R v RDG, 2023 ABCJ 130

In the Alberta Court of Justice Citation: R v RDG, 2023 ABCJ 130 Date: 20230609 Docket: 210215794P1 Registry: Calgary Between: His Majesty the King - and - RDG Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.31 . By Court Order, any information that could identify the victim and/or witness must not be disclosed in the course of these proceedings. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim and/or witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice J.D. Williams INTRODUCTION

[1] RDG (the accused) is charged with a single count of sexual assault occurring on the 11th day of July 2020. [2] The complainant is CD (the complainant), an acquaintance of the accused at the time. [3] The issue to be resolved is whether the Crown has proven the actus reus of sexual assault beyond a reasonable doubt. [4] The complainant testified that she was asleep when the accused penetrated her vagina with his penis and she awoke to himhaving intercourse with her.

The accused testified that he asked the complainant if she wanted to “continue smashing” and he onlypenetrated her vagina after she responded “yes.” [5] Part of the evidence presented in this case included evidence of prior sexual activity, which I admitted in oral reasons givenon January 18, 2023. [6] Those reasons addressed both an argument made by defence that the prior sexual activity evidence should not be subject to as 276 application as it was part of “the sexual activity that forms the subject matter of the charge” which is explicitly excluded by s 276,R v McKnight, 2022 ABCA 251 at para 231, and a

section 276 application brought by the defence in the alternative should their initialargument fail. [7] I found that the consensual sexual intercourse occurring earlier the morning of July 11, 2020, was distinct from the activityconstituting the allegation and, therefore, that the s 276 analysis was appropriate. [8] Further, I found that limited cross examination was appropriate, but only on three specific details:

a) the fact that the accused and complainant engaged in consensual sex the same morning as the alleged criminal act, excluding any ofthe details of that activity;

b) the circumstances that resulted in the sexual activity ending; and

c) the discussion the parties had at the conclusion of that sexual activity. [9] These details were, in my view, essential to give context to the evidence provided by the accused but only for the specificpurpose of rebutting the negative inference that his act of entering the roommate’s bedroom after she left for work and prior to the actwhich constitutes the criminal allegation was a predatory one. [10] Further, the fact the complainant and the accused had sexual intercourse shortly before the alleged sexual assault providesclarity as it relates to the accused’s evidence that he asked if she wanted to “continue smashing.” This question only makes sense if it isin evidence that they were in fact “smashing” a short time prior to the alleged sexual assault. [11] While general context evidence is not an appropriate basis for the admission of previous sexual activity, there is legalauthority for the admission of specific context evidence where it can be connected specifically to a fact in issue as found in theconcurring judgment of Moldaver J in R. v.

Goldfinch, 2019 SCC 38 , [2019] 3 SCR 3 at paragraph 123. [12] The admission of this specific evidence for context is appropriate to ensure a fair assessment of the accused’s credibility. Without this context his entrance into the roommate’s bedroom that morning seems opportunistic at best and predatory at worst, and thequestion he testified that he asked the complainant to ensure he had consent for the sexual activity does not make sense which, couldeasily result in an adverse credibility finding and an unfair trial. EVIDENCE SN [13] SN was the roommate of the complainant at the time of the alleged incident.

She was also friends with the accused but endedthat friendship when the allegation was made. [14] She testified that she and the complainant began getting ready for a party around 7 p.m. on July 10, 2020, and walked over tothe party at their friend’s place shortly thereafter. [15] SN left the party at approximately 1 a.m., asking the complainant if she wanted to leave as well but the complainant wanted tostay. SN left early because she had to work the next day. While she did consume alcohol, SN ensured she did not get intoxicated at theparty.

She went to bed after she arrived home and was asleep at approximately 2 a.m. [16] At 4 a.m. she was awoken when the complainant, the accused and one of their other friends, K, arrived at the apartment. Shelooked out one of the windows when she was woken up and noticed it was still dark outside. SN got up and spoke to everyone and notedthat everyone was talking loudly and in her view were intoxicated. [17] SN went back to bed and ultimately fell back to sleep. The next time she awoke the complainant and accused were standing inthe doorway of her bedroom.

They had a brief conversation, the content of which she cannot recall, but she does specifically recall thecomplainant telling her the accused was “being creepy.” She does not have specifics on the time when this occurred. [18] SN got up for work at 7:30 a.m. and her brother picked her up at 8 a.m. When she left the apartment, the complainant wassleeping in her bed and was snoring. The accused looked like he was sleeping on their couch.

[ 19 ] SN received a phone call from the complainant at work at approximately 9:45 a.m. that day. The complainant was crying and told her about the alleged act, although she does not recall the details of the call. The Complainant [ 20 ] The complainant confirmed that she and SN attended a party at K and J’s home on July 10, 2020, arriving at approximately 8 p.m. [ 21 ] At the party she consumed alcohol, including vodka-mixed drinks with water, Monster Energy Drink or Red Bull, and wine.

She estimates she had three glasses of wine, each six to nine ounces and three vodka mixed drinks which she believes were doubles. She also did cocaine at the party and recalls leaving at approximately 1 a.m. when she, the accused and K were asked to leave by K and J [TT Jan. 19, P. 40; line 21]. [ 22 ] The complainant described her physical state when leaving K and J’s as very intoxicated. She indicated she had “blurred vision, troubles speaking and trouble walking straight.” [TT Jan. 19, P. 40; line 18] She walked back to her residence with the accused and K.

The walk only took about five minutes as it was a couple blocks from her apartment. [ 23 ] After they arrived at her apartment, they all sat on the couch, and she poured and served each of them two shots of vodka which she estimates are 1.5 ounces each.

They each consumed these shots over the course of an hour while visiting. [ 24 ] The complainant suggested they go for a walk in Fish Creek Park as she was “worried we were being too loud for SN who was sleeping.” [TT Jan. 19, P. 43; line 38] [ 25 ] After walking the pathways near Mallard Point for a period of time, she, K and the accused go back to her apartment where they sat on the couch for awhile and then all went into her bedroom. The complainant turned on Apple TV and the three of them chatted.

She did not recall consuming any more alcohol but described herself as still being “very intoxicated.” [TT Jan. 19, P. 46; line 6] [ 26 ] Shortly after going into the complainant’s bedroom, K got up and left the apartment. At this point it was the early morning hours as there was light coming in the complainant’s bedroom window. [ 27 ] The complainant and accused then began having consensual sexual intercourse, which ended when she slipped forward while on top of him and hit her head on the headboard.

She got up, wrapped a sheet around herself, went to SN’s room and got in bed with SN where she fell asleep. [ 28 ] The complainant did not remember any discussion between her and the accused after the intercourse ended nor any discussion with SN. [ 29 ] She awoke the next morning in SN’s bed to the accused penetrating her vagina with his penis. She was on her stomach and his hands were on the back of her arms. She cannot recall how her face was positioned but recalled feeling more hungover than intoxicated at that point. She testified she felt, “[a]wful.

Hungover, groggy, like dazed, dizzy, a little sick, and scared.” [TT Jan. 19, P. 52; line 12] [ 30 ] The complainant testified her head was to one of the sides not directly into the pillow and she doesn’t know what her limbs were doing or where his legs were. The accused ejaculated on her back, and she did not remember if he said anything to her when he did this. [ 31 ] She wrapped herself in a blanket and left the room. She then told the accused, “I think you should leave.” [TT Jan 19, P. 54; line 31].

The accused looked taken aback and conveyed a message along the lines of, “I didn’t think that was what happened or something of the sort.” [ 32 ] The accused left and the complainant immediately called SN to tell her what happened. The complainant called the police two or three weeks later. The Accused [ 33 ] The accused acknowledged the consensual sex in the early morning hours of July 11, 2020, which ended by the complainant hitting her head on the headboard.

At this stage, the accused said she got out of bed to go to SN’s bedroom to sleep and he testified, “I asked her if she wanted to, like, keep going in a little bit, and she said, sure.” [TT Jan 20, P. 19; line 15]. He followed her down the hall and past SN’s room where she went inside, and he went to the couch to try to rest. [ 34 ] He estimated that the complainant went to SN’s room at around 7 a.m. [ 35 ] SN left for work around 8 a.m. and he went into her bedroom where the complainant still was. He pushed open the door which he said wasn’t fully closed.

He could not see the complainant’s face as her back was to him and he laid down beside her and simultaneously asked if she, “wanted to keep smashing” [TT Jan 20, P. 22; line 10] She responded, “yes.” [ 36 ] They began having vaginal intercourse while they each lay on their right side, but that was awkward, so they moved with her going onto her stomach and he was behind her. The sex lasted 5 or 10 minutes at the most and he ejaculated on her back. [ 37 ] She wrapped herself in a blanket and asked him to leave and he was, “pretty surprised at that.” [TT Jan 20, P. 25; line 11].

[38] The accused testified: “[i]t's like something just, like, kind of snapped, and she didn't seem, like, pleased, and I was kind oftaken back.

It's not something I had ever experienced before.” [TT Jan 20, P. 25; line 14] COUNSEL ARGUMENT [39] Counsel for defence argues that his client’s evidence is both credible and reliable and should be accepted by this Court,resulting in an acquittal. [40] Counsel for defence further argues that, in the alternative, even if I do not accept the accused’s evidence it should raise areasonable doubt regarding the evidence presented in the crown’s case, as there are both credibility and reliability issues with thecomplainant’s evidence. [41] The defence also argues that the complainant is not a credible witness and has motive to lie about the events in question,namely that she decided the next morning that she regretted having participated in the sexual activity and felt guilty for cheating on herboyfriend. [42] It is further submitted that the complainant’s evidence is not reliable.

The defence argues she is incorrect on the timeline ofevents, there is inconsistency between her two police statements and the testimony she gave in court, and her evidence even contradictsthat of the other crown witness, SN, who is the complainant’s friend and clearly sides with her in this proceeding. [43] The crown argues that I should be very suspect of the accused’s evidence, pointing to inconsistencies between his originalaffidavit on the

section 276 application and his ultimate evidence at trial. [44] The crown concedes that the complainant’s timeline of events is incorrect but argues that the remainder of her evidence isboth credible and reliable. [45] The crown submits that the complainant’s conduct after the alleged events is consistent with that of a person who has beensexually assaulted, recognizing there is no specific way any person who has been victimized should behave. [46] Finally, the crown submits that the motive to lie attributed to the complainant by defence is “extremely thin” considering thatthe complainant told her boyfriend of both sexual acts, consensual and non-consensual.

LAW and ANALYSIS [47] The issue of whether the crown has proven the actus reus of sexual assault beyond a reasonable doubt in this case hinges onmy credibility and reliability assessment of the three witnesses. [48] These assessments will inform the R v W(D), (SCC), [1991] 1 SCR 742, analysis that I am required toperform to address the contradictory versions of events as testified to by the complainant and accused, and to answer the ultimatequestion of whether the crown has proven the elements of the offence beyond a reasonable doubt. [49] The framework in W(D), supra, was designed to protect against a determination of criminal liability based solely on apreference for the evidence of one witness over another. [50] Refinements to the original three steps in W(D), supra, are provided in subsequent cases including R v Ay, (1994) (BC CA), 93 CCC (3d) 456 (BCCA), R v CWH, (BCCA) and R v Ryon, 2019 ABCA 36. [51] Simply put, the W(

D) framework, as modified by the above cases, applies to all exculpatory evidence, not just the evidenceprovided by the accused. If after careful consideration of all the evidence I believe the evidence of the accused, the accused’s evidenceraises a reasonable doubt or I am unable to decide who to believe I must acquit.

Only if the evidence I accept proves each of the elementsof the criminal charge before me beyond a reasonable doubt may I convict (Ryon, supra at para 51). [52] Proof beyond a reasonable doubt is a necessarily high standard and “probably guilty or likely guilty” is not sufficient R. v.Lifchus, (SCC), [1997] 3 SCR 320. [53] Determining the evidence that I accept directly relates to my credibility and reliability assessment of the witnesses and theevidence they swear to. [54] In doing this assessment it is imperative that I remember that credibility and reliability are distinct principles as noted byJustice Watt in R v.

H(C), 2009 ONCA 56 at paragraph 41: Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately: i. observe; ii. recall; and iii. recount events and issues in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

Credibility, on the other hand, is not a proxy for reliability: i.e.: a credible witness may give unreliable evidence. [ 55 ] Assessing witness testimony is a nuanced exercise described eloquently in R v. KHT , 2017 ABQB 753 at paragraph 10 , Assessing a witnesses’ testimony requires a judge to consider whether the witness can properly interpret what they have seen, heard or experienced, whether they have a good memory, an ability to communicate, and whether there are any reasons for them to offer inaccurate information.

Inconsistencies and a lack of detail will also be considered by a judge in assessing credibility. A trial judge will also assess the reliability of evidence based on its plausibility and whether it comports with probability. A trial judge can accept some, none or all of a witnesses’ testimony and acceptance of testimony only means that a trier of fact will give the evidence some weight when assessing the issue in question. A judge need not conclude that a witness is a liar or is unreliable in order to reject or place little weight on their testimony.

Witness Credibility [ 56 ] I find SN to be a credible witness. [ 57 ] She testified in a very blunt manner. [ 58 ] She was a friend of each the complainant and the accused at the time of the alleged incident but has cut off all contact with the accused after the complainant called her on July 11, 2020, making the allegation. [ 59 ] She clearly was supportive of the complainant, but I did not find this to impact her evidence. She was doing her best to tell the truth regarding the events.

Had she only been trying to support the complainant’s version of the events, her evidence and that of the complainant would have been more similar than they ultimately were. [ 60 ] I also find the accused to be credible. [ 61 ] He was clearly nervous when giving his evidence and I note specifically that at one point when he was asked if he got a towel for the complainant after he ejaculated on her back he quickly answered, “yes” and then quickly stepped back from that testimony saying he didn’t know.

This resulted in his counsel telling him he didn’t want him to guess but only testify based on memory. [ 62 ] The reason I say he was credible relates to things he didn’t say as much as the things he did.

Had he wanted to exaggerate his evidence in a manner which would assist his case there were some very easy things that he could have added to make himself look better. [ 63 ] One example relates to his evidence about whether he could see the complainant’s face when he entered the bedroom on the morning of July 11, 2020, immediately prior to the sexual intercourse which is the subject of the criminal allegation. [ 64 ] The accused was very much aware of the fact that the issue of whether the complainant consented to the sexual activity turns on whether she was asleep and additional details could well have assisted his case, but he did not exaggerate.

Instead, he conceded that he could not see the complainant’s face or whether her eyes were open and relied only on his evidence of the discussion he said they had which consisted of him asking, “do you want to continue smashing” and her responding “yes”. [ 65 ] While he indicated he could not see her face when he entered the room so could not speak to whether she was asleep at that stage he does provide several details of what he could see including that she was laying on her side, her back and butt were uncovered by her blanket and these parts of her body were naked.

The cover only covered her from the knee down. (Jan 20, Pg 42) [ 66 ] He acknowledged that climbing into bed with her is an intimate act and that he wanted to have sex with her.

All of this he says is why he explicitly asked for consent. [ 67 ] None of this evidence makes the accused look good yet he did not shy away from any of these details, he acknowledged each of them but was unwavering on that he sought consent by asking her if she wanted to “continue smashing” and she responded “yes”. [ 68 ] Finally, the complainant’s credibility is more difficult to assess. [ 69 ] She was polite when addressing counsel and the court, and I did not find her to exaggerate her testimony but there were areas where it came clear she was not completely honest with the police and then through extension with the court. [ 70 ] One example of this arose when she was cross examined about telling the officer in her July interview that she was at a “family gathering” on July 10, 2020.

She acknowledged having told the officer this explaining under oath that it was like, “a family of friends” (Jan 19, Pg 70 Line 35) but conceded that K and J, the couple who hosted the party were people she had never met before that evening.

She could easily have simply explained that she was embarrassed when talking to the officer about the event because there was alcohol and cocaine but instead explained by suggesting it was a “family of friends” under oath. [ 71 ] Counsel for the accused argues that the complainant was motivated to lie about not consenting in this case because at the time in question she had a boyfriend and after the alleged events she felt guilty for having had consensual sex with the accused. [ 72 ] There is evidence before me that the complainant had a boyfriend at the time, and that her original statement to police was made while she was in the boyfriend’s residence, but this detail in my view assists little in the analysis. [ 73 ] The complainant denies lying about her memory of the allegation and testified that she told her boyfriend about both the consensual and non-consensual acts that occurred the morning of June 11, 2020.

I accept her evidence on this point. [ 74 ] Had I found that the complainant's relationship with her boyfriend was a motivation for her to lie about not having consented

to the second act of sexual intercourse it would have impacted whether the case was proven beyond a reasonable doubt. Thecomplainant's lack of motivation to lie for this specific reason does little for the analysis of her evidence otherwise. Just because she didnot intentionally lie about consenting to the sexual activity with the accused does not mean by extension that her evidence is true orsufficiently reliable.

Absence of a proven motive to lie does not mean that the complainant did not have such a motive, or that they arenecessarily telling the truth (R v KML, 2022 ABKB 710 , 2022 ABQB 710 at para 54. [75] The accused is not required to demonstrate that the complainant has a motive to lie or explain why the complainant has madethe allegation against him. To require him to do so would reverse the onus. R v. Gerrard, 2022 SCC 13 at para 4.

Witness Reliability [76] I find the evidence of SN and the accused to be reliable but have concerns about the reliability of the complainant’s evidence.These concerns relate to gaps in her memory while testifying at trial regarding specific conversations which she appeared to recall whenspeaking to police, and my inability to reconcile the evidence she provided about her level of intoxication. [77] I will begin by addressing the reliability of SN’s evidence as I rely on it in assessing the evidence of both the accused andcomplainant. [78] SN’s evidence is of great assistance to me because it was logical, coherent and detailed.

I also know that on the night inquestion she consumed considerably less alcohol than the other two witnesses and went home and to bed early. All of these factors lendto her evidence reliability. [79] Assessing the reliability of the accused’s evidence through a lens of the evidence provided by SN, I find that SN’s evidencecorroborates his in several respects. [80] First with respect to the timeline of events, the accused testified that he did not arrive at the party until later in the evening ashe came after work which put him there around 11:30 p.m. or 12:00 a.m. The accused said he saw SN there when he arrived.

This isconsistent with her evidence that she left after midnight. [81] While the accused did not know specifically when he, the complainant and K left the party to walk to the complainant’sapartment, SN’s evidence that they arrived at 4 a.m. is consistent with the accused’s evidence that when he, the complainant and K laterwalked to Fish Creek Park it was day light. He specifically stated that when they took this walk “the sun was rising. Like, it wasn’t dusk.Like, you could see fine.” (Jan 20, line 37, Pg 15). He said that in July the sun rise was around 5:30 a.m.

This would meanapproximately one and a half hours passed between when the arrived at the apartment and when they left for Fish Creek Park. GivenSN’s evidence that they arrived at 4 a.m., and the evidence of their activities after their arrival, including sitting on the couch visiting anddrinking two, one- and one-half ounce shooters of vodka each, this seems to be a logical assessment of time. [82] Second, the accused testified that after the first sexual intercourse with the complainant ended, she wrapped herself in a toweland left the room.

He followed the complainant out of her room as she walked to SN’s room and travelled past SN’s doorway on hisway to the couch. SN also testified that the accused was with the complainant when the complainant came to sleep in her room, but SNexpanded on that saying they spoke at this time and that the accused wanted to come into her room too. [83] Finally, SN’s evidence corroborates the accused’s evidence that he was trying to sleep on the couch when SN left for work ataround 8 a.m.

SN testified that she saw him there sleeping on the couch when she left. [84] The complainant’s evidence when viewed through the lens of SN’s evidence, however, appears to be less reliable. [85] SN’s evidence contradicts the complainant’s as it relates to when the complainant, the accused and K arrived back at theirapartment after the party. SN testified they arrived at around 4 a.m. and the complainant estimates 1 a.m.

I accept SN’s evidence on thispoint. [86] Also, the complainant testified that she had a clear memory of going into SN’s room after leaving the accused in her bedroomand she did not recall any conversation between SN and herself at this time. [87] This evidence is contradicted by SN’s evidence that they had a conversation while the complainant stood in her bedroomdoorway and after the door was closed. [88] In considering the reliability of the complainant and the accused, SN’s evidence, while of some assistance, is only part of thereliability assessment. [89] The crown argues that the evidence of the accused “should be viewed with caution” and is not reliable. [90] The crown points to the fact that the original sworn affidavit of the accused completed for the s 276 application did notmention the consensual sexual intercourse ending when the complainant hit her head on the headboard, but instead suggests the sexualintercourse ended because the complainant and the accused were tired.

This is inconsistent with the accused’s evidence at trial. [91] I agree the accused did not note the complainant hitting her head in the affidavit prepared for the s 276 application.

However,the accused did provide viva voce evidence at the s 276 application that the complainant hit her head on something which resulted in theend of the consensual sexual intercourse, which is consistent with his evidence at trial. [92] The lack of this detail in his affidavit does not, in my view, negatively impact the reliability of his evidence at trial. [93] Having reviewed all of the evidence I find that the accused’s memory of the events is quite clear and I find his evidence to be

reliable. [ 94 ] The defence argues that the memories of the complainant are not reliable and points to several inconsistencies between her evidence at trial and her statements to police. [ 95 ] The defence points to the fact that the complainant testified that she had a clear memory of several distinct timeframes on the evening of July 10, 2020, and morning of July 11, 2020, but it appeared on cross-examination that these memories were not particularly clear. [ 96 ] For instance, the complainant testified that she had a clear memory after bumping her head on the headboard but then did not recall whether she said anything to the accused, or he said anything to her prior to her leaving the room. [ 97 ] On cross examination, defence counsel provided the complainant a copy of her July interview with police and her evidence changed from not having a memory of a discussion with the accused after the initial consensual intercourse to a concession that and she “didn’t know” if she and the accused discussed continuing to have sex later. [ 98 ] It is clear from the transcript that while speaking to police she recalled a discussion between herself and the accused at the end of the consensual intercourse but by the time of trial had no independent memory of that discussion. [ 99 ] I find that she and the accused did have a conversation about continuing to have sexual intercourse later that morning and this was the basis upon which the accused felt comfortable entering into SN’s bedroom after she left for work. [ 100 ] This finding of fact has no direct impact on the issue of consent.

As I made clear in my s. 276 decision, there is in law no means through which advance consent may be given as noted in R v. Barton , 2019 SCC 33 at para 99 , Broad advance consent” refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefined scope (see J.A., at paras. 44-48).

As summarized in J.A., the definition of “consent” under s. 273.1(1) “suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind” and “this Court has also interpreted this provision as requiring the complainant to consent to the activity ‘at the time it occur[s]’” (para. 34, citing Ewanchuk, at para. 26).

Thus, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. [ 101 ] The assessment of the complainant’s memory of this discussion is only relevant to my analysis of the overall reliability of her evidence. [ 102 ] The complainant also testified that she clearly recalled going to SN’s room but could not recall if they had a discussion upon her arrival, as I noted earlier in this judgment.

I accept SN’s evidence that they did in fact have a conversation and the complainant simply no longer remembers it. [ 103 ] I appreciate that this lack of memory may be attributed to the alcohol the complainant consumed on the night in question.

However, the complainant’s evidence on this point is also contradictory, in my view. [ 104 ] She described herself as very intoxicated when she left the party to the point that she was “struggling to walk straight.” But when the crown asked if she had difficulty walking home she said, “not particularly.” I took this evidence to mean that while she had to concentrate on walking straight after the party, she could still walk but doing so was not comfortable. [ 105 ] A few questions later in her evidence she testified that when she, the accused and K arrived at her apartment she took it upon herself to pour two one and a half ounce shooters of straight vodka for each of them.

They consumed three ounces each in an hour at which point the complainant said she was concerned about keeping her roommate up so she suggested a walk in Fish Creek Park. [ 106 ] If the complainant was so intoxicated that she was struggling to walk straight leaving the party, it seems unlikely that consuming a further three ounces of straight vodka would have left her wanting to go for a walk on the trails in the park. I may have been able to accept this evidence had she been able to provide some detail about the nature of this walk, where they went or how long it lasted.

She had no memory of any of these details but when it was suggested to her that in fact the purpose of the walk was to take the accused to the walkway which he regularly used to walk home so he could leave for the evening she rejected that premise. [ 107 ] Finally, during cross examination the complainant was presented with a portion of her August interview with police where she is discussing returning from the walk in Fish Creek Park and says, Then we walked back to my house. Came back in. I think we sat on the couch again, had another shooter.

Maybe we put on some music. [ 108 ] This statement to police is inconsistent with her evidence at trial in two ways. She testified at trial that she didn’t think they consumed any more alcohol after they returned from the park and her stated purpose for wanting to take that walk was that she was worried about disturbing SN who was sleeping. [ 109 ] The accused’s evidence that they walked to Fish Creek Park because he had decided to leave and his route home was directly through the Park is more logical on the whole of the evidence.

I find as a fact that this was the reason for initially attending the Park, but the accused changed his mind and returned to the complainant’s apartment with her and K when she invited him to do so. [ 110 ] All of these memory issues cause me to have concern about the reliability of the complainant’s memory as to events in the early morning hours of July 11, 2020. [ 111 ] The crown urges me to look at the conduct of the complainant after the intercourse which constitutes the sexual assault

allegation. [112] The crown submits that the complainant’s conduct after the fact, including asking the accused to leave, calling SN, and beingemotionally upset, is consistent with her version of events and lends reliability to her memory of these events. [113] The difficulty I have with this submission is that I cannot view the complainant’s conduct in isolation and, in my view, herconduct after the fact is no more consistent with her version than the accused’s conduct is consistent with his. [114] If I accept the accused asked for and was given consent to have sexual intercourse, it is quite reasonable that he would look, asthe complainant said, “taken aback” when she asked him to leave afterwards and that he would ask if he had done anything wrong out ofconfusion as he thought he had explicit consent for the sexual intercourse. [115] I cannot make a decision in this, or any other criminal case based on a preference for one person’s evidence over that ofanother.

The crown has the onus and the only question I must answer is have they proven the elements beyond a reasonable doubt. [116] The actus reus of sexual assault comprises three elements: there must be touching, the contact must be of a sexual nature andthere must be an absence of consent. R v GF, 2021 SCC 20 at para 25). [117] The absence of consent contemplated at the actus reus stage relates specifically to the state of mind of the complainant (R vBarton, 2019 SCC 33 at para 90). [118] A finding of fact is required on this issue.

If I accept the evidence of the complainant that she was asleep, and as such incapableof consenting, then this is sufficient evidence to prove lack of consent at the actus reus stage beyond a reasonable doubt R. v.

Barton,2019 SCC 33 , [2019] 2 SCR 579 at para 89. [119] Given the evidence in this case there is no need to move on to the mens rea analysis because if I accept the accused’s evidencethat he had explicit verbal consent from the complainant to “continue smashing,” or if his evidence raises a reasonable doubt as to herevidence that she was asleep at the time when the sexual intercourse began, then the crown has not proven beyond a reasonable doubtthat there was “no consent” at the actus reus stage. [120] On the other hand, if I accept the evidence of the complainant that she was sleeping, the crown has proven the actus reusbeyond a reasonable doubt.

In that case I must also find that the accused had the necessary mens rea. If the complainant was asleep shewas incapable of consenting, which the accused would have known, or was reckless or willfully blind to, when he intentionally engagedin the sexual intercourse. [121] While this conclusion may seem so straightforward that it does not require comment the Supreme Court saw fit to make theprinciple clear in R. v. J.A., 2011 SCC 28 , [2011] 2 SCR 440 at paragraph 3.

I conclude that the Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide therequisite consent. Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexualexploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. [122] In the present case, the accused testified that he could not see the complainant’s face when he entered into the bedroom.

If Ireject his evidence that they had the discussion he testified to, he was clearly willfully blind as to whether or not she consented to thesexual intercourse. [123] In order for the crown to prove the actus reas of sexual assault beyond a reasonable doubt I must accept the evidence of thecomplainant that she was sleeping, and the accused penetrated her while she was asleep, and must not have a reasonable doubt that thecomplainant did not otherwise consent to the sexual intercourse. [124] In cross examination she completely rejected the premise that this discussion occurred which I presume is why there was noargument before me respecting her level of consciousness and if it was sufficient.

She testified to being groggy and feeling hungoverwhen she awoke but by then in her evidence he was already having sexual intercourse with her so level of consciousness is irrelevant. Her evidence is clear she was unconscious when the intercourse began and the discussion the accused testifies to did not happen. [125] The evidence of the accused was that he asked if complainant wanted to “continue smashing” and that she responded in theaffirmative.

This evidence, considered with all of the other things I have noted in this analysis, raises a reasonable doubt in my mind as itrelates to the complainant’s evidence that she did not consent to the sexual intercourse. Therefore, the crown has not proven the elementsof the actus reus beyond a reasonable doubt. As the crown has not proven the actus reus beyond a reasonable doubt, there is no need toconsider the mens rea component of the offence. CONCLUSION For the above reasons, I find that the Crown has not met their burden of proof and I am acquitting the accused of a single count of sexualassault.

Dated at the City of Calgary, Alberta this 9th day of June, 2023

J.D. Williams A Justice of the Alberta Court of Justice Appearances: Diana Piper for the Crown Timothy J. Dunlap for the Defence