R. v. Roland, 2022 BCPC 181

Citation: R. v. Roland 2022 BCPC 181 Date: 20220526 File No: 21424-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FREDERICK CLIFFORD ROLAND BAN ON PUBLICATION 486.4(1) CCC ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. CUTLER Appearing for the Crown: P. Cheeseman Counsel for the Accused: R. Morahan Places of Hearing: Colwood and Duncan , B.C.

Dates of Hearing: November 6, 2020, January 19, 2021, March 15, 2021, May 12, 18 & 27, 2021, July 2, 2021, August 13 & 19, 2021, October 22, 2021, February 7 & 10, 2022 and March 24, 2022 Date of Judgment: May 26, 2022 [ 1 ] THE COURT: The accused is before the Court pursuant to a two-count information alleging that he sexually assaulted the complainant on March 5, 2019, and on March 29, 2019. There is no question that there was sexual activity between the accused and the complainant on the two dates. The central issue before the Court is to determine whether the sexual activity was non-consensual.

The complainant states she did not consent to the sexual activity while the accused maintains she did consent or, in the alternative, that he believed she consented.

[ 2 ] There were no other witnesses to the sexual interactions on the two occasions. The only evidence as to what occurred during the interactions is from the accused and the complainant. Accordingly, assessing the testimony of the accused and the complainant is critical to the Court's determination of this matter. As will become clear, the accused and the complainant provide different accounts of the complainant's willingness to participate in the sexual activity on both occasions.

Count 1: The Alleged Assault of March 5, 2019 [ 3 ] At the time of the first alleged assault, the parties had known each other for several years and had more recently engaged in a healing practice whereby the accused was assisting the complainant with "her journey" and with emotional issues she was experiencing. The accused is a spiritual healer who conducts sweat lodge ceremonies on his property. The complainant had participated in Ayahuasca ceremonies provided by the accused and saw him as a mentor and was seeking spiritual growth and healing.

She had recently incurred a head injury and, as well, she was experiencing relationship difficulties with her partner. The complainant was a Reiki therapist at the time and was also looking to the accused to assist her in expanding her healing practice. [ 4 ] The first alleged assault occurred on March 5, 2019, when the complainant, at the invitation of the accused, attended at a bed and breakfast which the accused had rented. One of the purposes for the complainant's attendance was to have the accused provide the complainant a massage.

Engaging in a massage apparently came about as a result of a suggestion by the accused at earlier ceremony discussions. The accused is not a masseuse and had no formal experience. The complainant was aware of this and felt comfortable with the idea as the accused's wife was a massage therapist and she felt a massage could help her with her healing. [ 5 ] The complainant attended with a bottle of body oil which the accused had suggested she bring to be employed during the massage.

Upon arriving at the bed and breakfast, the accused had already placed a sheet on the bed and the accused suggested to the complainant she become more comfortable and he left the room. The complainant removed her clothes, except possibly her underwear, laid on the bed, and covered herself with the sheet. The accused returned shortly thereafter and proceeded to give the complainant a massage while she lay on her stomach. The accounts provided by the complainant and the accused diverge as to how the massage and the sexual activity proceeded.

i) The Complainant's Account [ 6 ] The complainant acknowledged that she cannot remember substantial portions of what occurred once the massage commenced and she is unable to recall the order of events. According to the complainant, while lying on her stomach, the accused massaged her upper torso including the sides of her breasts and eventually massaged her buttocks. She maintains the accused did not ask her if it was okay to touch her breasts, nor did the accused ask if it was okay to massage her buttocks.

According to the complainant, while the accused was massaging her buttocks, he without notice inserted his fingers into her vagina. She maintains that the accused never asked her if he could insert his fingers into her vagina and at no time did she tell him he could. [ 7 ] The complainant testified she did not protest at the time as she was in shock and froze. She testified that at this point she disassociated from herself. The complainant does not have a clear memory of how the activity progressed, but does recall each performing oral sex and there being vaginal intercourse.

She also remembers the accused wishing to engage in anal intercourse, but the complainant objected and that did not occur. [ 8 ] Once the sexual activity concluded, the complainant got dressed and she testified there may have been some "small talk." Although she did not recall cuddling with the accused before leaving, her statement to the police stated the two did cuddle. She testified her memory would have been better when she gave her statement to the police.

Subsequently, the complainant left the premises with no untoward words being spoken. [ 9 ] The complainant testified that she did not consent to any of the sexual activity. She testified she did not resist except when the accused indicated he wished to engage in anal intercourse. She testified that she hoped to appease the accused given her isolated situation. She was shocked at the accused's conduct and was concerned for her wellbeing as no one was aware of her location or who she was with.

She indicated that, during the sexual activity, she froze and at times disassociated from the activity. [ 10 ] The complainant indicated that for several months subsequent to the sexual encounter on March 5, she did not want to alienate the accused or cause any upset in their relationship as she feared this would have adverse implications for her within her social network. She indicated she tried to keep things positive in order not to alienate the accused.

She reported the assault along with the second assault to the police at the beginning of May 2019. ii) The Accused's Account [ 11 ] The accused does not deny the sexual encounter. He testified that the sexual activity was consensual and that the complainant communicated her consent as the sexual activity progressed. He maintains the complainant communicated her consent by words, gestures, and positive actions. [ 12 ] The accused indicated that he commenced the massage by massaging the shoulders and neck area of the complainant and then moved down her back as she lay on her front.

He indicated her breasts were pressed out so he asked her if it was okay to massage her along her breasts. She said that would be okay. [ 13 ] After massaging the complainant's upper torso, the accused then put the sheet over her top, removed it from her legs, and started massaging her foot and leg moving up towards her lower torso. When he came to her buttock, he asked her if she was okay if he massaged her buttock. She said that would be okay. He massaged her buttock and then started to massage the other foot and leg, again moving up to her buttock.

When he arrived at her other buttock, he again asked her if she was okay with him massaging her buttock. He testified she again indicated she was okay with him touching her buttocks, which he did. He testified that he did not insert his fingers into her vagina at this time. [ 14 ] The accused testified that, after massaging her buttock, he asked her to turn over, which she did. At this point, he commenced

massaging her head, shoulders, neck, and collarbone. He then asked her if it was okay to massage her breasts and she said that was okay.He massaged her breasts and proceeded to massage her abdomen. He then covered her upper torso with the sheet and removed the sheetfrom her right leg and commenced massaging her right leg to the upper part of her hip. He then covered her right leg with the sheet andremoved the sheet from her left leg.

He proceeded to massage her left leg including her upper leg and he asked her if she was okay withtouching her inner upper leg and she responded affirmatively. [15] He then proceeded to touch the outside of her vagina over her underwear, again asking if she was okay with this and again shesaid she was okay. He proceeded to massage her vagina over her underwear and she indicated she was okay with this and was grindingher hips at the time and getting excited.

The accused testified it was at this point he believed the massage might become sexual. [16] The accused testified that he then placed his hands on the sides of her underwear which was a G-string and motioned to thecomplainant to slide the underwear off at which time the complainant lifted her hips and the accused moved the underwear down thecomplainant's legs. She then put her hips down and lifted her feet in the air and the accused removed the underwear. Once her underwearwas removed, the accused asked if he could perform oral sex on the complainant.

The complainant freely offered herself to the accused,grabbed the back of the accused's head indicating she wished for him to perform oral sex on her. The accused performed oral sex on thecomplainant and the complainant was responsive, moving her hips, with her hands on his head. During the oral sex, the accused insertedhis fingers in the complainant's vagina. [17] After performing oral sex, the accused got off the bed and removed his clothing.

He then placed his penis in front of thecomplainant's face at which time, she leaned up from the bed, reached over, and grabbed his penis and started to aggressively performoral sex on the accused. This oral sex ended with the accused moving to the lower part of the bed and, while holding the complainant'sleg, he asked her if she was okay with this, to which she responded she was not on the pill and she was worried about getting pregnant.The accused indicated he had had a vasectomy.

The accused testified that the complainant seemed to be okay with that response and hepenetrated her and she began moving her hips and was positively participating in the intercourse. [18] Subsequently, the accused withdrew and motioned to the complainant to turn over which she did on her own into a kneelingposition. The accused got behind her and started to rub his penis against her anus and asked her about anal sex. She said no and reachedaround and pushed his penis down lower so he could enter her vagina, which he did.

Sometime later, the accused withdrew, thecomplainant rolled on her back, and they recommenced intercourse. [19] According to the accused, the complainant communicated her consent to all the sexual activity on this occasion. The accusedindicates that the complainant was very involved in the sexual activities and moving her hips backwards and forwards with him. It wasonly the anal sex that she indicated she did not want to engage in and the accused did not engage in anal intercourse with the complainantas a result of her indications.

He testified that the two cuddled after the sexual activity and the complainant left shortly thereafter. Hefurther testified that all his interactions with the complainant during her visit to the rental unit were positive and he had no indication thatshe was uncomfortable or having difficulty engaging with the accused. iii) Assessing the Evidence [20] In assessing the evidence before the Court on this prosecution, one must be mindful of the fundamental principles that the burdenof proving the guilt of the accused is upon the prosecution and the Crown must prove its case beyond the reasonable doubt.

The accusedis never required to prove his innocence or disprove any of the evidence led by the Crown. The central issue in this sexual assaultprosecution is to determine whether the Crown has proven beyond a reasonable doubt that there was an absence of consent on the part ofthe complainant. Absence of consent is subjective and determined by reference to the complainant's state of mind towards the sexualtouching at the time it occurred, R. v. Ewanchuk, 1999 SCC 711. [21] As indicated, there were no witnesses to the two alleged assaults other than the accused and the complainant.

In criminalprosecutions such as the case at bar where the central issue for the Court is to assess two differing accounts of what occurred during analleged sexual assault, ‘he said/she said’, the Court, while attempting to resolve the conflicting evidence, must adhere to the principlethat a trial is not a credibility contest requiring the Court to decide which one of the conflicting versions is true. The Court must assessthe witnesses' evidence carefully, applying the principles established in R. v. W.(D), (SCC), [1991] 1 S.C.R. 742, and thesubsequent jurisprudence. [22] R. v.

W.(D.) addresses the approach to be followed where the credibility of the accused is in issue. In R. v. Ay, (1994) (BC CA), 59 B.C.A.C. 161, at paragraph 64, Wood J.A. confirmed the proper jury instructions in such cases as had beendetermined by R. v. W.(D.) and his earlier decision in R. v. C.W.H. (1991) (BC CA), 3 B.C.A.C. 205: (

a) If they believe the accused they must acquit. (

b) If they do not know whether to believe the accused or the complainant, they must acquit. (

c) If they do not reject the evidence of the accused they will have a reasonable doubt and must acquit. (

d) If they disbelieve the accused, that is if they reject his evidence as untrue, they have to be convinced beyond a reasonable doubt ofthe guilt of the accused on the whole of the evidence before they could convict. [23] The Supreme Court of Canada has indicated the test as set out in R. v. W.(D.) need not be recited "word for word as some magicincantation," R. v. W.D.S., (SCC), [1994] 3 S.C.R. 521, nor should the words be given a level of sanctity or immutableperfection, R. v. J.H.S., 2008 SCC 30 , [2008] 2 S.C.R. 152.

What is critical is the burden never shifts from the Crown to proveevery element of the offence beyond a reasonable doubt and that the Court should not approach the issue of credibility as being requiredto choose between the two versions of events. And lack of credibility on the part of the accused does not equate to proof of guilt beyondthe reasonable doubt, R. v. J.H.S. [24] With these principles in mind, the Court must assess the credibility of the witnesses. The Supreme Court has recognized that

assessing credibility is a difficult and delicate matter and it is not a science, R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3 andR. v. Gagnon, 2006 SCC 17. There are numerous factors a judge should consider when assessing a witness' credibility. Case law in thisprovince has addressed how the Court ought to approach the task of assessing a witness' credibility and identified some of the factors. Inthe recent decision of R. v. Chambers, 2021 BCSC 799, Justice MacNaughton provides a helpful

summary: [125] In Bradshaw v.

Stenner … Justice Dillon summarized the factors that might be helpful to both assessments: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides … The art of assessment involves examination of various factors such as theability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify hisrecollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changeshis testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whethera witness has a motive to lie, and the demeanour of a witness generally. … Ultimately, the validity of the evidence depends on whetherthe evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time … [126] To those factors, I add that a court may believe some, all, or none of the evidence of a witness, and that credibility determinations“may not be purely intellectual and may involve factors that are difficult to verbalize”: R. v.

R.E.M. … at para. 49. It is important not tobase determinations of credibility on emotional evaluation, stereotypes, guesswork, or other kinds of impermissible reasoning.Credibility and reliability decisions have to be grounded in reason and made as objectively as possible. [127] It is also important to be cautious in placing too much reliance on the demeanour of a witness. I first encountered the witnesses inthis case at trial. Thus, my assessment of their demeanor is a first impression, and I have no baseline against which to measure it.

Trialsare unfamiliar to most witnesses, and many find them an intimidating experience, particularly when the stakes are high, as they are in acriminal case. [25] In the often-cited case of R. v. Parent, 2000 BCPC 11, Judge A.E. Rounthwaite, at paragraph 5, enumerated a number of factorswhich may be helpful when assessing credibility: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately, 2. the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the Court: bias, prejudice, or advantage. To consider the obvious possible motive of every accusedperson to avoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive whenassessing an accused's testimony. 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [26] It is also important to recognize the distinction between credibility and reliability.

This was addressed by the Manitoba Court ofAppeal in R. v. Perrone, 2014 MBCA 74, commencing at paragraph 25: [25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey … Doherty J.A. wrote(at p. 526): Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony.

Theaccuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events inissue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracyof a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not crediblecannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.

In thiscase, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination. [26] In R. v. H.C. … Watt J.A. described the difference between credibility and reliability (at para. 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 in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey … [27] In short, the fact that a witness may be found to be credible does not answer the question of whether the evidence provided is

reliable (see R. v. Vickerson …). [ 27 ] In R. v. H.C. , 2009 ONCA 56 , the Ontario Court of Appeal, in dismissing the appeal, quoted the trial judge's comments addressing the relationship between credibility and reliability at paragraph 43: [43] As he began his analysis, the trial judge reminded himself of the crucial importance of both credibility and reliability to his decision: The correct disposition of this case is dependant upon an assessment of credibility.

An assessment of credibility involves evaluation not only of the honesty of the particular witness, but also the reliability of the evidence of the witness. One should not rely on the testimony of a dishonest witness in the absence of some independent corroborative evidence; however, even honest witnesses can be mistaken. It sometimes happens that a witness will be quite honest and sincere yet his or her evidence may not be reliable due to external factors such as ability to observe, remember, or relate accurately.

In the case at bar, the credibility and therefore both the honesty and the reliability of the evidence of [K.F.], her mother, [T.F.], and the accused are crucial to the outcome of the trial.

a) Assessing the Evidence of the Accused [ 28 ] For the reasons that follow, I have difficulty believing the accused and his account of the sexual encounter on March 5. The accused's credibility was significantly undermined by his testimony before the Court.

He contradicted himself on critical aspects of his sexual activity with the complainant, was evasive in his responses, and I find fabricated evidence to mislead the Court. [ 29 ] With respect to this last point, I will focus on an email forwarded from the complainant to the accused on January 12, 2019, as it became a focal point in these proceedings and was the subject of numerous legal arguments as its relevance evolved as the trial proceeded. [ 30 ] The credibility of the complainant and the accused was very much in issue as it related to the contents of this email forwarded by the complainant to the accused approximately seven weeks before the first alleged assault.

The email forwarded by the complainant to the accused on January 12, 2019 was from her Gmail account in response to an email from the accused wherein he provides her advice on how to address issues she was experiencing with her then partner, her emotions, and her journey. [ 31 ] There are two versions of the email placed before the Court and marked as exhibits, one by the accused and one by the complainant. The version produced by the accused contains a closing phrase which is entirely absent from the email produced by the complainant.

The email placed before the Court by the accused shows a response from the complainant thanking the accused and indicating, "I will sit with these emotions and already as I breathing [ sic ] to them they are slowly dissolving, wish I could have someone like you to satisfy me" followed by an emoji of a smiling face.

The email provided to the Court by the complainant does not have the final words, "wish I could have someone like you to satisfy me" followed by an emoji of a smiling face. [ 32 ] The email with the "satisfy me" statement was initially placed before the Court by the accused in an attempt to have it adduced in the trial proper on the basis that its contents supported the accused's position that the complainant was sexually interested in the accused and had consented to the sexual activity during the two alleged assaults or, alternatively, that the email supported the accused's position that he mistakenly believed she had consented. [ 33 ] A hearing was held pursuant to s. 276 of the Criminal Code to determine whether the email could be adduced.

My reasons for admitting the email are reported at R. v. Roland , 2021 BCPC 265 . Although the contents were viewed as likely pertaining to prior sexual activity which would prohibit the email's admissibility, I concluded the email ought to be adduced as there was evidence indicating the complainant may have provided inconsistent statements with respect to her sexual interest in the accused thus undermining her credibility which is a central issue in this trial.

The email was found to be admissible for the purpose of assessing credibility and not for the purpose of inferring consent to the sexual activity involved in the two alleged assaults. [ 34 ] The email proffered by the accused was placed before the complainant while she was under cross-examination. Her reaction was initially confusion trying to sort out how and if she would have written such an email. She indicated it did not look like an email she would write. She indicated she would not have used the words "satisfy me" and that she does not employ the form of emojis set out in the email.

She would not agree that she had written the email. [ 35 ] During the lunch break while the complainant was still under cross-examination, she sought to retrieve the email from an old email account to confirm whether, in fact, the version placed before the Court was an email she had written. She claimed she located the email and she provided this information to Crown counsel later in the day after her testimony had concluded and the Crown had closed its case. The email located by the complainant does not contain the words "wish I could have someone like you to satisfy me" followed by an emoji of a smiling face.

Crown counsel advised defence counsel of the discovery and provided counsel with a copy of the email the complainant claims is the accurate version. [ 36 ] The Crown was permitted to call the complainant in reply as a result of her not being able to give evidence relating to the discovered email when she testified earlier in the trial. The complainant testified that it had been some time since she had used her email account which contained the email.

Upon being presented with the "satisfy me" email in cross-examination, she decided over the lunch break that she would attempt to locate the email in her old account. She was able to access her email account after obtaining a new password and was able to locate the email dated January 12, 2019. As indicated, a copy of that email was marked as an exhibit in these proceedings and it does not contain the "satisfy me" statement. [ 37 ] The complainant testified that she could access the original emails through her Gmail account on any computer or her cellphone.

She testified she had her cellphone with her on the witness stand and could access her Gmail account and pull up the email on her cellphone if needed. She was not challenged on this and counsel did not ask her to do so. [ 38 ] The accused's testimony with respect to the "satisfy me" email was extremely troubling. The email was placed before the Court and marked as an exhibit during the accused's direct testimony. He indicated the contents of the email he produced with the "satisfy me"

statement was a true copy of what he received from the complainant and he did not modify or change the words or alter the contents. The accused indicated that he transferred his emails to a Word document and then provided the Word document to his counsel.

It is this version that contains the "satisfy me" phrase which was placed before the Court by the accused. [ 39 ] In direct examination, the accused provided an extraordinary account of how his computer had fallen into a bucket of water in his residence and, as a result, he was now unable to retrieve the data on his computer addressing the email and provide it to the Court. He provided an elaborate description including photographs explaining the sequence of events leading to the computer's submersion in the water.

The apparent demise of the computer occurred a few days before the accused was to testify in this matter and within days of the accused learning the complainant had located the emails exchanged between her and the accused and they did not contain the "satisfy me" comment. [ 40 ] The damage to the computer was of little import to determining the contents of the original email as the evidence established the email sent by the accused and the complainant were from web-based servers and could be accessed from any computer or cellphone.

In cross-examination, the accused confirmed the email is from his Hotmail account which is a web-based program. He also acknowledged that by transferring the email to the Word document, one is able to delete or add words to the text of the email. It remains unclear to me why the accused did not simply forward the emails directly from his account to his counsel and avoid the use of his Word program. [ 41 ] The accused further conceded in cross-examination that he would not need his damaged computer to access the emails in his email account as he could access them from a friend's computer.

Once this was established, the accused, unlike the complainant, was not prepared to put his web-based email account before the Court to confirm the contents of the email he received from the complainant on January 12. Despite the obvious significance of the conflict between the accused and the complainant with respect to this email, the accused was not able to provide the Court with emails from his account. He claims he is not computer savvy and, although he tried with others, he could not find the email. [ 42 ] The accused maintained he transferred the email to a Word program and forwarded it to his counsel.

He testified that since then he may have deleted it, but he cannot remember doing that. One would have thought that it would be a relatively easy task for the accused or someone on his behalf to access his email account to determine if the email had, in fact, been deleted or what the contents were when received by the accused from the complainant. It is also unclear to me why the accused would have deleted the email when there is evidence indicating that he maintained the records of his communications with the complainant from early on when he first became aware of the allegations.

Given his defence advanced in this trial, the documentation of the email would have been perceived by the accused to be important evidence in this trial. He concluded his testimony on this matter by adopting the position that the email had likely been deleted and could not be found in his email account, but he does not remember deleting the email. [ 43 ] It should not be overlooked that the accused had knowledge that the complainant had indicated to police during the investigation of the alleged assaults that she did not have the email communications between her and the accused.

As Crown submits, this information would have placed the accused in a position where he believed he could revise the contents of the emails and the complainant would not be in a position to contest same. Conversely, while counsel for the accused asserts the complainant lied in earlier statements she made indicating she did not have the emails, it seems far more likely that, as she testified, she no longer used the email account and had no interest in searching for same. Accordingly, when she was asked by the police if she had the emails, her response was to indicate she did not have them.

Moreover, it is not clear to me why the complainant would lie to the police about not having access to her emails when she had no reason to believe that the accused did not have access to the emails in his account. [ 44 ] In essence, the complainant denied that she had written an email containing the "satisfy me" statement, provided a copy of the email she sent, and indicated while on the stand that she was able to pull up her account on her cellphone and locate the email in question.

Conversely, the accused, who believed the complainant did not have access to the email when he first provided his version of the email to his counsel, was not prepared to provide access to his account and made insufficient efforts to confirm whether the email still existed in his account.

Instead, he initially attempted to explain his inability to access his email account as a result of his computer being damaged by water and, once it became clear that the computer was not needed to access his account, he adopted the position the email may have been deleted from his account. [ 45 ] After reviewing all the evidence relating to the email, I am satisfied that the accused altered the email to include the "satisfy me" comment in order to mislead the Court.

While one might conclude the accused's fabrication of the email confirms a guilty mind, the Court must be careful not to come to such a conclusion when there are other possibilities, in particular, that he fabricated the email to assist his efforts to avoid being found guilty of the sexual assault allegations and the adverse consequences this would have on the accused. Accordingly, I am unable to conclude that, because the accused fabricated the email, he must have committed the assault as alleged.

However, having concluded that he was prepared to and did fabricate evidence to mislead the Court, he has undermined his credibility considerably. It is indeed ironic that it was on the accused's application to challenge the complainant's credibility that the "satisfy me" email was admitted when ultimately it has undermined the accused's credibility. [ 46 ] It is most disturbing that a party would fabricate evidence to be presented before the Court.

I will leave it to the proper authorities to determine, after a full investigation and based on a thorough review of the evidence discovered, whether the conduct warrants criminal prosecution.

Although irrelevant for the Court's consideration in these reasons, I should note that two differing versions of another email which were not admitted in the trial proper were produced to the Court by the accused in a voir dire in these proceedings. [ 47 ] Beyond the deception involved in producing a fabricated document before the Court, the accused's testimony with respect to the March 5 incident suffered from internal contradictions and inconsistencies.

As well, the accused was often evasive and defensive when asked to explain his conduct during the incident. [ 48 ] The accused testified, "Any time I did anything sexual to her, I always asked her, 'Are you okay with this, is this all right?'". Yet, as he went through the sequence of events of the sexual activity during his testimony, it is clear that he did not always ask her but relied on physical gestures such as when he placed his penis before her and she performed oral sex on him. [ 49 ] A critical moment during the alleged assault was when the accused inserted his fingers into the complainant's vagina. The

accused testified that he inserted his fingers on one occasion and that was when he was performing oral sex on her. In response to whether he asked the complainant whether he could insert his finger, the accused provided contradictory evidence. The accused indicated that he put his fingers in the complainant's vagina while performing oral sex. He testified that he did not ask her if he could insert his fingers in her vagina.

Under cross-examination, he maintained that he did not ask the complainant if he could put his fingers in her vagina and he insisted numerous times he could not as his mouth was in her vagina. [ 50 ] Crown then applied to be able to cross-examine the accused on a prior inconsistent statement the accused provided on March 15, 2021, in the hearing held in these proceedings pursuant to an application pursuant to s. 276 of the Criminal Code . I granted Crown counsel's application to cross-examine the accused on a prior inconsistent testimony to impeach his credibility, but not to establish guilt ( R. v.

Darrach , 2000 SCC 46 ). [ 51 ] During the accused's testimony in the hearing held pursuant to s. 276 , he was asked, "Did you ask for her permission before you inserted your fingers into her vagina?" and the accused responded, "Yes, I was rubbing the outside before I put my fingers in and I did ask her if she was okay with that," and later he was asked specifically, "So you did ask her if she was okay with you putting your fingers inside her vagina?" to which he responded, "Yes, of course." In re-direct, the accused was asked by his counsel about this contradiction and the accused's sole response was that he found the questions confusing. [ 52 ] I am unable to understand how the questions could have been confusing to the accused as they were straightforward and addressed a particular moment during the sexual activity.

I have no difficulty concluding that the accused gave contradictory evidence when providing his account as to whether he asked the complainant if he could insert his fingers in her vagina. [ 53 ] As well, the accused initially testified that communications between the complainant and him subsequent to March 29 were by SMS format and the other form of communication was through Messenger format. There was no indication of phone conversations.

It was only in cross-examination that the accused indicated there were phone calls after March 29 and, for the first time, the accused in cross-examination advised the Court that there had been phone calls in which he and the complainant discussed their mutual pleasures experienced during the March 5 and March 29 sexual encounters and how wonderful it was. [ 54 ] It was quite extraordinary for this information to be provided to the Court well into the accused's cross-examination.

The defence advanced the position that the complainant was being untruthful when she testified and told the police and the Crown that she had no sexual interest in the accused and was disgusted by the idea. As indicated earlier, after an application by the defence, counsel for the accused was permitted to cross-examine the complainant with respect to her sexual interests in the accused. She had earlier stated to the police and Crown counsel that she had no sexual interest in the accused and did not wilfully participate in any sexual activity with the accused and was traumatized by same.

Yet during the complainant's cross-examination on this issue, it was never suggested to her that she engaged in conversations with the accused wherein she indicated her enjoyment and pleasure with the sexual activity with the accused. [ 55 ] Lastly, there were numerous instances where the accused in cross-examination was asked straightforward questions and he would engage in extensive evasion.

In one extraordinary exchange addressing whether the accused had asked the complainant if he could put his fingers in her vagina, the Crown was required to repeat the question numerous times and persist in efforts to receive an answer to the rather simple question. [ 56 ] After assessing the accused's testimony and the significant credibility issues identified therein, I have difficulty believing the accused and his version of events with respect to the sexuality on March 5. [ 57 ] As indicated earlier, the jurisprudence is clear that a lack of credibility on the part of the accused does not result in a conviction.

The Court must assess all the evidence, particularly the evidence it accepts, and determine if that evidence establishes the accused's guilt beyond the reasonable doubt.

b) Assessing the Evidence of the Complainant [ 58 ] After assessing the complainant's evidence, I have concerns with her credibility with respect to both the reliability of her evidence and her honesty. There is no question that the complainant had a very poor recollection as to how the alleged assault on March 5 unfolded. The complainant's testimony was at times difficult to follow, suffering from fragmented and failing memory with respect to the sexual encounter, and it left numerous gaps in the sequence of events.

She acknowledged she does not recall the order of events or the duration of the incident. [ 59 ] A complainant's poor recall is not uncommon in sexual assault prosecutions as often the complainant is traumatized by the event and the recounting of same is often very difficult. However, the Court must not assume because the complainant has a poor memory that it is a result of trauma caused by an assault, nor should the Court assume that a poor memory is a result of a complainant evading the truth.

Ultimately, the Court in this prosecution must assess all the evidence to determine whether the Crown has proven beyond a reasonable doubt that a sexual assault occurred at the bed and breakfast on March 5. [ 60 ] The complainant's inability to recall the incident on March 5 is problematic and has compromised the reliability of her testimony. The complainant acknowledged in her testimony that she was having a hard time remembering what occurred on March 5 and there are blanks in her memory, and she conceded that there is a substantial amount of time missing in her version of the events.

While acknowledging that she "can't remember substantial portions" of the March 5 event, she maintains that she did not consent to the sexual activity. [ 61 ] She attributed much of her poor memory to becoming disassociated from the incident as it was occurring. She indicates she disassociated from the event and, after that, she does not know what happened. She acknowledges that she was consciously there for "a little bit" and left her body and disassociated. It is not clear to me on her evidence when she disassociated.

Moreover, she cannot indicate how long and when she was disassociated, only that she was disassociated "like from what was actually happening." She indicated, "There was moments that I was disassociating. There was moments where I was aware of kind of what was going on," and moments when she came back to her body, "and what was happening."

[ 62 ] In this case, there are a number of factors that may have affected the complainant's ability to comprehend what was occurring during the incident, recall the details of the incident, and how she reacted during the incident. [ 63 ] The complainant suffered what she refers to as a brain injury at the end of September 2018 in which she indicated she was "non- functional" and "really messed up in, you know, my ability to just perform daily tasks." She is not sure to what extent this affected her memory and acknowledges seeking medical attention including physiotherapy as a result of problems with her memory. [ 64 ] She believes she may have been seeing a physiotherapist to address her injury problems around the same time as she was engaged with ceremony with the accused during the first months of 2019.

She indicated she can have a short attention span where her brain will just go blank. As well, she acknowledged that there are times when she is unable to hear a full sentence. [ 65 ] She referred to her brain injury as a fresh injury in the early part of 2019 and she sought to participate in an Ayahuasca ceremony with the accused to help her healing. At the time, she was not sure she was able to participate in the ceremonies because of her head injury and the "powerful" medicine in the tea consumed during the ceremony.

The tea contains a strong hallucinogenic drug, dimethyltryptamine (DMT), which affects human perception. [ 66 ] Due to the concerns shared by both the complainant and the accused of the complainant consuming DMT with her head injury, the complainant testified she commenced micro-dosing for about a month in February 2019. [ 67 ] Micro-dosing, according to the complainant, is not done with "the intention of altering the consciousness at all," but to have a "tiny, tiny bit" in your system so one is "not to feel anything" and it allows one's system to become accustomed to the "medicine." [ 68 ] The accused indicates in his testimony that he provided the complainant in the early part of 2019 root medicine to help her step away from the use of marihuana before she started micro-dosing. [ 69 ] On March 1, 2019, she attended a ceremony and ingested a large dose of DMT.

She understood the drug would be in her system for one to two weeks after ingestion. It is not clear whether this would result in lingering mental side effects affecting one's consciousness during this period. The evidence before the Court on this matter is from the complainant and the accused who both believed such ingestion posed a risk to the complainant's mental health as a result of her head injury.

According to the accused, who was present and leading the ceremony on March 1, the complainant was having a hard time during the ceremony due to her reaction to the hallucinogenic. [ 70 ] There is no question her March 1, 2019 experience was extremely trying for the complainant.

She had indicated in an email she wrote to the accused in January 2019 that, "I have never had such an emotional and heavy healing dieta." In her testimony, she was cross- examined on this email and she stated that her dieta in March was much harder than her dieta in January. [ 71 ] The complainant indicates that both her memory and recollection of the first alleged assault some four days after the consumption of DMT at the ceremony is not good and that she froze and disassociated from the event as it was occurring.

As indicated earlier, while it is possible that her poor recollection is a result of trauma she experienced during the alleged assault, both the head injury and the consumption of hallucinogenic drugs may also explain her poor memory and her disassociated state.

The Court has no evidence on the cause of a disassociated state or the impact disassociation has on an individual during or after the disassociation. [ 72 ] During her testimony, the complainant maintained that during the approximate two-month period between the first alleged assault and her reporting same to the police, she was "still trying to process what had happened." I have concerns that what she eventually processed may not be an accurate account of what occurred during the alleged assault and may be an account of something she has surmised as best she could in her efforts to recall and process the event.

As indicated, there is no evidence before the Court as to what the impacts of being disassociated are. Based on the evidence of the complainant, it is clear that this impacted her involvement in the event and left significant memory gaps. There is a real possibility that what the complainant eventually processed is simply what she now believes as a result of her efforts to piece it together which may not be reliable. [ 73 ] Regardless of the cause of her poor memory, the numerous gaps and inconsistencies in her testimony have compromised the reliability of her evidence.

Counsel for the accused cited scores of instances in the complainant's testimony when she was unable to remember what had occurred. And while some of these are minor matters and it may be unreasonable to expect the complainant to remember all aspects of the event, some of her lapses or gaps are significant. [ 74 ] She does not remember how or when the accused took his clothes off. She cannot remember the positions of her and the accused during the oral sex and only has an image of the accused's penis in her mouth. Similarly, she cannot recall their positions when the sexual intercourse occurred.

She testified she has no memory of being on her back. At another point in her testimony, she recalled being in a disassociated state looking down at herself and being on her back during the intercourse, but does not have a vivid vision of when or how she was on her back and she cannot say for sure that is when the sexual intercourse was occurring. She acknowledged that she told the police that she does not remember whether the accused asked her about vaginal intercourse. [ 75 ] She has limited recollection of the interaction involving the attempted anal sex.

She remembers the accused wanted to perform anal sex, but she does not remember how exactly this occurred, only that he was trying to put his penis in her anus and it did not happen. She is not clear how or why it did not happen.

She recalls that he wanted to perform anal sex on her and just remembers him going near her and that she might have moved his penis away. [ 76 ] At one point in her testimony, she indicated she disassociated with the insertion of the accused's finger in her vagina and her next memory is leaving, yet as indicated, at other times in her testimony she provided evidence as to what occurred at various times of the sexual activity after the digital penetration. [ 77 ] There were numerous areas in her testimony which further confirmed the problems with the reliability of her evidence.

She testified that at some point she froze and disassociated from what was actually happening. The complainant indicated, "I just like froze and I think it was at that point that I just kind of like almost had like an out-of-body experience, you know, kind of just like disassociated

or whatever, like from what was actually happening." She is unable to indicate when she disassociated or for how long, although her statements seem to suggest it may have occurred concurrently when she froze. [ 78 ] As well, the complainant had difficulty recalling when her underwear was removed during the incident. She testified that when she took her clothes off to prepare for the massage, she does not remember whether she had her underwear on or not. As well, she did not know if she still had her underwear on when the accused put his fingers in her vagina.

However, she told Crown counsel on October 19, 2020, that her underwear was removed when the accused was performing oral sex on her. [ 79 ] Of concern is that the complainant is clear that there are many parts of the encounter which she does not remember or has no recall and does not know what happened, yet she is firm that at no time did she indicate her consent to the accused. It is difficult to reconcile these positions.

Particularly problematic in assessing the reliability of the complainant's evidence in regard to how the sexual activity unfolded and whether she consented is that she acknowledged in her testimony that she will not always hear the full sentence if somebody is asking her something and she can have a short attention span where her brain will go blank.

One is left to wonder what she may have been asked by the accused, and said or done to communicate her consent during the sexual activity which she does not remember as a result of freezing, being disassociating, or her brain going blank. [ 80 ] Despite repeatedly in her testimony indicating she could not remember the events, she had disassociated during the interaction, and she has subsequently tried to forget the incident, she adopted a position that her memory of the incident is not incomplete.

Her self- assessment of her memory not being incomplete is unreasonable given the extensive gaps in her memory and the numerous inconsistencies in her testimony.

The frailties of memory and the discrepancies in the complainant's testimony make it difficult for the Court to accept beyond a reasonable doubt that the accused did not seek and receive the complainant's consent during their interaction at the bed and breakfast. [ 81 ] Beyond the issues with the reliability of the complainant's evidence, her credibility was further undermined by evasive responses to counsel's questions and numerous contradictions and inconsistencies including internal inconsistencies, prior inconsistent statements, and conflicts with documentary evidence. [ 82 ] When confronted with an inconsistency with her earlier testimony or statements to the police or Crown, she often became evasive or vacillated by asking the question to be repeated or suggesting her earlier statement is not what she meant.

At times, she seemed to be strategizing how best to answer a question so as to minimize the discrepancy. Her evidence at times was disingenuous, if not deceptive. [ 83 ] She gave conflicting versions of when she froze. She initially testified that she froze when the accused was massaging her breasts and moving his hands down her body towards her buttocks. It was put to her in cross-examination that she had told the police that she froze when the accused inserted his finger in her vagina.

She indicated she preferred the account she provided to the police and then she adopted the position that she was not being misleading and that she did freeze, but may have said she froze at the wrong time. This is not insignificant given her evidence is that she has a great deal of difficulty recalling or explaining what was occurring when she froze or disassociated, both of which may have occurred around the same time. [ 84 ] Further, her description of being frozen was problematic. She initially testified that she froze, which meant she was unable to move or form words.

However, it was clear in her testimony of the sexual activity that she did speak to the accused while it was ongoing.

When challenged on this point that she was not frozen and she could speak, the complainant adopted the position that it depends on one's definition of "frozen." When confronted with her earlier description of "frozen," being unable to move or form words, she then adopted the position that there were times she could move and talk, but it felt like she was not frozen and could not form words. [ 85 ] The complainant testified the accused did not ask prior to any stage of the sexual activity if the sex was okay with her.

However, in her statement to the police, when asked by the officer if the accused ever asked her about vaginal intercourse or anal intercourse, she responded, "I don't remember about vaginal," and with respect to anal intercourse, she indicated, "I don't remember being asked. I just remember, you know, going near me and it wasn't going to work so I think I might have moved or grabbed his penis to move it away.

I have no memory of anything else ever being asked." When pushed on cross-examination on how, if she was disassociated through much of the incident, she could be certain that something did not happen, her response was she is unable to explain how she can say things did not happen. [ 86 ] When she returned to the bedroom after the sexual activity, she believes there may have been some small talk, but does not recall whether there was any physical contact. She testified she does not remember cuddling with the accused after the sexual activity.

However, she acknowledged that in her statement to the police when she was asked if she and the accused had cuddled after the sexual activity, she responded "I wanted to go so bad, but he wanted to cuddle with me on the bed and again I just like -- I just wanted to be his friend and, you know, everything, all logic, went away so then, yeah. We chatted a bit and I finally reached the point where I could -- could leave." [ 87 ] She testified she was concerned for her safety when the assault commenced as no one knew where she was.

However, she also testified that just prior to going to the bed and breakfast, she had gone to her hairdresser and told her hairdresser that she was going to meet with the accused. [ 88 ] Lastly, there is independent evidence which confirms the complainant's evidence is unreliable whether due to her poor memory or her being intentionally deceptive. She indicates that she received from the accused a dieta setting out the proper practice for Ayahuasca ceremony.

She indicated she felt safe going for a massage at the bed and breakfast on March 5 as the dieta set by the accused prohibited physical intimacy for some time after the ceremony which would have included the period of March 1, the day of the ceremony, beyond March 5. However, the evidence shows the accused only ever employed one dieta and this dieta provided by the accused to his clients only requires restrictions relating to intimacy for one day after the ceremony.

The complainant maintained this was not the dieta she had received from the accused, yet independent witnesses confirmed that the accused employs and distributes a dieta to his clients providing a one-day restriction after the ceremony. The evidence also confirmed the dieta providing for a one-day restriction was forwarded in a common email to numerous clients including the complainant. iv) Verdict

[ 89 ] The complainant's evidence leaves me with a great deal of uneasiness. After assessing the complainant's testimony including the numerous contradictions, inconsistencies, uncertainties, and lapses in memory and the manner in which she responded to questions, I have concerns with her reliability and credibility.

I am uncertain whether she was intentionally misleading the Court or she herself is not sure what occurred at the bed and breakfast on March 5. [ 90 ] Ultimately, what is critical is that the Court is unable to conclude that the complainant's evidence is sufficiently reliable or credible to meet the Crown's burden to establish beyond a reasonable doubt that she did not consent to the sexual activity at the bed and breakfast and the accused sexually assaulted the complainant on March 5. [ 91 ] In the result, after concluding that I am unable to place much reliance on the accused's testimony due to significant credibility issues, I must ask myself whether, on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

As I have concluded I am unable to place much weight on the evidence of the complainant due to her lack of reliability and credibility, I am uncertain whether she consented to the sexual activity at the bed and breakfast on March 5, 2019. In effect, after careful consideration of all the evidence, the Court is unable to decide whom to believe or determine what occurred at the bed and breakfast and whether the sexual activity was consensual. Accordingly, the accused must be acquitted on Count 1.

Count 2: The Alleged Assault of March 29, 2019 [ 92 ] Subsequent to the March 5 encounter, the parties continued communicating with one another. All communications were positive and, as the complainant indicates, "fluffy," as she wanted to remain on friendly terms with the accused. The accused was invited and attended a birthday gathering for the complainant at her residence. [ 93 ] As well, the two arranged for the accused to attend the complainant's residence on March 29, 2019, for a Reiki healing session which the complainant offered professionally to clients.

It was a professional appointment whereby the complainant had the accused fill out consent forms, performed Reiki on the accused, and the accused paid for the service. After the Reiki session had concluded, there was sexual contact between the accused and the complainant. Again, their accounts of what transpired differ.

i) The Complainant's Account [ 94 ] According to the complainant's testimony, after she concluded performing the Reiki, she allowed the accused a few moments to gather himself. A short time later, she asked him, "Did anything come up for you in the session?" and his response was something to the effect that something came up and he pointed to his penis. She does not remember where this happened or whether the accused was standing up at the time. She does not remember how she responded to his comment or gesture. [ 95 ] The next thing she remembers is the accused standing behind her and kissing her neck.

She does not remember if his hand was touching her breast or about her breast area, but knows that at some point, his other hand went down her pants. At this point, she believes she froze. The next thing she remembers is him putting his fingers in his mouth and suggesting that they go into her bedroom. She says she responded, "No," and told him she was scheduled to meet her sister.

The sexual activity came to an end at that point, and shortly thereafter the accused collected his belongings, said goodbye, and left. [ 96 ] The complainant testified that she did not disassociate during the incident, yet similar to the March 5 incident, she has limited memory of the incident and is unable to indicate what happened at critical times. ii) The Accused's Account [ 97 ] The accused acknowledges that the two engaged in sexual activity after the Reiki session, but maintains it was consensual.

According to the accused, during the Reiki session, the complainant rubbed his root chakra near his pelvis approximately one inch from his penis and, while she continued to rub him there, he became excited. The accused testified that, after the Reiki session, he was given some time to organize himself. A short time later, the complainant asked him, "Did anything come up for you?" in what the accused described to be in a "snickering" way. The accused advised the complainant that he had become aroused during the massage.

They then embraced. [ 98 ] According to the accused, they looked at each other and naturally came together and embraced. They then engaged in kissing with the accused kissing the complainant and the complainant kissing him back. The accused then started to kiss the complainant's neck and she tilted her head to the side to further expose her neck. Eventually the accused was behind the complainant, at which point, he put his left hand on her right breast and the other hand by her navel.

He asked her if she was okay with this, to which the complainant answered, "Yes." [ 99 ] He then moved his hand further down and rubbed the genital area over her pants. While this was occurring, she was rubbing her buttocks into his penis in a grinding motion. The accused testified that he asked the complainant if she was okay with him putting his hands down her pants. He does not recall if she responded verbally, but indicated the complainant continued pushing her buttocks into his penis, rubbing it as she ground her hips. This continued as he had his hand down her pants.

The accused indicates the complainant was very excited and very wet in her vagina. The accused continued kissing the complainant's neck and she was tilting her head to the side to expose her neck. At some point, he asked the complainant if they could go to her bedroom and she indicated she was scheduled to meet her sister. The sexual interaction ended at this point and the accused collected his belongings and departed. [ 100 ] Subsequent to this event, the relations between the accused and the complainant remained positive and friendly until the beginning of May.

At that time, the complainant advised the accused that she was back with her boyfriend and the accused indicated to the complainant that he had done what he could for her and that they should pursue different directions. Shortly after that, the complainant reported the two alleged assaults to the police. iii) Assessing the Evidence [ 101 ] In assessing this allegation, the Court must apply the same legal principles as set out above to determine whether the Crown has

proven beyond a reasonable doubt that the accused sexually assaulted the complainant after the Reiki session. As well, in its efforts to determine what occurred on March 29, the Court, in assessing the credibility of each witness, is entitled to consider the totality of the evidence given by each witness in the trial, R. v. P.E.C. , 2005 SCC 19 and R. v. Nduwayo , 2008 BCCA 255 .

a) Assessing the Evidence of the Accused [ 102 ] For the many reasons indicated earlier, I have little confidence in the credibility of the accused and am unable to believe his account of what occurred on March 29. As with his evidence relating to the first count, he was prone to obfuscate and give vague answers to questions to avoid providing a position on rather straightforward questions. By way of example, he was asked in cross- examination how long it took for him to walk to the complainant to embrace her when she was a few steps away from him.

He responded it could have taken him a couple of minutes or it could have taken him an hour to walk that far. It was extraordinary how difficult it was for the accused to convey what occurred during the sexual interaction in what would appear to have been an incident occurring in a relatively short timeframe.

b) Assessing the Evidence of the Complainant [ 103 ] Similar to the alleged assault of March 5, the Court must assess whether the complainant's account of what occurred is sufficiently credible and reliable for the Court to conclude beyond a reasonable doubt that the accused sexually assaulted the complainant on March 29. [ 104 ] Although the complainant testified she did not disassociate during the events of March 29, she has a limited memory of the incident and is unable to indicate what happened a critical times. She did indicate she did freeze when the accused put his hand down her pants.

However, her memory with respect to what unfolded between the end of the Reiki session and the accused putting his hand down her pants had a large gap and she does not remember the order of events. [ 105 ] Critical to the Court's assessment of this allegation is what occurred immediately after the complainant asked the accused if anything had come up. The complainant does not remember what happened in the moment subsequent to her asking the accused, "Did anything come up for you?" and the accused pointing to his penis.

She remembers him standing behind her at some point later, but does not know how the two got to this position or what was said. [ 106 ] The accused indicates that after this apparent flirting as to what may have come up, the two engaged in a mutual embrace and carried on with mutual physical contact until the complainant indicated she had to meet her sister. It is possible the interaction unfolded in this manner. [ 107 ] As well, the complainant acknowledged she froze when the accused put his hand down her pants and she does not remember what occurred until later when the accused had his fingers in his mouth.

It is not clear to me whether she froze earlier in the encounter, but as indicated, she does not remember how the accused came to be behind her or what occurred prior to the accused placing his hand down her pants; only that the accused was behind her kissing her neck with his arms were around her.

I am unable to rule out the possibility that, just prior to the complainant's memory of re-engaging in the incident with the accused behind her, the accused had asked her if he could touch her and put his hand down her pants and she responded positively. iv) Verdict [ 108 ] Similar to the concerns the Court has with respect to the first alleged assault, the complainant's memory is not good, leaves significant gaps, and she is unable to recall what occurred at critical moments during the interaction.

This results in her evidence being unreliable and, ultimately, insufficient for the Court to conclude beyond a reasonable doubt that there was an absence of consent on the part of the complainant and that she was sexually assaulted by the accused on March 29. [ 109 ] As with the Court's conclusions relating to the allegation of March 5, I am unable to decide whom to believe and am unable to determine what occurred after the Reiki session concluded on March 29. Accordingly, I must acquit the accused on Count 2. (REASONS FOR JUDGMENT CONCLUDED)