Accused to watch TV with her, so they watched the show for acouple of hours.

They ingested cocaine, and watched the show. The Accused stated he also had a drink. The Accused described C.P. asgetting “pretty drunk”. After watching the show, the Accused stated he wanted to go to sleep, however C.P. wanted more cocaine. Theyboth finished the cocaine. The Accused stated he waited for the cocaine to wear off, and then he wanted to go to sleep. C.P. wantedmore, but there was none left. C.P. started to get angry. She started to drink some vodka, but the Accused stated he did not want her todrink the vodka because he wanted to save it for another time.

He stated this made C.P. really angry and she started screaming for more“coke” and vodka. She hit him in the face, which resulted in a black eye. This made him angry and he started yelling back at her. Theargument turned physical. She kept trying to hit him, and he was pushing her off. The argument caused the landlord to text him, andthen call him. This was about 7 a.m. in the morning. The time was confirmed with a copy of a screen shot of a text from the landlord tothe Accused that was entered into evidence.

The Accused stated that the loud noise had happened too many times and C.P. would haveto leave. [37] The Accused stated he conveyed this message to C.P. and it was then that she calmed downed. He went to sleep for a couple ofhours, and when he awoke C.P. was still there. He told her again that she had to move out and he would contact the police if she did notleave. At that point C.P. threatened that she would tell the police he had sexually assaulted her. The Accused stated because she was notleaving, he decided to leave the apartment and went to his mother’s house. He stayed there for a couple of days.

He went back to theapartment a few days later and C.P.’s belongings were still there. He left again, and then when he returned a second time, after anothercouple of days, he packed C.P.’s belongings and texted her to come pick them up, and he left again. [38] The Accused testified that soon after C.P. moved out, he was on his way to work and a colleague told him that C.P. had postedon social media that the Accused had raped her. The colleague showed the Accused the posting. The Accused testified he was shocked.

He told the colleague that he and C.P. had a fight and that C.P. was lying. [39] The Accused denied sexually assaulting C.P. at any time. [40] Under cross-examination, the Accused agreed that in 2018 he had a “drinking problem” and was consuming alcohol one tothree times a week at licensed establishments. On any given occasion he might consume eight to ten beer. He also agreed he had aproblem with abuse of substances such as cocaine and would “use” any time he went to a “bar”.

He agreed that he and C.P. used cocainethe night they went out drinking early in March when the sexual assault was alleged to have occurred. [41] The Accused denied having consumed so much that his memory was not intact. He also repeated that C.P. was not sointoxicated that she “blacked” out. [42] When asked about C.P. moving in with him, the Accused responded that she had told him she had nowhere to go. He did notknow why she was not able to go live with other family members. [43] When asked about the second incident, the Accused stated that it was not regular for the two to have had a physical fight asoccurred.

The Accused stated he was surprised that C.P. had become so upset. The Accused was adamant that C.P. had said nothing tohim about him sexually assaulting her until he told her she had to leave. THE STANDARD OF PROOF IN A CRIMINAL TRIAL [44] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40).

It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences. On the criminal standard, a court must be satisfied well beyondthis level of certainty. [45] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also becognizant of the instruction in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

This approach is to ensure that in a casewhere there may be competing versions as to what occurred, the court does not fall into the trap of simply choosing between the twocontested versions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework ofW.(D.). [46] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [47] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [48] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine whether the evidence supports beyond a reasonable doubt that the offences occurred. [49] In this case, there is conflicting evidence between C.P. and the Accused as to what happened.

Because of this conflict, thecredibility and reliability of the witnesses is important in assessing the evidence. It is helpful to review what the law says about theassessment of the credibility of witnesses and their evidence before discussing the evidence that I accept.

The assessment of credibility [50] The assessment of the credibility of a witness, as well as the veracity of a witness’ testimony, is not a formulaic process; but theculmination of a number of considerations such as, but not limited to, how the witness responded to questions. Were they argumentative,evasive or forthright? How was their recall? What was their opportunity to observe the event, and were there inconsistencies in theirevidence standing alone, or in relation to the other evidence called?

In assessing the witnesses, the Supreme Court of Canada in R. c.Gagnon, 2006 SCC 17, at paragraph 20, stated: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [51] Our Court of Appeal in R. v. K.P., 2019, NLCA 37, at paragraphs 42 and 47, in referring to their previous decision of R. v.

Best,2016 NLCA 10, reaffirmed that the trier of fact may accept all, some or none of the evidence of a witness. [52] In R. v. S.O., 2019 NLCA 42, at paragraph 16, Hoegg, J.A, speaking for a unanimous court, stated that the assessment ofcredibility of the witness is the “province” of trial judges, and “many factors inform the result”. At paragraph 17, Hoegg, J.A. statedfurther: This Court addressed the issue in Stassis v.

Amicus Bank, 2014 NLCA 38 , 356 Nfld. & P.E.I.R. 80, wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions … …The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial judge with a divining insight into the hearts and minds of the witnesses… [53] As stated by McLachlin, C.J. in R. v.

M. (R.E.), 2008 SCC 51, at paragraph 49, “assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization”. I also keep in mind that witnesses may have differingperceptions of the same event. THE POSITION OF THE PARTIES [54] The Crown acknowledges that C.P.’s recall was not strong, but submits that her account was credible and believable. TheCrown submits the description of the physical altercation between she and the Accused suggests that something more than a denial ofcocaine was the problem.

The Crown submits that if the Court accepts C.P.’s testimony, the Accused should be found guilty. [55] Counsel for the Accused asserts that C.P. was not a credible witness and her testimony is not reliable. C.P. was argumentativeand defensive and refused to respond to simple questions. She was contradicted in her evidence and her recall was poor. On the otherhand the Accused was straight forward and his evidence is reasonable. Applying W(.D.), the Court is entitled to acquit on the basis ofbelieving his evidence and the Accused’s evidence should be believed.

Even if the Court is not prepared to acquit on this basis, theCourt should be left not only with a reasonable doubt by the evidence of the Accused, but by the evidence of C.P. ANALYSIS [56] The Accused testified in a forthright manner. He was calm, matter of fact, and consistent. He was not argumentative butresponsive to questions. He did not embellish or exaggerate his answers. For the most

part I find his testimony credible and reliable. Iam circumspect however as to his assertion that on the first occasion the two went drinking that C.P. was not so intoxicated that sheblacked out. I found C.P.’s description of her perceptions as to her level of intoxications believable. [57] However, C.P. was a reluctant and argumentative witness; particularly on cross-examination. She often did not respond toquestions until prompted by the Court and abruptly left the courtroom at one point. She often answered a question with another questionor did not respond at all.

She interrupted counsel, and had to be told several times to listen and answer the question. [58] Some latitude must be permitted a witness having to testify in public to intimate and difficult events, such as in this case. Onecannot be surprised that a witness may be reluctant. But in these circumstances, C.P.’s unresponsiveness to questioning and herargumentativeness at times amounted to sarcasm and hostility. This aspect of her demeanor makes it difficult to assess the veracity of hertestimony (see for example - R. v. Moradi, 2016 ONCJ 842). [59] C.P. also minimized her evidence at times.

For example, although she was candid that she had a problem with alcohol andcocaine, her testimony was that it was because of the Accused that she would use cocaine. It was he who would obtain cocaine and thatshe did not request it. On this point, I found the Accused’s evidence more probable: that both of them used cocaine, and that when hehad the money he would buy it, and when she had the money she would buy it. [60] The text messages entered between C.P. and the Accused from March 19th support that she was amenable to the Accusedacquiring cocaine on her behalf.

They show her interest by her inquiry about whether the Accused was bringing her “gifts”. C.P. agreedthe reference to “gifts” in the text message could have been a reference to cocaine.

[ 61 ] I take no issue with her testimony that the text messages do not necessarily reflect the entirety of conversations that may have occurred between the two on the subject. It also cannot be understated the extent to which one must exercise caution in interpreting text messages. People often speak in short hand, and there may be other aspects of a conversation that have specific meaning to the persons conversing by text.

Even if this text was an excerpt of a larger conversation, the portion tendered supports that C.P. was happy to confirm with the Accused that he was bringing cocaine home with him. [ 62 ] The tone of the conversations in the text messages is also problematic when measured against C.P.’s account of her relationship with the Accused after the first alleged assault. There is no particular way in which C.P. ought to have behaved after the first alleged assault, and as discussed above, I am circumspect about drawing too much from text messages.

However, the tenor of the text messages by both sides was jovial and friendly, suggesting that the friendship was on solid ground. Again, keeping in mind that there is no particular way in which C.P. was required to behave after being assaulted, the casual and friendly tenor of the text messages are not easily reconciled with aspects of C.P.’s evidence, for example that she felt she needed to sleep with a knife under her pillow. [ 63 ] C.P.’s evidence was also at times confusing.

In particular, her account of the second incident as to how she came to sleep on the Accused’s bedroom floor, after having argued with the Accused, was difficult to understand and follow. I also note that it was not until cross-examination that she provided further details of what happened that evening. She had said nothing about ingesting cocaine, and left out many details in her direct examination.

In contrast, I found the Accused’s account of what happened that evening plausible, and in accordance with the preponderance of probabilities as discussed by Hoegg, J.A. in S.O . [ 64 ] While the above aspects of her testimony are troubling, on their own, or taken individually, they might not prevent the Court from accepting her testimony as credible or reliable. Witnesses can be reluctant but give reliable evidence. Witnesses can minimize details of events but still provide testimony in other areas that is reliable.

And in particular, with sexual assaults, one has to be careful about drawing inferences that because a complainant behaved in a particular way, the behavior is consistent with not having been assaulted. [ 65 ] Further, whether the Accused or she was the instigator in obtaining cocaine, or that she continued her friendship with the Accused after the first alleged assault, these are peripheral matters that do not touch on the evidence directly related to the assaults. [ 66 ] However, C.P.’s recall of what happened in relation to the assaults themselves is problematic. C.P.’s recall of the events was very poor.

This is understandable given her admitted level of intoxication. She could provide few details of either incident, describing mostly that she has no memory of what happened and had “blacked out”. [ 67 ] Taking her testimony at its strongest, C.P.’s account of what happened was an event that “felt as if it were a dream”. C.P. testified she did not actually wake up during either incident. She could not be more definitive than to say that at the time the events were happening, she thought she was in a dream.

It was only after the fact that she believed the events happened because she woke to find herself in the Accused’s bed (of which the Accused denies occurred). [ 68 ] I accept that C.P. may believe she was assaulted by the Accused. I also accept that she was very intoxicated and if sexual contact occurred she would not have had the capacity to consent. But her testimony reveals that, because of her level of intoxication, she really does not know what happened. It was only afterwards she believed the sexual contacts actually happened and were not dreams.

That the Accused’s actions were at best “a dream”, is not reliable evidence upon which a court can find facts. [ 69 ] In my view, when I consider C.P.’s poor recall, taken with the other problematic (albeit less so) features of her evidence as discussed earlier, the cumulative effect of these considerations is that her testimony is not reliable. [ 70 ] While I do not believe the Accused’s testimony in its entirety, I am left with a reasonable doubt not only by his evidence, but by all the evidence.

On either view, I am left with a reasonable doubt that the Accused committed the actus reus of the offence of sexual assault. DISPOSITION [ 71 ] The Accused is acquitted of both counts, and the charges are dismissed. [ 72 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice