R v Hofley, 2022 ABKB 679

Court of King’s Bench of Alberta Citation: R v Hofley, 2022 ABKB 679 Date: 20221013 Docket: 210323937Q1 Registry: Drumheller Between: His Majesty the King Crown - and - Jeffrey Anthony Craig Hofley Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Reasons for Judgment of the Honourable Justice P.R. Jeffrey _______________________________________________________

[ 1 ] Jeffrey Hofley is accused of sexually assaulting his roommate on August 23, 2020. In this decision I refer to that roommate as the “Complainant”. The issues in this trial are consent, capacity to consent and mistaken belief in consent. [ 2 ] Mr. Hofley cannot be found guilty of the offence of sexual assault unless the Crown proves all four elements of it beyond a reasonable doubt. By “reasonable doubt” I do not mean a far fetched, imaginary, or frivolous doubt. I do not mean proof beyond any doubt. The Crown does not have to prove anything to an absolute certainty.

A reasonable doubt is not based on sympathy, emotion, speculation, or prejudice. It is based on reason and common sense. It is something more than “probably guilty”, lying much closer to “absolute certainty” than to “more probable than not.” [ 3 ] The four elements of the offence that the Crown must prove beyond a reasonable doubt are: i. that Mr. Hofley intentionally touched the Complainant, ii. that the touching was of a sexual nature, iii. that the sexual touching occurred without the Complainant’s consent, and iv. that Mr.

Hofley knew of, or was wilfully blind, or was reckless as to, the absence of the Complainant’s consent. [ 4 ] Only two of those four elements are in dispute in this case. Mr. Hofley admits the first two. He readily admits he had sex with the Complainant on the night of August 23, 2020. Therefore, there is no doubt he intentionally touched the Complainant and that the touching was of a sexual nature. [ 5 ] The focus of my deliberations has been on whether the Crown has proven beyond a reasonable doubt the third and fourth elements of the offence. Mr.

Hofley cooperated with the Police throughout and says the Complainant clearly communicated her consent because she first approached him, she came on to him, she invited their sexual contact, she invited him into her room, she told him to undress her, she actively and vocally encouraged he continue throughout intercourse, and she called an end to it, which he heeded. [ 6 ] He says that is a complete answer to both the 3 rd and 4 th elements.

He also says, in the alternative, that if I find the Crown has proven the absence of consent beyond a reasonable doubt, that the Crown still has not proven beyond a reasonable doubt that Mr. Hofley did not honestly believe that the Complainant had communicated her consent. [ 7 ] By way of background, Mr. Hofley and the Complainant are both single adults, at the time aged 31 and 27 respectively. They resided in the same two bedroom 4-plex rental unit in Drumheller, but only as roommates, nothing more. The kitchen and living room areas are on the upper floor of the unit, along with access to a balcony.

The two bedrooms and a bathroom are on the lower floor. Their bedrooms shared a common wall. [ 8 ] Mr. Hofley and the Complainant had been in a dating relationship previously but broke it off quite some time prior to August 2020 and lived in different cities. That changed at the beginning of August 2020. It was then that Mr. Hofley was brought to live in the Complainant’s unit in Drumheller. It appears that Mr. Hofley was living in Medicine Hat in the residence of the Complainant’s mother. The mother said that would not continue, and she sent or drove Mr.

Hofley to Drumheller to reside in her daughter’s 4-plex. [ 9 ] Both the Complainant and Mr. Hofley have personal challenges. The Complainant says she has a learning disability. She has difficulty with large words and with remembering things. Mr. Hofley says he suffers from a bi-polar disorder, which he said causes mood swings, that he hears voices all the time and that it is hard for him to have long sentences and conversations. I have endeavoured to factor this in as I weigh the evidence of each and the unique manners of each as they testified. [ 10 ] Mr.

Hofley’s and the Complainant’s evidence agrees on several points. They agree on their relationship history and that by the time of these events they were merely friends living in the same property. They agree on most of the events of the day prior to the Complainant going downstairs to her bedroom. They agree that the Complainant’s mother still helps the Complainant somewhat. The mother and the mother’s fiancé “Matthew” were staying in a “camper trailer” that was parked behind the 4-plex. [ 11 ] They agree that on August 23, 2020, the mother cooked a meal that all four adults shared.

The mother and her fiancé left the 4-plex sometime after that. Mr. Hofley and the Complainant remained. Both were drinking and separately engrossed in social media on their own cell phones. The Complainant was in the living room and Mr. Hofley primarily on the balcony. There was no interaction between them, other than Mr. Hofley offering to bring the Complainant another can of Palm Bay if he was mixing another of his spiced rum and Pepsi drinks. They both agree that the Complainant is affected by less alcohol than most other people. Mr.

Hofley reasoned that this was a function of her light weight. [ 12 ] Their evidence also aligns on their sex occurring in the Complainant’s bedroom, after she had first gone to bed. It aligns on the Complainant, prior to getting to the bedroom, being intoxicated to the point of stumbling and needing help down the stairs to her room. Their evidence aligns further that Mr. Hofley had intercourse with the Complainant, that the Complainant then remained in the bed until morning, and that the Complainant’s clothing lay on the floor beside the bed when she arose the following morning.

Both say that the Complainant professed to recall nothing of the intercourse the night prior. [ 13 ] Beyond those points of agreement, Mr. Hofley and the Complainant offer two inconsistent versions of the events that night. [ 14 ] The Complainant said that she had 5 or 6 Palm Bay coolers after supper August 23, 2020. That was her recollection at trial. During her interview just a few weeks after the incident, she said it was 7 or 8. Regardless of the number, she explained that it takes very little alcohol for her to be affected. She said the Palm Bays go down like water and she gets lightheaded after 4.

She said that on this evening she was 9 on a scale of 1 to 10 where 10 is intoxicated. She said she was stumbling. She said her mother had to guide her down the stairs and to her bedroom. She said she then passed out in bed, probably around 9 pm. She said she still had all her clothes on, which

were shorts and a top, over underwear and a bra. She said she never sleeps naked. [ 15 ] She recalls nothing of the ensuing hours until morning, except that during the night she sensed a shirtless man on top of her having sex with her and that she could not move him off. But she considered it maybe a dream. [ 16 ] When she awoke the next morning her shorts and underwear were on the floor beside the bed, her shirt was also off, and she noticed that her vaginal area was wet. She went to the bathroom just steps away, wiped to dry herself and noticed black pubic hairs from her vaginal area. She concluded Mr.

Hofley must have had sex with her because of the presence of the wetness, the presence of black pubic hairs though her pubic area was shaved, and because he was the only other person in the house. [ 17 ] At trial she added, for the first time, that she had glanced up during the experience and recognized it was Mr. Hofley atop her. I do not believe her on this narrow point, because, first, she never said this at any time previously when she recounted the experience, including soon after the event.

And because, second, at trial she became defensive when cross-examination questions caused her to think the questioner suggested she was lying or mistaken about it being Mr. Hofley who did it. She was certain by her reasoning that it had to be him and so elaborated on her so-called dream sequence to say she saw it was Mr. Hofley. Her logic was sound, and Mr. Hofley readily admitted it was him that night, but I do not believe she saw and recognized the perpetrator as Mr.

Hofley at the time. [ 18 ] Upon her discoveries the next morning, the Complainant reported it to her mother, who escorted her for medical assessment and attention. [ 19 ] Mr. Hofley says the two had nothing to drink before supper or at supper. After supper, which the Complainant’s mother prepared, Mr. Hofley and the Complainant were both drinking. Between about 6 and 9 pm, Mr. Hofley had about 14 oz of rum and the Complainant had 7 or 8 cans of Palm Bay coolers. Mr. Hofley said she gets lightheaded from 4. The mother and fiancé did not join in the drinking and departed to their camper. Mr.

Hofley and the Complainant kept drinking while each was busy on social media chat sites on their individual phones. They were not communicating with each other directly or by chat site. The Complainant stayed in the living room; Mr. Hofley was primarily outside on the balcony. Their only interactions were if Mr. Hofley offered to get her another Palm Bay cooler while he was in the kitchen mixing another of his rum and Pepsi drinks. Mr. Hofley said when he was in the kitchen that he heard a “thump’ – that she had fallen to the floor going towards the stairs.

He said she was “a bit toxicated” and staggering and stuttering and that her actions were different than usual. He said he ended up helping her down the stairs and into her bed. [ 20 ] On another of his accounts of the events, however, Mr. Hofley said the Complainant headed downstairs to her room, without his assistance, still on her chat room, and then he went downstairs to his room. [ 21 ] Regardless of Mr.

Hofley’s different descriptions of how she came to be downstairs and regardless of his different descriptions of her state once there, he said after they were both there about 10 minutes that she came to his room and opened his door and asked what he was doing. He said “masturbating” to which he said she then said, “do you need any help”. He said he paused and then said, “well, if you want to.” She said, “just give me a second to use the washroom,” and when she returned, they began “kissing and stuff,” with her telling him what to do.

He said, “And I was like, okay.” [ 22 ] He said the kissing started, that she wanted him to take her clothes off of her, and that after “and from there, we went all the way.” In another description of the event he said she took off her own clothes. [ 23 ] He said she was awake during the sex. He said “Her eyes were open. She was just laying there making some moaning sounds.” [ 24 ] In another of his descriptions he didn’t say she just lay there making moaning sounds but that she kept on repeating “fuck me, fuck me, fuck me. ...

She goes, harder, harder, harder.” He said, “She said that like six times.” [ 25 ] He said she had told him “just don’t cum inside me”. He said he accidentally did, and then she got really mad. And so they were finished. [ 26 ] He said he left the room. In another account he said he asked if she wanted to go for coffee and that she said “No, I’m too drunk. I’m gonna go to bed.” And so he did also. The next day he was confronted by Matt asking what happened and told he had to leave the 4-plex in 48 hours. [ 27 ] These two versions of the events cannot both be true.

When this occurs the judge does not merely choose the more likely of the versions or go with whomever might be more believable. That would deny Mr. Hofley the presumption of his innocence. [ 28 ] On all points of inconsistent testimony that are material to elements of the offence I concern myself only with whether I have a reasonable doubt. If I believe Mr. Hofley on any one of those points, then I must acquit. If I do not believe him but his evidence nevertheless leaves me with a reasonable doubt, then I must acquit.

If I have a reasonable doubt after considering the Complainant’s evidence, or if not but do have a reasonable doubt after considering all the trial evidence, then I must acquit. It follows that if I am not sure who to believe, then, again, I must acquit. [ 29 ] After reviewing the evidence at length, I find there to be far too many internal inconsistencies for it to be reliable. Mr. Hofley had two versions of how the Complainant got from upstairs to downstairs, one aided and the other unaided.

One version was with his help, supporting her around her waist, and the other was on her own while continuing on her smart phone chat room. [ 30 ] Under oath he offered three different descriptions of the Complainant during the intercourse. Two I have already mentioned. One version was awake and moaning, the other was enthusiastically active and vocally encouraging its continuing. He also offered a third version, saying “She seemed like she was blacked out ...

She was, like, over the limit.” In the interview in which he gave that version, he explained that she must have been blacked out because he learned she said she did not recall the events of the night before. So her being blacked out may have been an inference on his part after the fact, rather than his recollection of the Complainant’s appearance during the event. But he also explained the “blacked out” description by saying she would have blown over the breathalyzer limit had

she been tested. So I conclude he was describing her appearance at the time of the intercourse. [ 31 ] And there were other inconsistencies. He was inconsistent about masturbating when he said the Complainant came to his room, first saying during his interview that he was, then later saying he was only thinking about it. During the trial he reverted back to saying he was and that what he told the investigating officer the second time was not true. [ 32 ] During the trial he acknowledged some of his statements to the investigating officer were incorrect.

He also said, speaking of his time at the trial, “my mind’s all over the place and I don’t know where it is at.” [ 33 ] He gave inconsistent versions about what he was wearing during the intercourse. To the investigating officer he said he had taken his pants off; during the trial he said his pants were on the whole time and he took his penis out of them by unzipping. [ 34 ] He gave inconsistent versions of how the Complainant’s clothes were removed. [ 35 ] Even under friendly direct examination, Mr. Hofley was unable to give consistent responses. I find myself unable to rely on any of Mr.

Hofley’s evidence that is not confirmed by other evidence in the trial. I do not believe Mr. Hofley’s exculpatory version. Further, it does not leave me with a reasonable doubt on the matters in issue here, on the absence of her consent and on his intent despite, I find, his knowledge of that absence. [ 36 ] While his various inconsistencies are dispositive of the complete unreliability of Mr. Hofley’s exculpatory evidence, I also find his exculpatory version implausible.

By “his exculpatory version” I mean the version among the many he offers that the Complainant initiated the intercourse, actively encouraged its progression throughout, and honestly believed that thereby she communicated her consent to it. [ 37 ] I find it implausible because between their supper and the events as Mr. Hofley describes them, they had no discussion of having sex; they exchanged no suggestive inquiries or even hopeful flirtatious glances, despite the alcohol flowing.

They were indifferent to each other, engrossed in their own separate smart phone chat rooms. [ 38 ] I find it implausible also because despite all the indicia he described of the Complainant’s intoxication, including her staggering and stuttering, falling to the floor many times, and needing help getting down the stairs and into her bed, Mr. Hofley says just around 10 minutes later she was up, standing at his door and talking. According to him she asked him what he was doing; she made her own way to the washroom and then back to her room and then firmly directed their escalation of sexual contact.

This is implausible given his descriptions of her extremely intoxicated state prior and, further, inconsistent with her manner of speaking and her presence in court. [ 39 ] Mr. Hofley says that I should nevertheless have a reasonable doubt upon considering the Complainant’s testimony. He says the Complainant’s evidence was not reliable. He referred to her frequent acknowledgement of not remembering and her self describing as having been drunk. [ 40 ] I disagree.

Any frailties of the Complainant’s recollection do not pertain to her recollections of the core events, about the evidence going to the elements of the offence. They are about peripheral matters, such as the precise number of Palm Bays she drank. The Court’s concern is not the precise number of Palm Bays she drank, but the effect they may have had on her; whether they rendered her incapable of consenting or she still retained an operating mind.

On that issue, which I address below more directly, any effects of her alcohol consumption on the clarity of her recollection and therefore the reliability of her evidence are limited to inconsequential matters – her “dream sequence” and the number of Palm Bays she drank. [ 41 ] In that respect this case has a similarity to R v Shrivastava , 2018 ABQB 998 , where the Court observed at paras 89 and 90: Ms. B’s memory was weakest on details that are not central to the alleged offence. I would find it difficult to rely on her evidence of peripheral details for its content, unless corroborated.

By contrast, her sensory memory of being vaginally penetrated and trying to push someone away, though fleeting, was clearly and consistently related. She described feeling drunk, with a spinning head and foggy brain. She did not fully understand what was going on. After several seconds, everything went black again. Afterward, she wondered whether her memory of the penetration was a dream or reality, ....

I accept that her memory of this period of time is reliable. [ 42 ] The Complainant was unwaveringly consistent on her recollections of her intoxicated state, her heading to bed with her mother’s assistance, her getting into bed clothed, her awaking largely unclothed, and her then discovery she had been violated sexually. [ 43 ] I found the Complainant’s evidence frank and compelling. I find the Complainant credible and her evidence reliable in respect of the core elements of the offence.

I am not left with a reasonable doubt after considering the Complainant’s testimony nor do I have a reasonable doubt after considering all the trial evidence. [ 44 ] I turn then to address more specifically the two elements of the offence in issue in this trial, consent and intent, that I have just said the Crown has proven beyond a reasonable doubt, given the emphasis on them in closing submissions of counsel. [ 45 ] A finding of subjective consent “requires both that the complainant was capable of consenting and did agree to the sexual activity”: R v GF , 2021 SCC 20 at para 53 .

A complainant “will only be capable of providing subjective consent if they are capable of understanding” [ GF at para 58] the following four things [ GF at para 57]: 1. the physical act; 2. that the act is sexual in nature;

3. the specific identity of the complainant’s partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. [ 46 ] I find the Crown has proven beyond a reasonable doubt that the Complainant did not consciously understand any of those four things. She had no such understanding by reason of the effect upon her of her alcohol consumption. I find the Complainant was passed out drunk. She described herself state earlier that evening as “9 to 10 on the drunk scale” and she required her mother’s assistance down the stairs to her bedroom.

She was penetrated vaginally that night and the next day could recall nothing about it beyond the vague sense she thought might be a dream, of being pinned down by the man violating her, helpless to move him off. I find, therefore, she was without the capacity to consent. I note also that much of the evidence of Mr. Hofley was similar in describing the Complainant’s obvious and significant degree of intoxication. [ 47 ] The Complainant’s ‘dream sequence’ memory does not preclude a finding of incapacity.

The Supreme Court said in GF at para 65: […] Whether the complainant has a memory of events or not does not answer the incapacity question one way or another. The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate. [ 48 ] The Complainant was not capable, given her degree of intoxication, to refuse to participate.

As explained by Antonio J, as she then was, in Shrivastava at para 61 , “no consent is obtained where the complainant is incapable of knowingly and voluntarily agreeing to engage in each and every act of a sexual nature with a particular partner.” She did not and could not formulate in her own mind a conscious agreement to engage in the sexual activity with Mr. Hofley: GF at para 43. [ 49 ] I have found to be true the Complainant’s account of the events and I reject as fabricated Mr. Hofley’s exculpatory version in his evidence. Having rejected Mr.

Hofley’s exculpatory evidence, the facts offer no basis for any mistaken belief in consent by Mr. Hofley. [ 50 ] I find the Crown has proven beyond a reasonable doubt that Mr. Hofley was reckless. The Supreme Court said in R v Zora , 2020 SCC 14 at paras 117-118 (citations omitted; emphasis in original): Recklessness requires that accused persons be aware of the risk of not complying ... and proceed in the face of that risk .... Knowledge of risk is key to recklessness. ...

Recklessness has nothing to do with whether the accused ought to have seen the risk in question, but whether they subjectively saw the risk and continued to act with disregard to the risk. [...] The risk cannot be far-fetched, trivial, or de minimis . The extent of the risk, as well as the nature of harm, the social value in the risk, and the ease with which the risk could be avoided, are all relevant considerations ….

Although the trial judge will assess whether a risk is unjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accused was aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified. [ 51 ] I find Mr. Hofley knew the risk of proceeding to violate the Complainant sexually in the circumstances. Yet he proceeded anyway, in the face of that risk. This constitutes recklessness. Mr.

Hofley said in cross examination that he understood at the time that a person can’t have sex with another person without their consent and that just because that other person doesn’t say “no” does not mean they are consenting. [ 52 ] Mr. Hofley deliberately ignored the Complainant being incapacitated and proceeded to penetrate her anyway. Mr. Hofley acknowledged he was aware of the many ways the Complainant displayed she was extremely intoxicated. Apposite among them are these exchanges during his interview with the investigating officer a few weeks after the event: A.

She was kind of stuttering her words, and that’s how I know when somebody is drunk. They’re, like - - stutter a bit. Q. Any other indications? A. And she was stuttering, she was - - every time I went to go do something, I end up seeing her laying on the floor and I’m like, What are you doing on the floor? Well, I’m trying to get on the couch, and I fell. And I’m like - - and she’s like, Can you please come help me up? I’m like, Okay, I’ll come help - - I’ll come give you a hand, help you up - - help her up. She was staggering, trying to stand.

So I grabbed her by the waist, walked her down the stairs, made sure she was in her bed, and then she got up from her bed, started walking towards the bathroom, and then from the bathroom to where I was. […] Q. Did she seem out of it when you guys were having sex? Or was it - - you know? A. She seemed like she was blacked out. Q. Okay, and what do you mean by that? A. She was, like, over the limit. As soon as you gave her a breathalyzer, she would have went over the breathalyzer mark. [ 53 ] I find Mr. Hofley did not awaken the Complainant.

He chose to not make any inquiries as to her obvious immobile condition and her obvious incapacity to consent, let alone ask of her possible interest in sexual activity.

[ 54 ] Further, Mr. Hofley said he did not recall if he did anything to elicit the Complainant’s consent to the intercourse. I find that he did not. This is equally fatal to Mr. Hofley’s defence on the fourth element, the mental element, under

section 273.2 (

b) of the Criminal Code . Since he took no steps to ascertain whether the Complainant was knowingly and voluntarily agreeing to sexual activity with him, that

section precludes the availability of the defence of mistaken belief in consent. [ 55 ] I am therefore satisfied beyond a reasonable doubt that the Crown has proven the Complainant was without capacity to consent and that Mr. Hofley was reckless in proceeding as he did. [ 56 ] I find Mr. Hofley guilty of the single charge of sexual assault. Heard on the 19 th and 20 th day of September, 2022 at the Town of Drumheller, Alberta. Dated at the City of Calgary, Alberta this 13 th day of October, 2022. P.R. Jeffrey J.C.Q.B.A. Appearances: E. Ng for the Crown C. Leggatt for the Accused