R v FS, 2023 ABCJ 116

In the Alberta Court of Justice Citation: R v FS, 2023 ABCJ 116 Date: 20230516 Docket: 210853388P1 Registry: Calgary Between: His Majesty the King Crown - and - FS Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way.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 E.J. Tolppanen [ 1 ] Below are my written reasons upon which the oral reasons delivered on May 16, 2023, were based. These written reasons are substantially the same as the oral reasons.

To the extent that they differ, these written reasons supersede the oral reasons. [ 2 ] FS is charged on a three-count Information, alleging that: • Count #1 – On or about the 28 th day of August 2021 at or near Calgary, Alberta, did unlawfully commit a sexual assault upon BT, contrary to

section 271 of the Criminal Code of Canada . • Count #2 – On or about the 28 th day of August 2021 at or near Calgary, Alberta, did knowingly utter, convey or cause BT to receive a threat to cause death or bodily harm to BT, contrary to

section 264.1(1)(

A) of the Criminal Code of Canada . • Count #3 – On or about the 28 th day of August 2021 at or near Calgary, Alberta, did unlawfully assault BT, contrary to

section 266 of the Criminal Code of Canada .

[ 3 ] The elements of the three alleged offences that are not in issue in the case are: (

a) the identity of FS as the accused, (

b) the identity of BT as the complainant, (

c) that the events took place at or near Calgary, Alberta, and (

d) that the events took place between on or about August 28, 2021. Overview [ 4 ] By way of overview, for a couple of years, FS and BT had been in what was described by BT as an on and off boyfriend/girlfriend relationship. On August 27, 2021, BT and the accused met up to talk about their relationship. After meeting, they went to BT’s Calgary apartment where they remained until August 28, when the accused left. [ 5 ] In respect of the charge of sexual assault, it is alleged that while at the apartment the accused assaulted BT by

an act of sexual intercourse upon her without her consent. BT testified that, while they were both on the floor of her bedroom, they began to have sexual intercourse. Shortly after it began, she wanted it to stop, but despite repeatedly telling the accused to stop and trying to push him away, the accused forced ongoing vaginal intercourse upon her until he ejaculated.

BT testified that his actions only ended when she elbowed him hard. [ 6 ] There being no doubt that the accused intentionally touched BT in a sexual way – that this occurred was not challenged on cross-examination of the complainant and was conceded in closing submissions – the questions remaining to be answered are whether it has been proven that BT did not subjectively consent throughout to sexual intercourse and whether the accused knew of or was reckless or wilfully blind to BT not consenting.

If these are proven beyond a reasonable doubt, FS is guilty of sexual assault. [ 7 ] For the reasons that follow, I find that BT revoked her initial consent to sexual intercourse and the accused knew this. FS is guilty of sexual assault (being count 1). The Crown, reasonably in my view, has not sought convictions on counts 2 (being the allegation of a threat) and 3 (being the allegation of common assault). I find FS not guilty of these two counts.

The Evidence [ 8 ] What follows next is an overview of the evidence, with particular focus on the aspects that are relevant to elements of the offence of sexual assault that are at issue. Note that merely because I have not mentioned some aspect of the evidence or the arguments advanced does not mean that I have failed to consider it. I carefully listened to the testimony, and have reviewed the transcripts and the exhibits.

I have considered all of the evidence, along with all of the arguments advanced by the Crown and by counsel for FS. [ 9 ] The Crown called one witness, being the complainant. [ 10 ] BT testified about the background to the allegations that are before the Court. • BT is age 26 and, in August 2021, had two children, ages five and three. • BT and her children lived in a two-bedroom apartment in Calgary. • She and the accused had been in a boyfriend/girlfriend relationship that had been “on and off for the last couple of years.” [ 11 ] BT testified about the general events of August 27 and 28, 2021. • On August 27, BT and the accused were “trying to work [their relationship] out.” • To this end, they met up that afternoon and then went to BT’s apartment, arriving at the apartment at 3:30pm. • BT’s children were elsewhere with family. • For “a couple hours” and while alone at her apartment, she and the accused discussed, verbally fought, yelled and argued about their relationship. • As to physical contact between the two of them, BT testified that, at one point, she shoved the accused because he was getting too close to her; after which the accused pulled her close to him and kept calling BT names.

This

part lasted “a good hour.” • During their arguing and at BT’s suggestion, the accused went outside to “smoke a joint.” He then became angrier, going on about how BT left him for another person. • This went on until approximately 5:30pm when BT’s two children were dropped off at the apartment. • The four of them picked up pizza and returned to the apartment where the arguing continued, this time in front of the children. • At one point in the evening, BT smoked a marijuana cigarette.

On cross-examination, she denied being intoxicated or even feeling any effects from the marijuana. • BT started putting her children to bed at around 8pm, after which she and the accused continued to discuss their relationship, this time while sitting on the floor in BT’s bedroom.

The accused was “getting upset.” [ 12 ] BT testified as to the circumstances of the alleged sexual assault. • She testified that while on the floor in the master bedroom, she and the accused “started like kissing each other and it kind of led into making love I guess or sex or whatever.” She described the initial part of the encounter as, “we started having sex, like he stuck it in and it was okay at first, like I was fine with it, it felt good at first and then I didn't like it, so I asked him to stop and he kept going.” (I note that in her direct examination, she initially testified that this activity took place in the living room, but she clarified that this was in

her bedroom.) BT further testified as follows: o She was on her hands and knees, with the accused behind her. o “I tried to push away from him [be]cause I didn't want it.” o “Over a minute” after it started, “it didn’t feel right after so I asked him to stop and he didn’t.” o The accused “was like, well you're going to take it and ... he stuck his penis back in and it was getting closer to my anus and I started to panic and I was starting to fling my hands up in the air.” o She tried to get away from the accused by grabbing the carpet and pulling herself away from him.

She also described this as “clawing at the ground.” The accused would pull her back. o BT became mad at the accused who, “was like no, you're going to take it, so he stuck his penis back into my vagina and he was really going at it and it scared me and I was crying.” o “I asked him to stop and he wouldn't, he was like I'm almost there, I'm almost done.” o BT was stating to the accused, “no, just stop, no just take it out, you need to do what I say, just stop, no stop and I kept yelling at him. o BT was “yelling stop.” She estimates she said stop 15 times. o The accused ejaculated, “closer to the end.” o The activity lasted a further 15 minutes from the time she said for him to stop. o It ended when BT, “kind of elbowed him in the stomach and he kind of pulled out of me.” She did this because the accused “wouldn’t stop and he wouldn’t pull or take his penis out of me.” • After this, the accused asked her why she elbowed him and he called her names.

There was then yelling and verbal fighting back and forth. • BT testified that before falling asleep, she cried “because he didn't stop, he didn't listen to me and I was really scared.

I thought I did something wrong.” • BT testified that she suffered bruises (one of which, she testified, is shown in Exhibit #1), and that her vagina hurt and took a day to heal. • On cross-examination BT: o disagreed that she is lying about the sexual assault; o disagreed that the accused stopped immediately upon her telling him to stop; and o agreed that she told the police it was a minute and a half to two minutes between her saying stop and the activity ceasing.

She testified that it felt longer and that he did not stop immediately. [ 13 ] BT also testified about her interaction and communication with the accused and police after the alleged sexual assault. • The accused stayed in the apartment on the floor of the master bedroom until the next morning. In the morning, he became angry about BT’s two children not listening. He and BT were yelling back and forth, and calling each other names.

BT testified that the accused said to her at one point that he wants to hurt her because she hurt him. • As to any physical contact between she and the accused, BT testified that there was mutual pushing. • The accused left when BT said she was going to call the police, which she did as soon as the accused left. • BT testified that, when she called the police, she was scared that if the accused found out “he was going to do something” to her. • On cross-examination, BT testified as to text messages with the investigating police officer in September, October and November 2021 (records of these text messages are Exhibit #2). • On cross-examination, BT testified as to her multiple messages and multiple unanswered calls to the accused on October 2 and 3, 2021 (records of these messages and calls are Exhibit #3). • She testified that the reason she sent these messages to the accused was “he had called me threatening me and I felt like I had to say stuff like this.” She testified that she did not notify the police of these threats as the accused told her she was not allowed to contact the police. • BT testified that Exhibit #3 shows messages on the Instagram messaging platform, but does not include all of the messages and calls between she and the accused.

On the Crown’s re-examination, she testified that she and the accused also communicated using the messaging platforms Facebook, Snapchat, and Tiktok. • BT testified on cross-examination that the accused said to her that he was going to leave the country and go to Paris, but she

disagreed that the accused stated he would travel on his own.

She testified that he wanted to take BT and her children with him, anddisagreed that she told him that if he left her he would be “dead or in jail.” • BT agreed on cross-examination that: o when she was asked in a September 21, 2022, police telephone interview whether she initiated contact with the accused, she answered,“once I told him to leave me alone when I sent you those screenshots,” and o when she was asked in a February 9, 2023, sworn police interview: ▪ if she had been sending the accused texts, she answered she only messaged him after he messaged her; ▪ how many times the accused had contacted her, she answered “Four Facebook messages;” and ▪ how many times since the incident had she replied to the accused, she answered, three times.

Legal Framework [14] I will next describe the applicable legal and analytical framework for this case. The Burden of Proof [15] In a criminal trial in Canada, an accused is presumed innocent until proven guilty. This fundamental principle is enshrined insection 11(

d) of the Canadian Charter of Rights and Freedoms. The Crown must prove the guilt of an accused beyond a reasonabledoubt. This burden, which applies to each element of an alleged criminal offence, remains upon the Crown throughout the trial and itnever shifts to the accused. [16] A reasonable doubt is a doubt based on reason and common sense which must be logically grounded in the evidence or lack ofevidence. This threshold falls much closer to absolute certainty than to proof on a balance of probabilities. An accused who isdetermined to be probably guilty must be acquitted. See R v.

Starr, 2000 SCC 40 at paragraph 242; R v. Lifchus, (SCC) at paragraphs 30-39, and R. v. W.(D.), (SCC). Credibility and Reliability [17] The outcome of this case turns on my assessment of the credibility and reliability of the complainant, being the only witnesscalled. [18] Credibility has to do with a witness’ veracity, while reliability has to do with the accuracy of the witness’s testimony.Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount the events in issue: R. v.

C. (H.), 2009ONCA 56 at paragraph 41. [19] Further to this assessment, I draw on the observations of Justice deWit (then of the Court of King’s Bench) in R. v. KHT,2017 ABQB 753. In the context of the three-part test from R. v. W.(D.), Justice deWit highlighted at paragraph 10 the followingregarding assessing witness testimony: Assessing a witnesses’ testimony requires a judge to consider whether the witness can properly interpret what they have seen, heard orexperienced, whether they have a good memory, an ability to communicate, and whether there are any reasons for them to offerinaccurate information.

Inconsistencies and a lack of detail will also be considered by a judge in assessing credibility. A trial judge willalso 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 whenassessing 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 weighton their testimony. [20] As to her credibility, it is alleged by the accused that BT has a motive to fabricate the allegations. The motive of witnesses isalways open to examination and scrutiny, with evidence of a motive to fabricate being germane to a witness' credibility.

This washighlighted in the decision of Justice Loparco in R v KML, 2022 ABKB 710, wherein she states at paragraph 54: As a starting point, it is trite that in a criminal trial the motivation of every witness in any case is open to examination and scrutiny. In Rv Batte (2000), , 145 CCC (3d) 449,34 CR (5th) 197, 49 OR (3d) 321 CA), the Ontario Court of Appeal made thisobservation (at paras 120-121): Questions directed to show that a witness has a motive to fabricate evidence are admissible, as is evidence from other witnesses that awitness had a motive to fabricate evidence: R. v.

M. (B.), [(1998), 130 CCC (3d) 355] supra, at p. 373; R. v. P. (H.P.) (1996), (MB CA), 112 C.C.C. (3d) 140 (Man. C.A.), at 150; P. McWilliams, Canadian Criminal Evidence, para 37:20530. Juriesare told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as amatter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricateevidence.

Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will andshould consider in assessing a witness' credibility. What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant hasa motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or,finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth.

The presence or absence ofa motive to fabricate evidence is only one factor to be considered in assessing credibility. [21] See also R v CEK, 2020 ABCA 2 at paragraph 26.

[22] I also note the following observation of Justice L’Heureux- Dubé in her concurring reasons in R v AG, 2000 SCC 17atparagraph 3: Our Court has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricatestories based on “ulterior motives” and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social scienceresearch supports this generalization. [citations omitted] [23] Finally, in respect of the absence of a motive to fabricate, in R. v.

Gerrard, 2022 SCC 13 at paragraph 4, Justice Moldaver forthe Court stated: Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised bythe defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, atparas. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a commonsense factor that suggests a witness may be more truthful because they do not have a reason to lie.

That said, when considering thisfactor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidenceeither way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does notexist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibilityanalysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive tolie or explain why a complainant has made the allegations (R. v.

Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33). [24] And as recently stated by our Court of Appeal in R v Ibrahim, 2023 ABCA 94 at paragraph 19: Whether SN [not being the complainant, but a Crown witness in the case] had reason to fabricate did not need to be addressed at trialfor the trial judge to consider the absence of evidence of a motive. In assessing a witness’ credibility, the trial judge was entitled toconsider the absence of evidence of a motive to fabricate as one factor [citations omitted].

The Offence of Sexual Assault The Actus Reus and Mens Rea [25] As to the elements of the offence of sexual assault, in R. v. Barton, 2019 SCC 33 the Supreme Court of Canada stated thefollowing at paragraph. 87: A person commits the actus reus of sexual assault “if he touches another person in a sexual way without her consent” (R. v. J.A., 2011SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the “intention to touch and knowing of, or being reckless of orwilfully blind to, a lack of consent on the part of the person touched” (R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330, atpara. 42). [26] More specifically, as set out in R. v. Ewanchuk, (SCC), [1999] 1 SCR 330 at paragraphs 25-26, the actusreus of sexual assault requires proof beyond a reasonable doubt of the following: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It issufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively;the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v.Litchfield, (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, (SCC),[1987] 2 S.C.R. 293.

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), atpp. 437-38, aff’d (SCC), [1997] 1 S.C.R. 304, R. v. Park, (SCC), [1995] 2 S.C.R. 836, at p. 850, perL’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. [27] At the actus reus stage, consent is the “voluntary agreement of the complainant to engage in the sexual activity in question”:Criminal Code,

section 273.1(1). See also R. v. G.F. 2021 SCC 20 at paragraph 29. For there to be consent, it must be “present at thetime the sexual activity in question takes place” (Criminal Code,

section 273.1(1.1)). These provisions indicate that “Parliament viewedconsent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter” and as requiring “anoperating mind, able to evaluate each and every sexual act committed:” R. v. J.A., 2011 SCC 28, at paragraphs 31 and 43. [28] As to the required proof of mens rea for sexual assault, in R. v. Ewanchuck, the Supreme Court stated at paragraphs 41-42: Sexual assault is a crime of general intent.

Therefore, the Crown need only prove that the accused intended to touch the complainant inorder to satisfy the basic mens rea requirement. See R. v. Daviault, (SCC), [1994] 3 S.C.R. 63. However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defenceof mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch thecomplainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent: see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3.

As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, orbeing reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park, supra, at para. 39. [29] More recently in R. v. G.F., the Supreme Court stated at paragraph 25: At the mens rea stage, the Crown must show that (

i) the accused intentionally touched the complainant; and (ii) the accused knew thatthe complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused’sperception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicatedconsent: R. v. Barton, 2019 SCC 33, at para. 90.

The Role of Consent in Sexual Assault Cases [30] In R. v. Barton, the Supreme Court of Canada addressed the manner in which consent is to be treated in the analysis of sexualassault cases. The Court stated at paragraphs 88-90: “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity inquestion”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (J.A., at para. 31),and it must be freely given (see Ewanchuk, at para. 36).

This consent must exist at the time the sexual activity in question occurs (J.A., atpara. 34, citing Ewanchuk, at para. 26), and it can be revoke at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further,as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity in question”,which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it doesnot include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases”(R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57). Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainant inher mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on thecomplainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies thatshe did not consent, and the trier of fact accepts this evidence, then there was no consent – plain and simple (see Ewanchuk, at para. 31).At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, for the actusreus to be established (see J.A., at para. 37). For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicate consent,“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexualactivity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”(ibid., at para. 47). Mistakes of Law in Sexual Assault Cases [31] It is important to address erroneous notions regarding the concept of consent that provide no defence and have “no place inCanadian law.” [32] First, consent to sexual activity cannot be “implied.” This was made clear over two decades ago by the Supreme Court ofCanada in R. v. Ewanchuk and has been restated many times since.

The Supreme Court in R. v. Barton stated at paragraph 98: The “specious” defence of implied consent “rests on the assumption that unless a woman protests or resists, she should be ‘deemed’ toconsent” (Ewanchuk, at para. 103, per McLachlin J. (as she then was)). Ewanchuk makes clear that this concept has no place inCanadian law. As Major J. stated for the majority, “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistakeof law, and provides no defence” (para. 51, citing R. v. M. (M.L.), (SCC), [1994] 2 S.C.R. 3; see also J.

Benedet,“Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution” (2014), 52 Alta. L.Rev. 127). It is also a mistake of law to infer that “the complainant’s consent was implied by the circumstances, or by the relationshipbetween the accused and the complainant” (J.A., at para. 47). In short, it is an error of law — not fact — to assume that unless and untila woman says “no”, she has implicitly given her consent to any and all sexual activity. [33] Nor can an accused rely upon a notion of unspecified prior or “advanced consent”. This too was addressed in R. v.

Ewanchuk,and more recently in R. v. Barton at paragraph 99: “Broad advance consent” refers to the legally erroneous notion that the complainant agreed to future sexual activity of an undefinedscope (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 thecomplainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is whatParliament had in mind” and “this Court has also interpreted this provision as requiring the complainant to consent to the activity ‘atthe time it occur[s]’” (para. 34, citing Ewanchuk, at para. 26).

Thus, a belief that the complainant gave broad advance consent to sexualactivity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. Position of the Parties [34] Regarding the allegation of sexual assault, the Crown submits that the testimony of BT was credible and reliable, and shouldbe accepted by the Court.

In answer to the accused’s assertion regarding BT’s credibility, the Crown submits that assumptions ought notto be made about how complainants will or should act after the events that give rise to alleged offences, and that the inconsistenciesbetween her post-event messages to the accused and to the police (which the Crown submits BT acknowledged in her testimony) do notdetract from the credibility of her testimony regarding the events. [35] Acknowledging that the sexual activity took place, the accused submits that BT’s testimony that she did not consent wasneither credible nor reliable, and does not prove this element of the allegation of sexual assault to the requisite standard.

The accusedhighlights several factors which he submits damage BT’s credibility and reliability. • The inconsistency between BT’s post-event messages to the police and to the accused. • BT’s argumentative demeanour when cross-examined about the post-event messages. • BT’s explanation – which the accused submits is demonstrably false – that the accused was messaging BT using other messagingplatforms. • False statements to the accused within the messages themselves (i.e., about helping the accused get out of jail).

• Demonstrably false statements when interviewed by the police regarding her post-event communications with the accused. • Her denial of feeling the effects from her consumption of marijuana. • Inconsistency between the police statement and her testimony regarding the duration of the sexual assault (i.e., one and a half to two minutes versus 15 minutes). Evaluation of the Testimony [ 36 ] I turn now to an evaluation of the testimony of BT.

For the following reasons, I found BT to be both a credible and a reliable witness. [ 37 ] First, BT’s testimony was specific and detailed. • She provided a fairly detailed chronology of the sequence of events from when they spoke on the phone and made plans to meet on the afternoon of August 27, to when the accused left her apartment late in the morning of August 28. That is not to say that that her chronology was so certain and precise to suggest it was manufactured.

Some of the times and timing she provided were estimates and on some other occasions she acknowledged that she was unsure. • She was able to recall what she and the accused spoke about, and even specific words used during their ongoing arguing about their relationship (e.g., the names he called her, that he felt hurt by her having had another relationship, his trust issues). • As to the alleged sexual assault, her testimony was very detailed about her and the accused’s words and actions, including their body positions; the words she used; how loud she spoke; how many times she said to stop; her actions to try to make it stop (e.g., push away from him, fling her arms in the air, using the carpet to pull herself away from the accused, “clawing at the ground,” elbowing him) and his words verbal and physical responses to her wanting it to stop. • While I agree with defence counsel that there was inconsistency as between BT’s police statement and her direct examination answer about the amount of time that elapsed between her telling the accused to stop and when he stopped (a minute and a half to two minutes versus 15 minutes), I accept that this inconsistency is because (as BT explained) “it felt longer though.” Given the words she stated to the accused and the actions she described, I accept that the duration of time was longer than the minute and a half to two minutes that she told the police. • BT also recalled the emotions she felt during the sexual assault (panic, anger) and immediately following the assault (fear and a feeling that she did something wrong). • BT also testified as to the specific injuries incurred during the assault: bruising (which I find was corroborated by the photographed taken by the police and made Exhibit #1) and that her vagina was injured. [ 38 ] Second, the circumstances and sequence of events described by BT were, both individually and collectively, entirely plausible.

For instance: • She and the accused meeting to discuss where things were going to go with their relationship – a relationship that had been on and off for a couple of years – was reasonable. • That they chose to go to BT’s apartment to have this discussion was reasonable given that her children were out for the day. • While unfortunate, it is not uncommon for those in relationships – particularly ones that are unstable – to argue about their relationship. • That she and the accused went into her bedroom to continue the discussion about their relationship was reasonable given that BT’s children were home and had gone to bed. • Moreover, that they were seating on the floor of the bedroom is explained by BT’s testimony that she did not have furniture. [ 39 ] Third, it was clear that, while BT was at times frustrated by the court proceedings and on several occasions was argumentative with counsel, she was for the most part, a careful witness, appropriately disagreeing with, correcting, or seeking clarity from counsel during her examination.

When BT was uncertain or was providing an answer that was an approximate or did not know an answer, she said so. [ 40 ] Fourth, BT’s testimony was candid and balanced, and was fair to the accused.

For instance: • In terms of her candour, she testified that their arguing was back and forth, and that, “I laid my hands on him first” referring to her shoving the accused as they argued. • She acknowledged the accused’s feeling that she had hurt him emotionally. • She described her children as being happy to see the accused as he was, “the only father figure for the kids.” [ 41 ] Finally, I will address several specific assertions advanced by the accused respecting aspects of BT’s testimony that he argues diminish her credibility.

Messages to the Accused [ 42 ] The accused asserts that the messages from BT to the accused on October 2 and 3, 2021, (documented as Exhibit #3) damaged

her credibility in two respects. Note that the admissibility of these texts messages was addressed in a pre-trial ruling in which I allowed them to be admitted for the two limited purposes addressed next. Importantly, the accused does not rely upon (and would not have been permitted to rely upon) the content of the texts to show that the complainant is more likely to have consented to the alleged sexual assault that forms the basis of some of the allegations before the court, is less worth of belief because she communicated with the accused, or that she did not engage in non-avoidant behaviour. The evidence would not have been admissible on the basis of this impermissible reasoning. See the

summary of this issue in R. v. Harnett 2022 ABQB 122 at paragraphs 41-45 . • First, it is asserted that these messages – in which she made repeated attempts to contact the accused and even asked to meet him – are inconsistent with her text messages to the police. Specifically, the accused asserts that BT’s October 6, 2021 text messages to police stating that: (1) she did not want the accused around her or talking to her; and (2) she feared the accused, are inconsistent statements when compared to the messages to the accused from days earlier.

While seemingly inconsistent, for the following reasons I do not regard this as diminishing BT’s credibility. o I accept BT’s explanation that she sent the October 2 and 3, 2021 text messages to the accused because he had called her threatening her and she “felt like I had to say stuff like this.” This is certainly consistent with her testimony regarding her call to police on the morning of August 28, when she was scared that if the accused found out about her calling the police “he was going to do something” to her.

I find that her messages on October 2 and 3, 2021 were an attempt to neutralize what she feared was the accused’s anger towards her. There is support for this within the messages themselves. The messages begin with her apologizing to the accused for him being in jail and calling herself a bad person (message of October 2 at 6:08am).

She later tells him that she helped get him out of jail (messages of October 2 at 8:39am and 7:43pm), something she acknowledge in cross-examination to be untrue. o Even if the messages of October 2 and 3 to the accused reflected BT’s feelings on those dates, they were sent three to four days before her messages to the police office. It is entirely plausible that during the intervening days she became fearful of the accused and wished no contact with him, as she expressed to the police.

This is particularly so given her testimony that their relationship had a pattern of being “on and off.” I note also that her message to the officer at 10:13 on October 6, 2021, expressed her feelings at that point, stating, “I’m scared for my life now .” (With my emphasis on the word now .) o I do agree with defence counsel that the nature of the messages documented as Exhibit #3 suggest that during this two-day period (October 2 and 3, 2021), the accused was not replying to BT’s messages. I do not believe that the accused ever replied or that these messages had been deleted.

That said, BT’s incorrect belief that this is case does not diminish her credibility. She was clear (and I accept) that she used other messaging platforms (e.g., Facebook and text) and seemed to be prolific in her use of messaging platforms. This conclusion is supported by the numerous messages documented in Exhibit #3 and the many text messages documented by Exhibit #4. It is plausible that BT was recalling other exchanges with the accused using a different messaging platform or at different times.

I do not believe that BT was attempting to deceive the Court regarding purported deleted messages from Exhibit #3. • Second, the accused also asserts that BT’s text messages to the accused support the theory that she fabricated the allegations as a result of the accused wishing to end their relationship.

With or without the evidence of the text messages, I do not find that there is any evidence supporting the assertion that BT was motivated to fabricate the allegations. o She denied that the accused intended to go to Paris without her and denied that she threatened him that if he left her, he would be dead or in jail. o While she agreed that she was upset that their relationship was ending, she added that she was the one who “kept running from him.” o While ostensibly many of the text messages state BT’s ongoing feelings for the accused and her upset that the accused is not responding to her messages, this is a far cry from supporting the theory that she was motivated to fabricate the allegation of sexual assault.

While there was not evidence of a motive to fabricate, I am not prepared to go further and consider the absence of a motive to fabricate as a factor in favour of BT’s credibility. I consider it neutral. Prior Inconsistent Statements in Police Interviews [ 43 ] The accused asserts that BT lied to the police in her September 21, 2022 and February 9, 2023 police interviews (the latter being a sworn statement); specifically that she lied to the police about not initiating contact with the accused and about the frequency of their contact.

Depending upon the significance of the topic, an evasive answer or false statement in a police interview may (but not must), provide a basis for discrediting, in whole or in part, a witness’s testimony. In this case, I do not find the impugned aspects of BT’s police interviews regarding whether she initiated contact and the frequency of her contact with the accused to be so clearly an attempt to deceive the police or to be of such significance that it materially impacts her credibility.

In addition, I note that: • The September 21, 2022, telephone interview was prompted by BT’s report to the police that the accused had been contacting her. It would have been in this context that she was asked if she ever contacted him.

It is unclear whether her response at the time (i.e., “Once I told him to leave me alone when I sent you those screenshots”) was intended to cover all contact since the incident or just the then- recent alleged contact by the accused that she brought to the attention of the police. • In the February 9, 2023, interview about sending the accused texts, she stated that she only messaged him after he messaged her. Exhibit #4 documents text messages between the accused and BT in May and June 2022, many showing her number as being the “number called” by the accused.

It is certainly not clear who can be regarded as having messaged first in their multiple text exchanges over this time period. As such, I do not find that BT’s answer demonstrates that she was deceptive with the police. • It is unclear if her response on February 9, 2023 that she replied to the accused three times since the incident was a reference only to Facebook messages or included text messages and other messaging platforms. Even if she understood this to refer to any and all messages, as already stated, I do not regard this as being of such significance that it impacts her credibility generally.

Consumption of Marijuana [44] BT acknowledged that prior to the alleged sexual assault, she consumed marijuana. The accused asserts that, becausemarijuana causes impairment, her denial about feeling intoxicated or even any effects from this marijuana, damages her credibility. I amnot prepared to speculate as to what the likely or expected impact would have been on BT from the amount she acknowledges smoking orto find that her uncontradicted denial that she felt an impact discredits her testimony.

Testimonial Demeanour when Questions about the Messages to the Accused [45] The accused asserts that BT’s demeanor while testifying regarding the text messages to the accused was combative andargumentative. A witness’ demeanour is of limited value. As noted in R v. Rhayel, 2015 ONCA 377, per Epstein J.A. Cases in which demeanour evidence has been relied upon reflect a growing understanding of the fallibility of evaluating credibilitybased on the demeanour of witnesses: see Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193 , 99 O.R. (3d) 1(C.A.), at para. 66; R. v.

G. (P.), 2012 ONSC 4646, 104 W.C.B. (2d) 390, at paras. 31-33; 9129-9321 Quebec Inc. v. R., 2007 TCC 2,[2007] T.C.J. No. 23, at para. 31; R. v. Powell, [2007] O.J. No. 555, at paras. 9-10. It is now acknowledged that demeanour is of limitedvalue because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of andpressures associated with a courtroom.

One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness. [46] While I agree with defence counsel about BT being at times combative and argumentative, I am not prepared to find that thisdiminishes her credibility or reliability. How a witness reacts to the intensity and scrutiny of court proceedings, particularly complainantsin cases alleging sexual offending, cannot be predicted and may be misinterpreted. In this case, BT testified that she was (quiteunderstandably) nervous and uncomfortable about the court proceedings.

I do not discount her credibility because, at times, hernervousness and discomfort may have manifested itself with her becoming a frustrated and challenging witness.

Findings of Fact [47] Based upon the testimony of BT, I make the following findings of facts regarding the pertinent aspects of the events of August27 and 28, 2021. [48] As to the events leading up to the alleged sexual assault: • On August 27, BT and the accused met up and, with BT’s children being out, went to BT’s apartment to discuss their relationship. • For a couple of hours they discussed, verbally fought, yelled and argued as about their relationship. • There was some physical contact between the two of them, being a shove at one point by BT.

After that, the accused pulled BTclose. • This went on until approximately 5:30pm when BT’s two children returned home. • BT put her children to bed at around 8pm, after which she and the accused moved to her bedroom floor and continued to discusstheir relationship. [49] As to the sexual assault: • On the floor in the master bedroom, BT and the accused started kissing and commenced sexual intercourse, with the accusedbeing behind her. To this, she initially consented. • Shortly after it began, it did not feel right to BT and she no longer consented. • BT asked the accused to stop.

The accused did not stop and persisted in sexual intercourse. • BT’s words and actions from that point included: o Telling him, including yelling at him, to stop some fifteen times. o Trying to push him away. o Flinging her hands up in the air. o Gripping the carpet to try to pull herself away. o Elbowing the accused hard in the stomach, after which he stopped. • BT felt panic, anger and fear. • The accused’s words and actions included: o Pulling BT back when she tried to pull away. o In response to her saying to stop, saying to BT words to the effect of “no, you're going to take it” and “I'm almost done.” o The accused ejaculated, “closer to the end.”

• While it is unclear how long the intercourse lasted from the time BT said to stop, it was sufficient time for these words to be spoken and actions taken. • BT was bruised to her body and her vagina was injured. • BT cried because of what happened and because she felt she did something wrong. She then fell asleep in on the floor of the bedroom. Application of the Found Facts to the Elements of Sexual Assault [ 50 ] In terms of the application of these found facts to the elements of sexual assault, I draw the following conclusions.

Actus Reus Touching and the sexual nature of the contact by the accused upon the complainant [ 51 ] I have no difficult finding that it is proven beyond a reasonable doubt that the accused touched BT and that the contact was sexual in nature. In this regard, BT clearly testified that the accused pushed his penis into her vagina and there was vaginal intercourse. Her testimony was credible and reliable. That this occurred was not challenged on cross-examination and was conceded in closing submission. These two aspects of the actus reus of sexual assault are proven.

Consent by the Complainant [ 52 ] To complete proof of the actus reus of sexual assault, the Crown must also prove beyond a reasonable doubt that BT did not subjectively consent to the specific sexual act. [ 53 ] BT testified that, while she initially consented to sexual intercourse, she revoked this consent. If this evidence is accepted, then there was no consent and this final aspect of the actus reus is proven. For the reasons given, I accept her testimony as to her subjective state of mind and, specifically, that she revoked her consent.

Mens Rea [ 54 ] As sexual assault is a crime of general intent, the Crown need only prove beyond a reasonable doubt that the accused intended to touch the complainant. On the basis of the testimony of BT, which was acknowledged by the accused, there was an intentional sexual touching by the accused upon BT. This aspect of the mens rea of the offence is proven. [ 55 ] The Crown must also prove that the accused knew of, or was reckless or wilfully blind to, a lack of consent on the part of the person touched.

As the defence advanced was that the absence of subjective consent by BT was not proven, this issue was not argued by the accused. [ 56 ] I find that the accused had actual knowledge that BT was not consenting to the ongoing sexual act. BT issued and I find the accused heard and received her repeated, loud, and unequivocal no’s ; yet he persisted.

Moreover, that he had direct knowledge that BT was not consenting is proven through his owns words and actions. • The accused’s words to BT “was like, well you're going to take it.” • The accused would pull her back when she tired to pull away. [ 57 ] His words and actions only make sense if he knew she was not consenting, but he intended to persist in sexual intercourse, nonetheless. [ 58 ] Understandably, defence counsel did not raise the defence of honest but mistaken belief in communicated consent.

While I do not find the accused is required to testify in order to have this defence considered, it is clear from the totality of the evidence that I have accepted that there is no air of reality to this defence. Specifically, upon revoking consent, BT never affirmatively communicated by words or conduct her ongoing agreement to engage in the sexual activity with the accused (see Criminal Code

section 273.2 (c)). Quite the contrary; as already referenced, by her words and actions, upon revoking consent, she clearly and repeatedly indicated to the accused no . [ 59 ] For these reasons, each of the elements of sexual assault is proven beyond a reasonable doubt and the accused is guilty of count 1. [ 60 ] While the Crown has not sought convictions on counts 2 (being the allegation of a threat) and 3 (being the allegation of common assault), I will briefly address these two counts. [ 61 ] The evidence of a threat by the accused towards BT was, at best, vague and equivocal.

While BT testified that over the course of August 27 and August 28, 2021, the accused was often angry, the only reference to a threat was BT’s testimony that the accused said, “he wants to hurt me” because she hurt him. In the context of the evidence of the arguments about their relationship that preceded the sexual assault, it is likely that the word “hurt” meant causing BT the same sort of emotional pain that the accused was claiming she caused him.

I am not satisfied that that his words were a threat to cause death or bodily harm. [ 62 ] Nor am I satisfied to the requisite standard that, independent of his sexual assault upon BT, the accused otherwise assaulted BT. In this regard, BT testified as to her initially shoving the accused and his pulling her to him during the arguing that preceded the sexual assault, and then further mutual pushing the next morning. I am not satisfied by this testimony that the accused committed a

common assault. [ 63 ] In the result, FS, you are guilty of count 1, being sexual assault, and not guilty of count 2 (being the allegation of a threat) and not guilty of count 3 (being the allegation of common assault). Heard on the 16 th day of May, 2023 . Dated at the City of Calgary, Alberta this 16 th day of May, 2023. E.J. Tolppanen A Justice of the Alberta Court of Justice Appearances: T. Buglas for the Crown M.T. Walton for the Accused