R. v. Oliver, 2023 NLSC 81

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Oliver , 2023 NLSC 81 Date : June 6, 2023 Docket : 202101G6764 HIS Majesty The king v. James Oliver Restricted Publication: Pursuant to

section 486.4(1) of the Criminal Code and Order of the presiding trial judge, no one shall publish, broadcast, or transmit in any matter information that could identify the person described in this Judgment as the Complainant. Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 20-23, March 15, April 28, and May 26, 2023

Summary: The Court tried the Accused on charges of assault and sexual assault. The Complainant testified the Accused pushed and forced her onto a bed and then violently sexually assaulted her. The Accused testified he did not push or force the Complainant, and the Complainant initiated the intimate contact with him that led to consensual sex. The dispositive issue turned on the Complainant’s lack of consent and whether the Crown established proof of the actus reus of the offences beyond a reasonable doubt. The Crown also raised whether Defence counsel violated the Rule in Browne v.

Dunn when cross- examining the Complainant. The Court held the Crown failed to meet the burden of proof and acquitted the Accused of both offences, and found no violation of the Rule in Browne v. Dunn .

Appearances: Kellie A. Cullihall Appearing on behalf of the Crown Daniel J. Vavasour Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: Browne v. Dunn, 1893 CanLII 65 (FOREP), [1894] 6 R. 67 (H.L); R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742; R. v. Seaboyer (SCC), [1991] 2 S.C.R. 577; R. v. Barton, 2019 SCC 33; R. v. Giroux (2006), (ON CA), 207 C.C.C. (3d) 512, 210 O.A.C. 50; R. v. Verney (1993), (ON CA), 87 C.C.C. (3d) 363,67 O.A.C. 279; R. v. Henderson, (ON CA), 1999 120 O.A.C. 99, 44 O.R. (3d) 628; R. v. Johnson, 2010 ONCA 646;R. v. Martin, 2013 ONSC 7011; R. v. G.F., 2021 SCC 20; R. v.

Ewanchuk, 1999 SCC 711; R v Bileski, 2022 SKCA 150; R. v. C.L., 2022NLCA 53; R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.); R. v. Roth, 2020 BCCA240; R. v. P.H., 2022 NLCA 37; R. v. Spicer, 2023 ONCA 232 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 TEXTS CONSIDERED: Lisa Dufraimont, Current Complications in the Law on Myths and Stereotypes, online: (2021) 99 CanadianBar Review 3 <https://canlii.ca/t/tst3>, 2021 CanLIIDocs 13421 REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] Only the Complainant and the Accused know what happened between them in a bedroom downstairs at her cousin’s house. The Complainant testified the Accused grabbed and pushed her onto the bed and forced his penis into her vagina.

The Accused testifiedthe Complainant initiated the intimate touching and they had consensual sex. [2] The Accused, James Oliver is charged with two counts: Count 1 THAT on or about the 3rd day of February 2020, at or near Logy Bay-Middle Cove-Outer Cove, in the Province of Newfoundland andLabrador, did commit a sexual assault on N.H., thereby committing an offence contrary to

section 271 of the Criminal Code. Count 2 THAT on or about the 3rd day of February 2020, at or near Log Bay-Middle Cove-Outer Cove, in the Province of Newfoundland andLabrador, did unlawfully commit an assault upon N.H., thereby committing an offence contrary to

section 266 of the Criminal Code. [3] The evidence requires that I consider what started out as an acknowledged fabrication on the Complainant’s part on where andhow she was sexually assaulted. The Accused and Complainant first met each other on a weekend at her cousin’s house. Her cousin, hercousin’s boyfriend, the Accused, and at times another friend of the Complainant (who did not give evidence) were present in the house. [4] Overriding my task in assessing the credibility and reliability of the Complainant’s testimony is a vulnerable and traumatizedComplainant.

She has faced domestic abuse and injuries from an ex-boyfriend. She has had to endure a lifetime of chronic pain fromsignificant spinal injuries, multiple surgeries, and a recent hip replacement. She requires high dosages of medication for painmanagement. [5] The police quickly identified the Accused as the target of their investigation, when the Complainant initially reported theassailant had raped her behind a gas station.

[ 6 ] The Crown has the burden to establish the essential elements of the offences charged beyond a reasonable doubt. In these reasons, I have the duty to clearly articulate and explain whether the Crown has satisfied the burden of proof on the evidence before the Court. Issues [ 7 ] The dispositive issue is whether the Crown has proven the actus reus of the offences - this is, the Complainant’s lack of consent to any touching of her by the Accused. [ 8 ] A preliminary issue I will address is whether Defence counsel breached the rule in Browne v. Dunn , 1893 CanLII 65 (FOREP) , [1894] 6 R. 67 (H.

L) and, if so, the remedial effect of any breach. This evidentiary issue arose during Defence counsel’s direct examination of the Accused. The Crown objected to certain aspects of the Accused’s testimony that contradicted the Complainant’s testimony. The Crown complained that Defence counsel did not give the Complainant an opportunity to respond to the specifics of the contradictory evidence during her cross-examination. [ 9 ] I allowed the Accused to give his evidence on the objected testimony and indicated I would determine whether the rule in Browne v.

Dunn had been breached, and the effect of any alleged breach in my reasons. The FACTUAL background Evidence on Essential Components of the Offences [ 10 ] For the purpose of the narrative, I will start with the Complainant’s evidence on the alleged assault and sexual activity in question (“hereinafter referred to as “the Incident”).

The Complainant’s Evidence on the Incident [ 11 ] The Complainant testified sometime after midnight on Sunday night, February 2, 2020, that she, Richard Kennedy and Angela Piercey (at times I use their first names as the Complainant did in her evidence) left the Bella Vista bar around midnight. When they got back to her cousin Angela’s house, the Accused (the Complainant referred to him as “James” and “Jimmy”) arrived there shortly after.

Her plan was to stay at Angela’s for the night downstairs in the basement on the couch. [ 12 ] Back at Angela’s house, now early Monday morning on the 3rd, she and the Accused were downstairs in a bedroom putting up a shelf. She was sitting on edge of the bed. The shelf was at the other end of the bed where he was sitting. She stated, “We were just talking and it happened.” [ 13 ] Her evidence of the Incident on direct was he grabbed the top of her chest and shoulders with his hands and pulled her down to the bed. She said, “We are not going there.” She cannot remember him saying anything.

It is “just a big blur” to her. She got up and he pushed her back down. “I got a boyfriend. You are not touching me,” she told him. [ 14 ] She got up and went to the door. He pushed her back down to the bed again. She was on her back. He had his hands on her shoulders and got on top of her. She recalls, “I was resisting.” She repeated, it is a “big blur.” [ 15 ] He got on top of her with his penis out. She has no recollection of how that happened. She did not see his penis initially. He put his hands on her ribs. She could not move or breathe. He pulled her pants down. She does not know how.

He forced his penis into her vagina. [ 16 ] She again repeated, “I can’t recall what was happening. I was in shock – like a blur.” [ 17 ] He got up and left the room. She closed the bedroom door and in her words, “like an idiot, I cleaned up.” She fixed the bedding and put the shelf back where it was supposed to be. She grabbed some paper towel and cleaned herself. She put the paper towel in the bedroom wastebasket after wiping herself. She stated, “I was wet and he came inside me.” [ 18 ] She opened the bedroom door slowly and ran upstairs to Richard and Angela’s bedroom.

The Accused’s Evidence of the Incident [ 19 ] The Accused stated that after trying unsuccessfully to get a taxi, he went downstairs to the bedroom situated to the left of the stairs. He lay on top of the comforter on the bed with his head on the pillow. The new wardrobe shelving unit that he, Richard, Angela, and the Complainant had been putting together Sunday afternoon, he testified, was in the bedroom to the right of the stairs. [ 20 ] Prior to going downstairs, he told the Complainant he was going “to relax a bit” because he had to walk home.

After 10–15 minutes, the Complainant came down to the bedroom and sat on the side of the bed. They were talking. She lay down next to him with her head on one pillow and his head on the other. [ 21 ] He stated, “We were messing and fooling around – kissing and flirting with each other.” She took off her clothes and he took off his clothes. She had jeans on and a flannel blouse. She had no underwear or bra. They had “sex in multiple positions for 15–20 minutes.” He ejaculated in her vagina. [ 22 ] He confirmed no words were spoken immediately before they had sex.

He acknowledged on cross-examination that the Complainant never did express any words consenting to sex. The only conversation after sex, he stated was “She said she would be up in a couple of minutes.” [ 23 ] The Complainant got up and went out of the bedroom into the bedroom with the wardrobe. He said, “She wasn’t upset, mad, or crying” before leaving the bedroom. He got up, put his jogging pants back on, and went upstairs to have a cigarette at the kitchen

table. She came up and into the kitchen a few minutes later. [ 24 ] I will deal briefly with the evidence leading up to the Incident before addressing the conflicting evidence following the Incident. The Evidence Leading Up To the Incident [ 25 ] The Complainant went to her cousin’s house on a Saturday afternoon the weekend of the Incident.

She went there because she and her boyfriend at the time were “kind of under each other’s feet.” She brought over a couple of bags of her laundry to do. [ 26 ] The Complainant testified that the Accused was at the house when she got there on Saturday afternoon along with Richard and Angela. She had not met the Accused previously. The Accused testified that he was not at the house Saturday afternoon and never went there until after midnight into the early hours of Sunday. Ms. Piercey corroborated the Accused’s evidence that he was not there Saturday afternoon, but arrived early Sunday morning. Mr.

Kennedy testified that the Accused was there on Saturday. [ 27 ] The discrepancy in the memories of when the Accused arrived at the house is not material to my determination of the credibility or reliability of any of the witnesses. [ 28 ] The Complainant spent Saturday afternoon having “a beer” and up and down the stairs doing laundry until her friend, Madison arrived. She got a ride back to her apartment at Torbay Estates with Madison. [ 29 ] Ms. Piercey stated the Complainant contacted her while she and Mr. Kennedy were at the Bella Vista bar on Saturday night. Ms.

Piercey invited the Complainant to join them at the Bella Vista because she and her former boyfriend were “fighting again” and she “needed to get out of there.” The Complainant, Ms. Piercey and Mr. Kennedy left the Bella Vista at closing time (after midnight and now early Sunday morning). The Accused was not with them. [ 30 ] When they got back to the house, the Accused joined them. Madison came at some point and joined them. They were socializing, drinking beer and “White Russians.” Madison left. The Complainant, the Accused, Mr. Kennedy and Ms.

Piercey spent the whole night up and around mid-day on Sunday they had brunch together at the house. After brunch they continued to have a few drinks, played some pool downstairs and put together the wardrobe. [ 31 ] Ms. Piercey was tired and decided to go to bed at around 7:00 p.m. on Sunday. Mr. Kennedy went to bed sometime later. The Complainant and the Accused made goulash together. They brought the goulash into Mr. Kennedy and Ms. Piercey’s bedroom where they were sleeping. Mr.

Kennedy expressed his displeasure to them for coming into the bedroom. [ 32 ] There are several significant inconsistencies in the evidence after the Complainant and the Accused brought the goulash into the bedroom. [ 33 ] For me to resolve the serious conflicts in the evidence following the Incident requires a full appreciation of the personal connections, and any animosity that Ms. Piercey and Mr. Kennedy might have for either the Accused or the Complainant. The Connection between Ms. Piercey and Mr. Kennedy with the Complainant and the Accused [ 34 ] Ms.

Piercey testified that she had known the Complainant as a child and they had just reconnected six months before the Incident. Ms. Piercey knew the Accused through Mr. Kennedy. They hung out a few times with the Accused and his brother, and the Accused and his brother had done some snow clearing for her. [ 35 ] Mr. Kennedy knew the Accused for many years through family connections and acknowledged on cross-examination that they were “good friends.” He had only met the Complainant on one or two occasions. The Crown confronted Mr. Kennedy on cross, putting it directly to him that he did not like the Complainant.

He replied, “I never said I never liked her.” He confirmed he did not like “the way she was getting on” and “her attitude.” Evidence Following the Incident At the House [ 36 ] The Complainant rushed into Ms. Piercey and Mr. Kennedy’s bedroom following the Incident. There are substantial conflicts in the evidence on what happens after this. [ 37 ] The Complainant stated she told Mr. Kennedy that the Accused had sexually assaulted her, and she asked him to get dressed and come out. She locked herself in the bathroom until Mr. Kennedy came out of the bedroom. [ 38 ] Mr.

Kennedy testified that the Complainant never said the Accused assaulted or sexually assaulted her. He stated she was “yelling and bawling” at the Accused for taking her Percocets. She wanted the Accused to take off all his clothes to search him. Mr. Kennedy said, “No, he is not,” and he searched the Accused finding no Percocets on him. Mr. Kennedy asked the Accused to leave, and “he went off crying actually.” The Complainant was in the bedroom with Ms. Piercey when Mr. Kennedy was seeing the Accused off. Unbeknownst to either Mr. Kennedy or Ms. Piercey, the Accused had left his cellphone at the house. [ 39 ] Ms.

Piercey confirmed she was awoken from her “dead sleep” when the Complainant came into the bedroom “accusing Jimmy of taking her pain medication.” The Complainant was blaming herself saying, “I’m sorry” and indicating Richard would be mad at her for “disrespecting me in my house.” She told the Complainant “to calm down” and “Richard will get to the bottom of it.” Ms. Piercey stayed in the bedroom with the Complainant “for a bit” while Mr. Kennedy was with the Accused. Ms. Piercey did not see the Accused leave the house. [ 40 ] Mr. Kennedy went to get cigarettes at the 24-hour Irving and Ms.

Piercey continued to chat with the Complainant.

[ 41 ] Ms. Piercey did not observe any blood or injuries on the Complainant. She stated that the Complainant “never” said the words “assault” or “sexual assault” to her before she left the house. The Complainant’s face was flush and red. She was crying and rubbing her face. [ 42 ] When Mr. Kennedy returned, he went to bed and Ms. Piercey stayed up to have “a smoke” and talk with the Complainant. She did not want the Complainant to leave the house after the Incident. She was concerned for the Complainant’s safety in going back to her apartment with her former boyfriend there.

She made up the couch for her to stay. [ 43 ] The Complainant insisted on leaving. She needed money for a taxi and Mr. Kennedy gave her the money for the cab. The Complainant told Ms. Piercey she was going to her ex-husband’s “to be safe” and not going back to her apartment with her former boyfriend. Ms. Piercey walked her down the driveway “arm in arm,” and saw her into the taxi. [ 44 ] She told the Complainant to call or text when she got to her ex-husband’s. The Complainant left Ms. Piercey a voicemail message on her phone 15–20 minutes after leaving the house to indicate she was safe at her ex-husband’s.

She said, “Love you cousin.” Ms. Piercey played the voicemail message she received from the Complainant for the investigating police officer. [ 45 ] The Complainant’s version on why and how she left the house is entirely different from both Ms. Piercey and Mr. Kennedy’s accounts. The Complainant testified, Mr. Kennedy threatened her by telling her: “I just lost a customer because of you. If you bring any trouble to my door, you are going to be sorry.” She stated, “Richard booted me out of the house.” [ 46 ] On cross-examination, she reiterated, “Richard said, ‘get out. You got to go’ and he closed the door.

I never went out. I was forced out.” [ 47 ] She reported to the police and medical examiners that the sexual assault happened somewhere else because she “was petrified with what Richard said.” [ 48 ] Ms. Piercey stated, “Richard never threatened” the Complainant at any point, and he did not force her out of the house. Ms. Piercey also stated the Complainant did not fall on her steps, and she did not observe her fall while walking to the taxi. [ 49 ] The Complainant testified Mr. Kennedy had a bag of cocaine, and she observed Mr.

Kennedy and the Accused “smoking it in a glass thing” after she came back from the Bella Vista that night. The Accused and Mr. Kennedy vehemently denied using cocaine. Ms.

Piercey stated she had no knowledge of cocaine use and would not permit cocaine in her house. [ 50 ] During her cross-examination the Complainant acknowledged, “I do cocaine once in a blue moon.” She did not mention purchasing cocaine in her direct evidence, but on cross she stated that she bought $100 of cocaine “down there” on Saturday. [ 51 ] The Complainant testified she cut her hand and injured her legs from falling on the icy stairs and snow-covered driveway on her way down the lane to get the taxi. She had blood on her face from wiping her face with her hands.

She acknowledged in cross- examination that she did not mention in any of her statements to the police or to the medical examiners that she had some injuries and cuts caused by her slipping and falling. She stated, “They didn’t ask. It just came back to me.” [ 52 ] After Ms. Piercey got back into bed, she heard a phone ringing several times. She retrieved the Accused’s phone from the living room and answered it. The former boyfriend was calling looking for the Accused. When he mentioned to Ms. Piercey that the Accused had sexually assaulted the Complainant, Ms.

Piercey asked to speak to the Complainant. [ 53 ] The Complainant advised Ms. Piercey that they had called the police and they were going to say the assault happened at Ultramar on Elizabeth Avenue. Ms. Piercey told the Complainant: “If this is really true, I don’t want to be left out of it and I want to help if it took place at my home.” They sent Ms. Piercey pictures of the Complainant’s face showing redness and arms with marks (Exhibit N.H. #1). At the Hospital [ 54 ] The Complainant arrived at St. Clare’s Emergency in an ambulance at 4:50 a.m. on Monday, February 3. The police were there to meet her.

Tracy Gidge, a certified Sexual Assault Nurse Examiner (“SANE”), conducted a sexual assault examination on the Complainant. Another nurse and the Complainant’s former boyfriend were present during the examination. [ 55 ] Nurse Gidge reported the Complainant was shaking, tense, fidgety, crying, tearful, and agitated. Her physical condition appeared “disheveled” with her clothing intact. [ 56 ] Nurse Gidge did a physical examination, including the use of an alternate light source for detecting bruising, and swapped for evidence collection.

She took a vaginal swab and a swab around the mouth because the Complainant indicated the Accused “kissed my face.” She labeled all the evidence and sealed it in a locked refrigerator. The Complainant left the hospital with the police and her former boyfriend. [ 57 ] Nurse Gidge confirmed that the report of the assault provided by the Complainant was short on details. The Complainant was unable to remember details of the assault. The Complainant was unsure if ejaculation occurred.

She did not tell the nurses that she had injuries from falling, otherwise Nurse Gidge stated she would have included that in the report. [ 58 ] On cross-examination, Nurse Gidge confirmed there was nothing in her examination of the Complainant and the findings that is definitive of forced sex. The SANE report, she agreed, could be consistent with consensual sex. [ 59 ] She confirmed that they did not do fingernail swaps on the Complainant. She agreed that they should have swapped the fingernails.

It may have been a valuable investigative tool to obtain the assailant’s DNA, if the Complainant pinched and scratched the Accused.

The Police Investigation [60] Constable Dawe was the primary investigator. She conceded in cross-examination she made mistakes and the overall policeinvestigation could have been better. She acknowledged the witnesses interviewed, Ms. Piercey and Mr. Kennedy, contradicted theComplainant on the surrounding circumstances of the Incident.

The Complainant’s friend, who was with her at times that weekend,wanted nothing to do with the investigation and other potential witnesses, such as the taxi driver, could not be located. [61] The Complainant initially told the police she was the subject of a random violent sexual assault behind Ultramar at ElizabethAvenue and Torbay Road. The police identified the Accused as the suspect within two hours of the Incident. No member of the policetook any steps to locate or speak to the Accused until seven months after the Incident. Cst.

Dawe explained she was waiting for the DNAresults but admitted that was a mistake. [62] The DNA testing revealed a match with the Accused and the Complainant. The reports entered as Exhibits at trial concluded:the DNA profile of semen found on the crotch area of the Complainant’s jeans matched for both the Accused and Complainant, as didthe DNA profile obtained from the vaginal swab. [63] The Complainant told the police she was kicking, fighting, and grabbing the Accused during the assault, and may have rippedhis sweater and injured him by scratching his chest. [64] Cst.

Dawe agreed the police missed possible important physical evidence from the Accused, such as seeking to determinewhether he had scratches on his body and asking for the clothing he was wearing. She noted Mr. Oliver was very cooperative when thepolice executed the DNA warrant. Although the Accused had no obligation to say anything to the police or cooperate with theinvestigation, Cst. Dawe conceded the police missed potentially important corroborating physical evidence by not taking any steps toobtain the physical evidence. [65] Cst.

Dawe’s file notes reflect she intended to interview the Accused, but she could not explain why she did not follow up on theinterview of him. [66] She was not aware the SANE Nurse failed to take swabs of the Complainant’s fingernails. [67] Cst. Dawe further acknowledged she did not ask Mr. Kennedy if he threatened the Complainant and this was an importantquestion to have asked. She agreed with Defence counsel that it was an “important mistake” in the investigation. Neither did she askMs. Piercey whether Mr.

Kennedy threatened the Complainant. [68] She never sought a production order for the cellphone records of the Complainant or the Accused. She agreed that given theinconsistencies in the statements she had obtained, she could have taken that step. Cst Dawe did not secure threatening text messagesthat the Complainant received from her former boyfriend, and that Ms. Piercey stated the Complainant had shown to her. [69] Cst. Dawe did not obtain a recording of the voicemail message the Complainant left for Ms. Piercey. [70] Cst.

Dawe made a note in her investigation file that she intended to submit the photos of the Complainant’s injuries to themedical examiner for an opinion on the timeline when the injuries likely occurred. She does not know why she did not proceed to dothat to corroborate the Complainant’s timeline on the alleged injuries from the Incident. [71] Cst. Dawe testified the Complainant was all over the place on the chronology of events going forward and back. She stated theComplainant was “scattered.” Yet, and most fundamentally, she did not get specific details from the Complainant as to how the sexualassault happened.

She conceded, “It is an important part of the investigation and I didn’t ask.” position of the parties The Accused’s Submissions [72] Mr. Vavasour for the Accused submits the evidence is deficient and the Crown has not, on a proper application of the law,proven the actus reus of the offences. He argues applying any of the three prongs of the W. (

D) test leads to no possible conclusion otherthan an acquittal: (R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742). [73] He points to two significant problems with the Crown’s case. [74] The first is the lack of credibility and reliability of the Complainant’s evidence. He describes the Complainant’s evidence aserratic, confusing, constantly evolving, and filled with multiple internal and external contradictions and inconsistencies. He submits theevidence has shown, and the Complainant admitted in her testimony, that she lied multiple times to many people and about manydifferent things.

She had a motive to fabricate - a belief that Mr. Oliver stole her pills and to avoid her threatening and physically abusiveex-boyfriend knowing she had consensual sex with Mr. Oliver. [75] Mr.

Vavasour identifies many credibility and reliability problems with the evidence of the Complainant, including: - She lied to the police and fabricated a “rape” behind Ultramar because she knew from talking to the Accused he lived in that area. - She continued the “rape story” in her report to the SANE Nurse with her former boyfriend present, and further lied that it wasunknown if ejaculation occurred, when she knew the Accused had ejaculated. - She misled both the police and SANE Nurse in reporting injuries sustained from the alleged assault.

When questioned first on cross,she testified they did not ask about how her injuries were caused. Later, on cross, the Complainant testified she told the police officersthat some of her injuries were not from the assault. The officers denied the Complainant having any conversation with them aboutinjuries caused other than by the assault.

- She told the SANE Nurse the Accused kissed her, but made no mention of kissing when describing the Incident in her testimony. - She stated in her police statement, she did not know Mr. Kennedy was selling cocaine. On cross-examination, she testified she bought cocaine from him and lied about it to the police. Her explanation for lying to the police was Mr. Kennedy threatened her, which he denied. - Her concern after the Incident, as supported by the evidence of the Accused, Mr. Kennedy, and Ms. Piercey, was her missing pills. She insisted on cross-examination that it was the, “least of my worries.

I just got raped and wanted to get out of the house.” Mr. Kennedy and Ms.

Piercey refuted other major aspects of what occurred after the Incident in the Complainant’s testimony. - She described “six times” in her testimony that events were a “big blur.” She did not provide any specific details of how the sexual assault happened in her police statements. [ 76 ] Defence counsel submits the Complainant’s demeanor also undermines her credibility, such as chuckling on a couple of occasions when questioned on cross. [ 77 ] I take no issue with her demeanor and place no reliance on the manner in which she testified in my credibility and reliability assessment of her evidence. [ 78 ] The second significant problem Defence counsel submits is an inadequate and improper police investigation that was a detriment to both parties.

The investigation failed to take steps and gather inculpatory or exculpatory evidence. The specifics of the police investigation that the Accused takes issue, I have already outlined. [ 79 ] Disclosure issues were also emblematic of the investigation. The Defence did not receive text messages between Cst. Dawe and the Complainant until shortly before the trial. Mr. Vavasour submits it is highly inappropriate that they were communicating by text messages, but even more troublesome that the text messages were not included in the investigative file.

In preparation for trial, Defence counsel reached out to Crown counsel inquiring about disclosure of the text messages. Crown counsel quickly retrieved most of the messages. [ 80 ] On cross-examination, Cst. Dawe agreed that at least one text message was missing from the disclosure and that the Complainant had substantive discussions with her about the investigation. There were discussions about potential witnesses, the DNA test, and rape kit results. In another text message, the Complainant told Cst.

Dawe “she thought of more detail that may impact things but just want[ed] to move forward.” Cst Dawe and the Complainant were at times using other phones and we do not know what, if any, other text messages the Complainant and Cst. Dawe exchanged. [ 81 ] Mr. Vavasour contends that Cst. Dawe demonstrated her inattentive approach to the investigation by failing to bring the entire file to Court when testifying, and to bring the Complainant’s glasses that the police seized as evidence from the house. The Crown asked Cst.

Dawe to bring the glasses secured in the RNC Property Room to Court when her examination continued the next day. The glasses had the arm broken off and were entered as an exhibit. Cst. Dawe testified she had not been aware the glasses were broken. The police did not photograph the glasses. Mr. Vavasour says this again speaks to the inattention and the sloppiness of the investigation. [ 82 ] Defence counsel highlights the police found no staining of blood anywhere in the bedroom to corroborate the Complainant’s testimony of injuries that the Accused is alleged to have caused to her. [ 83 ] Mr.

Vavasour submits the police failed to exercise other means to corroborate the Complainant’s evidence. They did not obtain a statement from the Complainant’s friend who was with her at the house. They waited five months to secure video surveillance from the Bella Vista, after the Bella Vista’s retention period for maintaining video surveillance had passed. [ 84 ] Mr. Vavasour points out Cst. Dawe did not attempt to reconcile the inconsistencies in the Complainant’s statements to her.

She did not probe why the Complainant in a telephone interview indicated reluctance to put some things on the record. [ 85 ] As for the Accused’s evidence, Mr. Vavasour submits the Court should accept his evidence under the first prong of W. (

D) because his testimony was unshaken, forthright, credible, and reliable. He had a good recollection of events and his timeline lined up with that of Ms. Piercey. Experienced Crown counsel thoroughly cross-examined him without being able to show any inconsistences in his evidence. Both Mr. Kennedy and Ms.

Piercey corroborated many aspects of the Accused’s evidence, including details of events after the Incident and the Complainant not having any visible injuries other than to her lip before she left the house. [ 86 ] In the final analysis, the Defence submits if the Court has a reasonable doubt based on the entirety of the evidence on the Complainant’s lack of consent, it must acquit. The Crown’s Submissions [ 87 ] In response to the Defence submissions, Ms. Cullihall for the Crown ably and concisely set out the Crown’s position.

I am required to give even treatment to the evidence and submissions, and I now intend to detail the Crown’s position. [ 88 ] The Crown submits the credible and reliable evidence of the Complainant, corroborated by other evidence, establishes beyond a reasonable doubt that the Accused pushed and forced the Complainant to the bed (the assault charge) and then violently sexually assaulted her. [ 89 ] The evidence of the Complainant and the Accused on what happened in the bedroom in early morning hours is diametrically opposed, as I described previously. There is no way to reconcile the two accounts.

The Complainant’s evidence is of violent forced sex, and the Accused’s evidence is of consensual sex that occurred in a different bedroom than the Complainant testified. [ 90 ] There was no great amount of detail provided by either party about the sex itself. Defence counsel spent considerable time

exploring with the Complainant that it took five probing police questions before she mentioned any details of the sex. Ms. Cullihallnotes that even when she was questioning the Complainant in direct, the Complainant had a difficult time talking about “penis” and “therape” and it is perfectly understandable that a traumatized victim would have difficulty talking about it. [91] The Crown contends there are both credibility and reliability concerns with the evidence of Mr. Kennedy. He had an agenda tohelp his friend. He did not believe anything happened that night between the Complainant and the Accused.

His evidence changedseveral times. He testified that he did not like the Complainant. [92] The reliability of both Mr. Kennedy and Ms. Piercey’s evidence is compromised, Ms. Cullihall submits. They had consumed alot of alcohol. Mr. Kennedy was also using marijuana. They were up all day and night on Saturday into Sunday evening before theywent to bed, when the Complainant woke them in the early hours of Monday. [93] Mr. Kennedy could not remember putting together a shelving unit, when everyone else testified they had.

I must consider Mr.Kennedy’s reliability when addressing conflicts in the evidence of what the Complainant told to him after the Incident, and considerwhether he forgot certain things or may not have heard the Complainant say what she did because she was talking very quickly. [94] When Defence counsel cross-examined the Complainant, she admitted to fabricating her initial statements to the police. Sheadmitted to purchasing cocaine from Mr. Kennedy. She did not need to admit her role in a criminal activity. This, the Crown contends,enhances her credibility. [95] Ms.

Piercey, the Crown states – “perhaps the most credible witness in the trial” - was asleep from 7:30 p.m. Sunday eveninguntil awoken. She could not have heard what the Complainant said to Mr. Kennedy, or what Mr. Kennedy said to the Complainantwhile out of the bedroom. Mr. Kennedy had ample opportunity to give some kind of threat to the Complainant without Ms. Piercey everknowing about it. [96] The Complainant’s primary focus after “the assault” was her missing pills. How someone reacts to an assault can be verydifferent.

I cannot infer she lied about her lack of consent because of the manner in which she reacted. [97] The Crown concedes that if I find Mr. Kennedy had not threatened the Complainant in some way, then the credibility of theComplainant on that evidentiary point becomes problematic. However, the Crown submits the Court must consider, when deciding thatpoint, the totality of the evidence in the context of someone who had just experienced a violent sexual assault. [98] The Complainant, Ms. Cullihall states, may have perceived that she told Mr. Kennedy and Ms. Piercey about the assault.

Herperception of the things she said after the assault may be inaccurate, rather than a deliberate falsity, because of the trauma of the violentsexual assault she experienced. The Complainant’s first response, when asked about what she told Ms. Piercey, was that she just wantedto leave. It is conceivable in the confusion of wanting to leave she may have forgotten what she said to Ms.

Piercey. [99] The Crown submits it is also conceivable that she mixed up details and her perception was again inaccurate of where she hadfallen, and what she believes she told the police about her injuries from falling. [100] The Crown relies on the physical corroborating evidence to support the Complainant’s testimony of the injuries she received fromfalling and injuries sustained in the assault. The photographs entered as exhibits of cuts and bruises on her hands and legs are consistentwith a fall.

The photographs of her nose and face are consistent with injuries that she testified resulted from the Accused breaking herglasses while sexually assaulting her. No one testified of her glasses being broken or seeing marks on her face before the Incident. Thepolice photographs show dried blood spots on the bridge of her nose. The photographs show a mark on her rib cage consistent with heraccount of the assault. [101] There were reddish marks on her jeans consistent with her testimony that she wiped her face and rubbed her hands in her jeans.

The Complainant acknowledged on cross that some of the blood on her jeans was from the cut on her hand sustained in falling. [102] Ms. Cullihall submits I must consider the Complainant’s denial of receiving threatening text messages from her former boyfriendthat Ms. Piercey testified to (but Ms. Piercey had not mentioned in her statement to the police), in the context of the Complainant’sabusive relationship.

She may not have remembered the texts, or they did not stand out to her because those kind of threats happen sofrequently in an abusive relationship. [103] The Crown reminds me that when assessing all of the evidence I can find the Complainant’s evidence of the assault believableand reliable, when considered in conjunction with the physical corroborating evidence, even though I may not find the Complainant’sevidence either reliable or credible on certain matters that happened after the fact. [104] The Crown relies on the landmark case of R. v.

Seaboyer (SCC), [1991] 2 S.C.R. 577, at para. 143, that “Sexualassault is not like any other crime.” Justice L’Heureux-Dubé’s influential and often-cited (dissenting in part) comments cataloguednumerous common mythical and discriminatory beliefs surrounding sexual assault, including the faulty notion (at para. 151.8) that “if awoman says she was raped, it must be because she consented to sex that she was not supposed to have.” [105] The Court must guard against the application of any inappropriate stereotypical beliefs: (Seaboyer, at paras. 165 and 166).

JusticeL’Heureux-Dubé further noted in Seaboyer (at para. 207), that the prevalence of stereotypical thinking about sexual assault raisesproblems for determining the relevance of evidence and finding facts. [106] The Crown also filed R. v. Barton, 2019 SCC 33, in which the Supreme Court of Canada more recently confirmed once again (atpara. 1) that, “eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as asociety.” [107] Ms.

Cullihall is quite right to remind the Court that I have the responsibility to ensure adjudication of the case is based solely onthe evidence and not on any myths and stereotypes. I will approach my assessment of the evidence and whether the Crown has met the

burden of proof with this foremost in my mind. analysis The Rule in Browne v. Dunn [108] I will begin my analysis with the preliminary issue of whether Defence counsel breached the rule in Browne v. Dunn, and theremedial effect of any alleged breach. [109] The long established rule in Browne v. Dunn is one of trial fairness to avoid the ambush of a witness.

If counsel is going tochallenge the credibility of a witness by calling other witnesses to give contradictory evidence about something, the cross-examiner mustgive the witness being cross-examined the chance to respond to the contradictory evidence. [110] I find Defence counsel did not breach the rule and ambush the Complainant in his cross-examination of her. Even if I were toaccept the Crown’s submissions that Defence counsel did not comply strictly with the rule, it has no residual effect on my findings, as Iwill explain. [111] Mr. Vavasour asserts there was no violation of the rule.

The Crown raised objection that Defence counsel did not give theComplainant the opportunity to address the specifics of the sexual activity that the Accused testified he had with her. The authoritiescited by Defence counsel do not require that he do so: R. v. Giroux (2006), (ON CA), 207 C.C.C. (3d) 512, 210O.A.C. 50, at paras. 45 and 46; R. v. Verney (1993), (ON CA), 87 C.C.C. (3d) 363, 67 O.A.C. 279, at paras. 27–29;R. v. Henderson, (ON CA), 1999 120 O.A.C. 99, 44 O.R. (3d) 628, at para. 19; and R. v. Johnson, 2010 ONCA 646,at para. 79. [112] The Crown relies on R. v.

Martin, 2013 ONSC 7011 (at paras. 14, 15 and 17) to argue that Defence counsel was compelled to putthe specifics to the Complainant of the markedly different version that the Accused testified to of the consensual sex initiated by theComplainant. Defence counsel is required to confront the Complainant on the central elements of the Crown’s case.

Since Defencecounsel did not confront the Complainant with the details of the consensual sex, the Crown submits this goes to the weight that I shouldgive the Accused’s testimony. [113] The Complainant testified she did not consent to any of the sexual activity in question. Mr. Vavasour submits, and I agree, thatthere would be no utility in cross-examining the Complainant on every detail of the Accused’s testimony on the sexual acts thatoccurred. Neither party sought to have the Complainant recalled.

The Crown concedes, if the Court permitted the Complainant’s recallfor questioning on the specifics of the sexual acts that the Accused testified to, she would simply deny she consented to each one of thesexual acts. There would be no meaningful purpose for putting the Complainant through the trauma of again reliving the Incident, andthe unnecessary intrusion to her dignity with further cross-examination. [114] Defence counsel is free to use his own judgment about how to cross-examine the Complainant. Lack of consent is the very issuein dispute in this trial. Mr.

Vavasour did not surprise and ambush the Complainant by having his client tell his side of the story of whathappened between them in the bedroom without putting every specific detail to her. [115] The Complainant gave a completely opposing version of the Incident than did the Accused. Defence counsel conducted athorough and fair cross-examination of the Complainant.

It would have served no purpose to put every detail of the Accused’s versionof the consensual sex to the Complainant simply to have her deny it. [116] Further, Defence counsel did not put to the Complainant that the sexual activity occurred in a different bedroom than the Accusedindicated. Whether the sexual activity happened in the bedroom to the right or left of the stairs down in the basement does not detractfrom the weight I will give to the Accused’s testimony. [117] I now turn to the dispositive issue of consent.

Elements of the Offences [118] A person commits an assault when, without the consent of that person, he applies force intentionally to that person: section265(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [119] There is no issue that the accused touched the Complainant in the bedroom. What the Accused denies is the forceful manner andnature of the touching described in the Complainant’s version, and that any touching was without her consent. [120] To establish the actus reus of sexual assault, the Crown has the burden to prove physical contact of an objectively sexual natureand that the Complainant did not consent to that contact, R. v. G.F., 2021 SCC 20, at para. 25.

The first component of the actus reus, thephysical contact (the sexual touching and intercourse), was admitted. The focus is entirely on the second component that thecomplainant did not consent. [121] For the Crown to establish the Accused’s guilt, the Court must be satisfied beyond a reasonable doubt that the Accused touchedthe Complainant without her consent.

If the totality of the evidence leaves a reasonable doubt on the Complainant’s evidence that shedid not consent to the touching, the Accused is entitled to an acquittal. [122] I must determine what was subjectively in the mind of the Complainant at the time of the sexual activity in question. What was inthe mind of the Complainant can only be known from her words and actions at the time. [123] Whether the Complainant subjectively consented in her mind at the relevant time is a question of fact.

I must assess her evidenceas to her state of mind at the time of the Incident, and determine the reliability and credibility of her evidence in light of all the evidence,including the Complainant’s “words or actions, before and during the Incident.” (R. v. Ewanchuk, 1999 SCC 711, at paras. 29 and 30).

[124] The focus for proving that the Complainant did not consent “is placed squarely on the complainant's state of mind, and theaccused's perception of that state of mind is irrelevant”: R. v. Barton, at para. 89. [125] The Accused’s own belief that the Complainant had consented is irrelevant to whether she had in fact consented: R v Bileski, 2022SKCA 150, at para. 23. The Burden of Proof [126] The fundamental principle I must apply is the burden of proof rests on the Crown. It is not a credibility contest on who is morebelievable.

The Court’s role is to determine whether the Crown has proven the offences beyond a reasonable doubt. Assessment of Credibility and Reliability [127] I cannot assess any of the evidence in isolation. I must carefully consider the evidence of the Complainant and the Accusedtogether with the totality of the evidence. [128] The Complainant can believe something to be true but that does not make it accurate and reliable. Further, I can have areasonable doubt on the accuracy and reliability of the Complainant’s subjective state of mind without having to conclude theComplainant in fact lied about her state of mind.

The Accused’s Credibility and Reliability [129] The Accused had a clear memory of events. He conceded aspects on cross-examination that did not go to assist his position onthe sexual assault charge. He admitted that he did not ask and the Complainant did not speak any words to verbalize her consent. [130] For the most part, I accept the Accused’s evidence. I accept his evidence that he did not forcefully grab or push the Complainantto the bed. On certain other aspects of his evidence, I do not know whether to believe him or not. Whether he used crack cocaine or not,I do not know.

Likewise, I am unsure whether I believe he told the Complainant he was going downstairs “to relax a bit” beforeintending to walk home. I am not sure I know in what bedroom the Incident happened. The parts of his testimony that I am unsure of donot diminish the credibility and reliability of his testimony. [131] The Crown specifically confronted the Accused on cross-examination with the suggestion that he had no discussion with theComplainant about the use of a condom prior to having sex, or any other discussion about sex, because he forced her against her will.

He replied, “That’s not so, that’s far from the truth.” I accept his evidence that he did not force the Complainant against her will to havesex. [132] His evidence was consistent throughout his testimony. During the Crown’s resolute cross-examination, he answered in aforthright and serious manner without being dismissive of probing questions.

There are no internal or external inconsistencies arisingfrom his testimony that give rise to any concern on acceptance of his testimony on the issue of consent. [133] The Accused’s own belief that the actions of the Complainant demonstrated she consented is by no means the end of the inquiry. I must still assess the Complainant’s credibility and reliability to determine whether the Crown has met the requisite burden. I must besatisfied beyond a reasonable doubt that I can accept the Complainant’s own belief that the Accused touched her without her consent.

No Reliance on Prior Sexual Activity [134] I cannot rely upon impermissible myths and stereotypes in the assessment of the Complainant’s credibility: R. v. C.L., 2022NLCA 53, at para. 20. [135] Mr. Kennedy at times during his testimony related comments or actions of the Complainant toward him and the Accused thatsuggested the Complainant was interested in engaging in sexual activity. I ruled in the course of Mr. Kennedy’s testimony that anyevidence of prior sexual activity on the part of the Complainant was inadmissible.

The Accused did not make an application undersection 276 of the Criminal Code for a determination on the admissibility of any evidence of prior sexual activity other than the sexualactivity in question. I cannot consider inadmissible evidence for any purpose, and I will not do so. The Complainant’s Credibility and Reliability [136] The only evidence on the unwanted touching of the Complainant by the Accused comes from the Complainant.

In assessing thecredibility and reliability of the Complainant’s evidence, it is critically important that I deal with any inconsistencies in theComplainant’s evidence and with that of the other evidence presented: R. v. C.H. (1999), (NL CA), 182 Nfld. &P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.), at para. 23. [137] I make four significant factual findings that seriously undermine the Complainant’s credibility and reliability, leaving me with areasonable doubt on the reliability of the Complainant’s evidence on the Incident and her subjective state of mind. [138] First, I do not believe the Complainant told Mr.

Kennedy and Ms. Piercey that she had been assaulted or sexually assaulted eventhough she was adamant in her testimony that she did. [139] Second, neither do I believe that she was threatened by Mr. Kennedy and forced out of the house. This seriously undermines herexplanation for initially fabricating where and how the Accused raped her. [140] Third, nor do I believe she sustained injuries by falling on Ms. Piercey’s steps or in her driveway lane. Ms.

Piercey’s credibletestimony squarely refuted this. [141] Fourth, I find the Complainant mislead the Police and SANE Nurse in identifying injuries resulting from the Incident. I accept

the evidence of the police officers that they would have documented this, if the Complainant told them that some of her injuries resulted from falling. I find the Complainant did not have any such discussion with the police, and her testimony that the police failed to document and record it is not credible. [ 142 ] The Complainant’s inaccurate perceptions as the Crown submits, and even lack of credibility as I have found, on these “after the fact matters” cannot invariably lead to the conclusion that the Complainant is being untruthful about the Incident.

However, the cumulative effect leaves me with a reasonable doubt on the reliability of the Complainant’s evidence on the Incident. [ 143 ] I will now explain further the rationale for my factual findings, and put my assessment of the Complainant’s credibility and reliability in the context of the relevant evidence and guiding law. Motive for Fabrication [ 144 ] Defence counsel asserts that the Complainant had a motive to lie by hiding from her former boyfriend that she had consensual sex with the Accused.

It is not impermissible to make such inference, if grounded in the evidence: (Lisa Dufraimont, Current Complications in the Law on Myths and Stereotypes , online: (2021) 99 Canadian Bar Review 3 < https://canlii.ca/t/tst3 >, 2021 CanLIIDocs 13421 , at pages 551-552, citing R. v. JC , 2021 ONCA 131 , at para. 75 ). However, the evidence does not permit the Court to draw the inference that the Complainant lied about having consensual sex to avoid detection by her ex-boyfriend. [ 145 ] I cannot speculate as to why the Complainant initially fabricated where and how the sexual assault happened.

She may well have had a legitimate reason for not wanting to say the sexual assault happened at her cousin’s house. [ 146 ] Her motive for fabrication does not itself undermine her credibility. What undermines her credibility is her testimony on her reason why she misled the police and medical examiners. The evidence of Mr. Kennedy and Ms. Piercey refutes the Complainant’s testimony on her motive for fabrication. Assessment of the Evidence of Mr. Kennedy and Ms. Piercey [ 147 ] I reject the Crown’s submission that Mr. Kennedy’s evidence is neither credible nor reliable, and that Ms.

Piercey’s testimony while credible is nevertheless unreliable. I find both Ms. Piercey and Mr. Kennedy to be credible and reliable witnesses on aspects of their evidence that differ with the Complainant. Their evidence on the significant matters that I have noted directly undermines the veracity and reliability of the Complainant’s testimony, and leaves me with a reasonable doubt on whether to rely on the Complainant’s evidence that the Accused violently sexually assaulted her. [ 148 ] Mr. Kennedy conceded he was experiencing some memory issues.

Despite that acknowledgment, I find his memory of events that weekend was generally good except for some details. I do not know whether I can accept everything he said as accurate. I accept he forgot some details like the wardrobe shelving unit everyone testified they were assembling. [ 149 ] I would have more concerns if he remembered every detail of that sleep-deprived weekend mixed with alcohol and cannabis use. I have no difficulty accepting the truth of his testimony on significant matters after the Incident that conflict with the Complainant’s evidence. [ 150 ] If, as the Crown submits, Mr.

Kennedy had an agenda to help his friend, I am satisfied Mr. Kennedy did not collude with the Accused or make any efforts to reconcile their evidence. Mr. Kennedy concluded his cross-examination with this statement: “I don’t think he touched that girl, as far as I know.” That does not fit with the Accused’s evidence that he had consensual sex with the Complainant at Ms. Piercey’s house. Of course, Mr. Kennedy does not know what took place between the Complainant and the Accused while they were alone downstairs, and it lends credibility to his testimony. [ 151 ] Ms.

Piercey came across as someone very concerned about wanting to tell the truth and not tailoring her evidence to favor the Accused. She was a good historian. She gave concise and direct answers. She was composed and measured in her answers on direct and cross-examination. When unsure about times and details, she candidly said so. The Crown acknowledges she is a credible witness. I accept all of her evidence without reservation. Impermissible to Infer How Victim of Sexual Assault will Act [ 152 ] The Complainant had no obligation to tell Mr. Kennedy or Ms. Piercey that she had been assaulted.

It is impermissible to infer that a victim of sexual assault will act immediately and in a certain way after an assault. [ 153 ] However, it is permissible and appropriate to assess the credibility of Complainant’s testimony in the context of other evidence about what transpired after the Incident. This is so even where the evidence involves the Complainant’s reaction to the alleged sexual assault: R. v. Roth , 2020 BCCA 240 , at para. 136 . [ 154 ] The Complainant’s evidence is that she went into Richard and Angela’s bedroom and told Richard, “Jimmy had sexually assaulted” her.

She also testified that before leaving the house that night she told Angela, “James sexually assaulted me and I just want to go home.” I accept the testimony of both Mr. Kennedy and Ms. Piercey that the Complainant before leaving the house made no mention of assault or sexual assault. [ 155 ] I do not find the Complainant’s explanation credible on why she initially fabricated where and how she was sexually assaulted. Trauma from sexual assault can most certainly cause a victim to have a “big blur” of the event.

I am still required to give careful scrutiny to the Complainant’s testimony, as I am of all of the evidence. When I consider her evidence with the testimony of Mr. Kennedy and Ms. Piercey, I cannot accept the evidence of the Complainant that she was forced to leave the house. Ms. Piercey offered her to stay after the Incident. She may have perceived she was threatened by Mr. Kennedy, but I accept Mr. Kennedy’s testimony that he did not threaten her and Mr. Kennedy did not force her to leave the house.

[ 156 ] I cannot accept the Complainant walked down the lane alone to get in the taxi cab. I believe Ms. Piercey’s evidence that she walked with the Complainant and saw her get in the taxi. Having not accepted the Complainant’s testimony on getting thrown out of the house and walking down the driveway alone, I do not know how she sustained the injuries. I am left with a reasonable doubt on whether any of the injuries to her person were inflicted by the Accused. [ 157 ] I also reject the Complainants’ testimony that her missing pills was the least of her concern after the Incident. The evidence of the Accused, Mr.

Kennedy, and Ms. Piercey, which I accept, established the missing pills was her only focus and concern after the Incident. [ 158 ] I am not making any assumption or critical assessment on how the Complainant was expected to react after a sexual assault – that would be an error of law and impermissible. My finding is based solely on the rejection of her categorical denial of not having any concern for her missing pills.

Other Inconsistencies and Concerns Raising a Reasonable Doubt [ 159 ] As pointed out and elaborated on in the Defence submissions, there are other inconsistencies that, when taken together, give rise to a reasonable doubt. [ 160 ] I do not accept the Complainant’s denial of threats she received from her former boyfriend that weekend. Ms. Piercey’s evidence supports the Complainant’s abusive relationship with the ex-boyfriend was the reason she went to Ms. Piercey’s on Saturday afternoon and returned there after the Bella Vista closed.

The Crown’s submission that she may simply have forgotten about the text massages, because threats in an abusive relationship are common, is not grounded in the evidence. I would be speculating to attribute the Complainant’s failure to remember to the frequency of threats received from her former boyfriend. The Crown tendered no evidence of this. [ 161 ] I accept Ms. Piercey’s evidence that the Complainant told Ms. Piercey that she wanted to get away from her “ex-boyfriend” because they were “arguing and “fighting” and he had “punched her in the face.” Both Ms. Piercey and Mr.

Kennedy observed the Complainant with a mark on her lip. The Complainant confirmed the mark on her lip was from her former boyfriend throwing a lighter at her. [ 162 ] Ms. Piercey stated that the Complainant had told her the ex-boyfriend had hit her in the past and beat up her apartment. The Complainant showed Ms.

Piercey a text message from the ex-boyfriend that was threatening to kill her cat, set her apartment on fire, and blow up her workplace. [ 163 ] I find that the Complainant’s former boyfriend was threatening her, and her denial of it raises a concern, when considered with other concerns I have identified, on whether I can rely on her testimony on the Incident. [ 164 ] The Complainant stated the Accused dislodged and broke her glasses in the bedroom during the assault. Ms.

Piercey testified that she loaned a pair of her reading glasses to the Complainant after the Incident, and they were looking for the Complainant’s missing glasses upstairs and not down in the bedroom. Mr. Kennedy, after the call from the ex-boyfriend, located the glasses in the bedroom downstairs, and Ms. Piercey put them in a bag with the Complainant’s laundry.

I do not know how the Complainant’s glasses were broken, and I am unsure whether to accept the Complainant’s testimony that the Accused broke her glasses and caused injuries to her face during the Incident. [ 165 ] The lack of details in all three of her police statements on the particulars of the sexual assault, compared to her detailed testimony of the Incident, is another concern in assessing reliability. She admitted her memory would have been fresher at that time than now. Yet the police statements lacked particulars and her timeline of events was vague.

I accept a victim of sexual assault can have trouble recalling specific details, as Nurse Gidge indicated in her testimony. Nevertheless, when I consider the entirety of the evidence, I am hesitant to rely on the Complainant’s testimony that detailed the particulars of the sexual assault, but her police statements were lacking in any such detail.

Consequences of the Inadequate Police Investigation [ 166 ] The police investigation failed both the Complainant and the Accused, and impaired the Crown’s case. [ 167 ] Coupled with the findings I have made on the unreliability of the Complainant’s evidence on the Incident, the shortcomings and inadequacies in the police investigation add further confirmation of the Crown’s inability to establish the elements of the offences beyond a reasonable doubt: R. v. P.H ., 2022 NLCA 37 , at para. 59 . I am satisfied the inadequacies go to rendering the Complainant’s evidence unreliable.

The fabricated story the Complainant initially told the police was a major red flag, as was the Complainant’s inability to identify the Accused in a police photograph lineup after spending several hours with him on that weekend. [ 168 ] Knowing this, the police ought to have taken reasonable steps to secure evidence in support of the Complainant’s evidence on lack of consent. A proper investigation, without the mistakes Cst.

Dawe acknowledged, may have ameliorated the Court’s concerns with the reliability of the Complainant’s evidence on the Incident. [ 169 ] Furthermore, I find the acknowledged failures in the police investigation hindered the Accused’s ability to answer to the Complainant’s accusations. The police failed in the early stages of the investigation to provide Mr. Oliver the opportunity to give his version.

He had the right to decline, but his cooperation would have changed the approach and direction of the investigation. [ 170 ] The police should have clarified with the Complainant her reason for fabricating her initial report of the sexual assault, and then interviewed others to corroborate her explanation. Interviews of Mr. Kennedy and Ms. Piercey would have contradicted the Complainant’s explanation, and raised early concerns on the truthfulness and accuracy of the Complainant’s statements. [ 171 ] A proper and more balanced investigation would have assisted the Accused in making full answer and defence.

It was incumbent

on the police to take the necessary and reasonable investigative steps to inquire into the vagueness and contradictions in the Complainant’s statements. [ 172 ] Finally and most importantly in my view, a police investigation free from all the shortcomings would have afforded a vulnerable and traumatized Complainant with the necessary feedback, support and guidance. The police ought to have realized the Complainant’s initial fabricated report was a cry for help necessitating a more thorough investigation. Disclosure Concerns [ 173 ] While the police failed to provide full and timely disclosure of Cst.

Dawe’s handwritten working notes and all text messages between her and the Complainant to the Crown for disclosure to the Defence, the disclosure failures did not impair trial fairness. The Crown produced the newly discovered documents to the Defence as soon as they were in the Crown’s possession. Defence counsel did not seek a postponement of the trial or seek to have the Complainant or police witnesses recalled because of the late disclosure.

Crown Has Not Meet the Burden of Proof [ 174 ] Ultimately, this case turns on the Crown’s failure to satisfy the Court on the burden of proof. [ 175 ] On the assault charge, I do not believe the Complainant that the Accused grabbed and pushed her onto the bed. I accept the Accused’s testimony that he did not grab and push the Complainant. [ 176 ] On the sexual assault charge, only the Complainant knows what was in her mind at the time of the Incident.

What she was thinking at time of the sexual activity can only be gleaned from her actions because admittedly no words were spoken between her and the Accused. [ 177 ] The adverse credibility findings that I have made on the Complainant’s evidence cause me to have a reasonable doubt on accepting the reliability of her evidence on the actus reus of the offence.

More specifically, I have a reasonable doubt on whether to accept the subjective belief of the Complainant on her lack of consent to the sexual activity in question. [ 178 ] It is the Court’s role in the adjudication of a sexual assault prosecution to apply the fundamental principle of reasonable doubt. As the Ontario Court of Appeal recently stated in R. v. Spicer , 2023 ONCA 232 (at para 12 ): “There is a difference between a finding of a lack of consent and a finding that there is a reasonable doubt about consent.

The difference is fundamental to the W. (D.) principle and the burden of proof that rests on the Crown.” Conclusion [ 179 ] For the reasons provided, I find the Crown has failed to establish the Accused’s guilt beyond a reasonable doubt on the charges of assault and sexual assault. [ 180 ] Mr. Oliver, I find you not guilty and acquit you of the charges. _____________________________ Glen L.C. Noel Justice