Her Majesty the Queen - v. -, 2021 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2021 SKPC 36 Date: July 28, 2021 Information: 991143745 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - N.W. Ms. Kristen Hubbard For the Crown Ms.

Rebecca Crookshanks For the Accused PUBLICATION RESTRICTION : Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] N.W. is charged with sexually assaulting the complainant, S.P. There is no dispute that a sexual encounter occurred between

these two individuals. The issue is consent – actual or ostensible. S.P. testified that she did not consent to the sexual encounter; that she specifically told N.W. to stop; and that she did so several times during the encounter. N.W. testified that he and S.P. agreed to meet in her room; that she initiated a sexual encounter with him; and that he believed that she was consenting throughout their encounter. Complicating matters is the fact that both of these individuals were barely 14 years of age at the time.

As is evident by their testimony, they were both very young and very inexperienced. [ 2 ] Having considered the evidence in these proceedings, I do not know whom to believe and thus I am left in doubt by the Crown’s evidence. Because this doubt involves an essential element of the offence – namely, consent – the Crown has not proven its case. THE EVIDENCE [ 3 ] A trial was conducted on June 7, 2021. The Crown called three witnesses; the complainant, and two youth workers from Eagle’s Nest (Mr. Shaun Crawford and Ms. Katrina Peters). N.W. testified on his own behalf.

Eagle’s Nest is a youth care facility in Prince Albert, Saskatchewan and the location where all relevant events occurred. Comments on the evidence : [ 4 ] As noted, there is no dispute that a sexual encounter occurred sometime between 12:30 and 2:30 a.m. on October 18, 2020. Only the accused and the complainant were present at the time that encounter occurred, and these two people provided very different descriptions of what happened. I will examine the evidence of both S.P. and N.W. in some detail. However, before I do, I will begin by recounting Mr. Crowford’s and Ms.

Peter’s testimony because I believe it provides certain evidentiary benchmarks against which the testimony of both S.P. and N.W. may be compared. I am mindful that people seldom remember the same events exactly the same. However, both consistency and inconsistency with uncontradicted external events can provide a helpful lens through which to assess the credibility of a witness and/or the reliability of that person’s evidence. [ 5 ] As I have noted, S.P. and N.W. were only 14 years of age at the time of the incident and not much older when they testified.

Just how very young and inexperienced they are was evident in their testimony. Shaun Crawford’s Testimony : [ 6 ] Shaun Crawford is a youth care worker at Eagle’s Nest in Prince Albert. On October 17, 2020, Mr. Crawford began his shift at 11:00 p.m. He was on the night shift and was working with a co-worker. [ 7 ] Mr. Crawford testified that around midnight he saw N.W. come out of his room and get a drink of water. Mr. Crawford described N.W. as amicable and polite. Mr.

Crawford said he observed N.W. speaking with two youth (both girls) on the floor for approximately 15 minutes and then N.W. went back to his room. Mr. Crawford continued with his work. He did a room check after midnight. Mr. Crawford estimated that at 12:30 he looked in N.W.’s room and thought he saw N.W. sleeping in his bed. [ 8 ] At approximately, 1:00 a.m., Mr. Crawford’s coworker conducted another room check. When she returned, she expressed concern that N.W. might not be in his room. As a result, Mr. Crawford went to check N.W.’s room and discovered that he was not there.

Clothing had been stuffed and placed in N.W.’s bed to look like a person was sleeping. [ 9 ] After discovering that N.W. was not in his room, Mr. Crawford began searching for him. He began by looking in every room in the facility. If the room was occupied and the occupant was awake, he told the occupant that N.W. was missing and asked if they had seen him. If the occupant was asleep, Mr. Crawford did a visual check, including looking in closets. In conducting this search, Mr.

Crawford testified that he specifically went to S.P.’s room; that she was awake at the time; that he spoke with her; that he told her that N.W. was missing; and that he asked her if she had seen him. Mr. Crawford testified that S.P. said “no” – and told him that she did not know where N.W. was. Mr. Crawford also understood that his co-worker did the same thing when she was checking the building for N.W. and asked a similar question of S.P.

[ 10 ] Mr. Crawford then began searching the grounds and external buildings. N.W. could not be located. At about 2:00 a.m., Mr. Crawford decided that he needed to alert the authorities – he called his supervisor and the police. As Mr. Crawford was calling Mobile Crisis, two of the youth (2 girls) in the facility – aware that staff were searching for N.W. (and presumably realizing that things were getting serious) – approached Mr. Crawford and told him that N.W. was downstairs in S.P.’s room. [ 11 ] Mr. Crawford then went downstairs to S.P.’s room. At this point, it was approximately 2:30 a.m. As Mr.

Crawford approached the door to S.P.’s room, he thought he could hear another person’s voice in her room – a person other than S.P. He testified that he knocked on her door, opened it without waiting for a response, and looked inside. When he did, Mr. Crawford saw two things – he saw S.P. at one end of her bed and movement at the other. [ 12 ] Mr. Crawford testified that S.P. was awake when he entered the room, but it looked like she might have been trying to sleep. She was under the covers and only her shoulders were exposed. Mr.

Crawford testified that she appeared to be wearing a shirt of some kind but otherwise he could not see what she was wearing. [ 13 ] Because he had seen movement at the foot of S.P.’s bed, Mr. Crawford walked over to the bed and removed the covers from the bottom portion. When he did, Mr. Crawford saw N.W. lying at the foot of S.P.’s bed. He was curled up and wearing shorts. Mr. Crawford told him to gather up his “stuff” and get out of S.P.’s room. [ 14 ] Finally, Mr. Crawford testified that S.P. did not say anything to him when he found N.W. in her bed.

Furthermore, the two youth did not say anything to each other. N.W. just grabbed his stuff and quickly ran upstairs to his room. Katrina Peter’s Testimony : [ 15 ] Ms. Peters testified that S.P. approached her on October 25, 2020 and asked to speak with her. When they spoke, S.P. told her that a sexual encounter occurred between her and N.W. the night he was found in her room and that this encounter was non-consensual. Ms. Peters testified that S.P. was anxious and nervous, that she was crying and emotional when she described the events to her. [ 16 ] In cross-examination, Ms.

Peters acknowledged that S.P. said she was concerned that she might be pregnant when they spoke on October 25, 2020. S.P.’s Testimony : [ 17 ] S.P. testified that she had known N.W. for about a month prior to the incident. There were both living in the same group home. [ 18 ] S.P. testified that about 12:40 or 1:00 a.m. on October 18, 2020, N.W. came downstairs, opened her door, and then came into her room. She was the only person in the room prior to N.W. arriving. S.P. testified that N.W. walked across the room, got into her bed, and got on top of her.

S.P. testified that, as N.W. started getting into her bed, she asked “what are you doing?”. She said N.W. did not respond – in fact, she testified that he did not say anything during their entire encounter. [ 19 ] S.P. testified that, when N.W. got into her bed, he started taking her pants off. She was wearing leggings. S.P. testified that, when he started taking her pants off, she asked him “what the hell are you doing?” She said there was no response from him. S.P. testified that she then told him to “stop”.

Rather than stopping, S.P. said N.W. got on top of her, used his knees to force open her thighs, and began having intercourse with her. [ 20 ] S.P. testified that she said “stop” several times (about six times) but he did not stop. S.P. testified that she did not consent to having sex with N.W. S.P. estimated that he was inside her for approximately 15 minutes and that he didn’t say anything that entire time. She testified that he ejaculated, and he was not wearing a condom.

[ 21 ] S.P. testified that the encounter ended when Shaun (one of the youth workers) showed up at her room. N.W. quickly moved to the foot of her bed when Shaun came into her room. She said that Shaun noticed N.W. moving and found him in her bed when he pulled back the covers. S.P. testified that Shaun then took N.W. out of her room. When asked, S.P. estimated that it was about 2:30 a.m. when Shaun came to her room and found N.W. [ 22 ] S.P. testified that she did not report the incident to anyone for several days. She said she first reported the incident to Katrina Peters about 8 days after it happened.

She testified that she did not report the incident to anyone prior to this because she was scared that “he” (N.W.) “would do something” to her if she did. [ 23 ] In cross-examination, S.P. acknowledged that she spoke with Nolan, a senior member of the staff at Eagle’s Nest (youth facility), about what happened in her room more than once. The first occasion (when S.P. spoke with Nolan) was the day after the incident.

S.P. acknowledged that, when she spoke with Nolan, she was not always truthful with him about what happened in her room with N.W. [ 24 ] In cross-examination, S.P. acknowledged that she had a conversation with N.W. earlier in the day about him coming to her room that night. However, she emphatically denied making an “arrangement” for him to come to her room. In cross-examination, S.P. acknowledged that she told Nolan that she had made an arrangement with N.W. for him to come to her room that night.

However, S.P. said that this was not true – that she had not arranged with N.W. for him to come to her room that night. When asked why she lied to Nolan, she said she “didn’t want him (N.W.) to do something to her” – like “come down to her room again” if she told someone the truth about what happened.

S.P. acknowledged that, when she spoke with Nolan, she told him that she and N.W. were just lying in her bed and that nothing happened. [ 25 ] In cross-examination, S.P. also acknowledged that, after the incident, several people in addition to Nolan (both staff and other youth) asked about N.W. being in her room and whether anything happened (whether they had sex). S.P. said she said “no” each time. However, S.P. acknowledged that, a few days later, when she was late for her period, she spoke with one of the other girls (Tamera) at Eagle’s Nest about what happened when N.W. came to her room.

S.P. acknowledged that she told Tamera that she had sex with N.W. [ 26 ] S.P. also acknowledged that she spoke with Nolan a second time a few days after the incident. S.P. acknowledged that, during their conversation, Nolan told her that he had heard that she may have had sex with N.W. and that she was concerned she might be pregnant. During this conversation, Nolan specifically asked her if she was pregnant. She said that she did not think she was but agreed to have a pregnancy test (together with tests for sexual transmitted infections).

During their conversation, S.P. told Nolan that she had sex with N.W. but told him that it was with her consent. She told Nolan that she lied to him during their previous conversation because she had sex and had not used protection. This conversation took place around October 22, 2020 – about four days after the incident. [ 27 ] In cross-examination, S.P. agreed that the first time she told staff that the sexual encounter with N.W. was non-consensual was during the conversation she had with Katrina Peters on October 25, 2020. S.P. stated that she told the truth to Ms.

Peters because she was uncomfortable continuing to lie. [ 28 ] In cross-examination, S.P. confirmed her prior testimony wherein she stated her belief that N.W. came to her room about 12:40 or 1:00 a.m.; that N.W. left her room around 2:30 a.m. (when Shaun found him hiding in her bed); and that the sexual encounter lasted approximately 15 minutes. Counsel pointed out to S.P. that N.W. was in her room for almost two hours. S.P. responded by stating (for the first time) that, about 5 minutes after the sexual encounter ended, N.W. had sex with her again and this time the sexual encounter lasted for about 45 minutes.

S.P. stated the second sexual encounter ended when Shaun came in the room and took N.W. away. [ 29 ] S.P. estimated that there was about five minutes between the first sexual encounter and the second. When asked what happened during this period, S.P. testified that she asked N.W. “what the hell” he was doing and told him to “get out”. She said he told her “to be quiet”. S.P. testified that, when N.W. got on top of her a second time, she tried to push him off her; but he grabbed her hands and held her down. She estimated the second sexual encounter lasted approximately 45 minutes.

S.P. stated that she did not consent to either sexual encounter. [ 30 ] In response to a question from defence counsel as to what happened the rest of the time N.W. was in her room, S.P.’s answer was vague – essentially she said that sex lasted the whole time he was in her room and that she did not know what time N.W. came to her room or when he left – other than the sexual encounter ended when Shaun came in the room and took N.W. away – implying that there was essentially no time when N.W. was not sexually assaulting her when he was in her room.

[ 31 ] In cross-examination, S.P. testified that she did not remember Shaun (or anyone else) coming to her room (other than when Shaun found N.W. hiding in her bed). S.P. denied that anyone came to her room and spoke to her while N.W. was in her room other than when Shaun found N.W. hiding in her bed. She specifically denied that Shaun came to her room; that he told her that N.W. was missing; that he asked her if N.W. was in her room; and that she told Shaun that she did not know where he was. [ 32 ] S.P. told defence counsel that, when Shaun came to her room, he knocked on her door before he came in.

S.P. said she pulled up her leggings when she heard someone knocking on the door. She was able to do so quickly because her leggings were still on her legs. S.P. stated that she was not wearing a shirt – only her bra – when Shaun came into her room. [ 33 ] In cross-examination, S.P. stated that she went to sleep around 9:00 p.m. on October 17, 2020; that she was sleeping when N.W. came to her room; and she only woke up when he began climbing on her bed.

When asked how she knew what time it was when N.W. came to her room (having previously stated he came to her room between 12:40 or 1:00 a.m.), S.P. became defensive with counsel and stated that she did not know what time he came to her room; that she just “guessed” because the night staff were on duty. N.W.’s Testimony : [ 34 ] N.W. testified that in October of 2020 he was residing at Eagle’s Nest facility in Prince Albert. N.W. told the Court that Eagle’s Nest had rules that the youth were required to follow.

These rules included (in N.W.’s words) that the youth were not permitted to “touch each other”; or to “bother anyone’s personal space”; and they had to “keep your hands to yourself”. [ 35 ] N.W. testified that around midnight on October 17, 2020, he and S.P. had a conversation upstairs on the couch. During this conversation, he and S.P. made a plan to meet in her room later that night. The plan involved N.W. stuffing his bed with his clothes so that it would look like he was sleeping when staff were doing their rounds. N.W. waited until the staff were distracted and then he snuck downstairs to S.P.’s room.

N.W. was keeping track of the time because he knew that going to S.P.’s room was against the rules. [ 36 ] N.W. testified that he went downstairs about 1:00 a.m. When he got downstairs, he knocked on S.P.’s door and asked if she was sleeping. N.W. testified that she said “no”. N.W. then asked S.P. if he could lie down with her and she said “yes”. N.W. then got in S.P.’s bed. [ 37 ] N.W. testified that, soon after he got into bed, S.P. got on top of him and started kissing him. N.W. said that S.P. then started touching his “privates” (meaning his penis).

N.W. testified that S.P. then started “blowing him off” (meaning that she touched his penis with her hands and mouth). He said that S.P. then took his shorts off and then he took her leggings off. At that point, they were lying side by side in her bed. N.W. told Court that he then got on top of S.P. and they began having sex. N.W. told Court that he was not wearing a condom and that the sexual encounter lasted for about 15 minutes. [ 38 ] N.W. testified that, after they were done having sex, they lay in bed, cuddled and talked until Shaun came in the room and found him.

N.W. told Court that Shaun came in the room about 5 minutes after sex had concluded. When Shaun found him in N.W.’s bed, Shaun told him to get out of S.P.’s room and go back to his room. [ 39 ] In response to a question from counsel, N.W. told Court that at no time did S.P. tell him to stop (touching her in a sexual manner). N.W. specifically denied holding S.P. down or taking any action contrary to her wishes. N.W. testified that he did not ask S.P. if she wanted to have sex and she did not ask him. Simply put, N.W. and S.P. did not have any conversation about what they were doing.

When asked by counsel, what made him think that S.P. wanted to have sex with him, N.W. was unable to answer other than to say “she told me to meet her … I thought she wanted it”. [ 40 ] In cross-examination, N.W. confirmed that, when he and S.P. discussed him coming to her room that night, they did not specifically discuss having sex. [ 41 ] Counsel then asked N.W. the following questions respecting the steps he took to confirm S.P.’s consent to intercourse: Counsel: At no point did you confirm or take any steps to confirm that she wanted to have sex with you. Is that fair to say?

N.W.: Yeah (hesitantly spoken) Counsel: You were asked if she told you to stop at any point and you said she didn’t tell you to stop. And is it fair to say that you tookthat to mean that she was consenting? N.W.: Yes. Counsel: And then similarly, you were asked if she tried to push you off or fight you and you said no. Once again, it sounds like youtook that to mean that she also was consenting because she didn’t fight you. N.W.: Yes. … Counsel: And I believe .. you had said that you were getting it on and you clarified that you were sticking your penis in her vagina. N.W.: No. Counsel: Pardon me. N.W.: No.

Counsel: Well. You had told my friend when she asked you that when you said you were getting it on that you meant that was yousticking your penis in her vagina. Is that not true? Correct? N.W.: [Inaudible] Counsel: OK. But you did say that to her. You agree with that? About 10 minutes ago you said that. N.W.: [Inaudible] Counsel: Ok. So you’re saying now that you never stuck your penis in her vagina? N.W.: Oh. I did. Counsel: Ok. And .. but it sounds like the way that happened was it was you sticking your penis in her vagina. Correct? N.W.: No. Counsel: So. When you say no, what do you mean? N.W.: Like.

She came on me first. That how it started. And she wanted it. Not me. Counsel: Ok. But you’re assuming that she wanted it. You never asked her that. Did you? N.W.: Yeah. [42] The above exchange between N.W. and Crown Counsel illustrates the challenge of questioning a child about difficult subjectslike the communication that occurs (both verbal and non-verbal) between individuals engaging in an intimate act like sex, let alone legalconcepts like informed consent and the need for reasonable steps to ensure continuing consent.

ANALYSIS [43] Two cases of the Supreme Court of Canada are instructive in understanding the essential elements of sexual assault. Thesecases are R v Ewanchuk, (SCC), 1999 SCC 711, [1999] 1 SCR 330 [Ewanchuk] and R v Barton, 2019 SCC 33, 376CCC (3d) 1 [Barton]. The actus reas (the physical element) of sexual assault comprises three elements; (1) touching or physical contact;(2) the sexual nature of that contact; and (3) the absence of consent. See: Ewanchuk at para. 25; Barton at para. 87.

The mens rea ofsexual assault comprises two elements: (1) intention to touch or have physical contact; and (2) knowledge of, or wilful blindness as to, alack of consent on the part of the person touched. See: Ewanchuk at para. 42; Barton at para. 87. [44] It is a fundamental principle of criminal law that the Crown must present evidence to the Court to establish each element ofthe offence and that such evidence must provide proof beyond a reasonable doubt. If the Crown cannot discharge this burden, I mustacquit N.W. If there is evidence inconsistent with guilt and I accept that evidence, I must also acquit.

If, after hearing all the evidence, Iam left in reasonable doubt by it, I must again acquit. In a criminal trial, the burden never shifts from the Crown to prove its case and todo so beyond a reasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR 742 at pages 757-58.

[ 45 ] As I have already noted, there is no dispute that there was physical contact between N.W. and S.P., that this contact was sexual in nature, and that N.W. intended that contact to occur. The issue is consent – either actual or ostensible. The defence argues that S.P. was not truthful when she first spoke with staff at Eagle’s Nest about the incident and that she is not being truthful with the Court when she claims she did not consent.

Counsel argues that, even if I don’t believe N.W., the evidence I heard should at least raise a reasonable doubt on the issue of consent. [ 46 ] Consent is relevant when considering both the actus reus and mens rea of the offence of sexual assault. Consent as part of the actus reus of the offence, involves the question of whether or not S.P. in her mind wanted the sexual activity to take place. As such, the focus at this stage is on her subjective state of mind. See: Ewanchuk at para. 30 .

For the second stage, the dominant issue is whether or not N.W. honestly believed that the complainant had affirmatively communicated her consent by means of her actions or her words. As such, the focus at the second stage is on N.W.’s state of mind. Actus Reas - Did S.P. voluntarily agree to the sexual activity that occurred? [ 47 ] In her testimony, S.P. was adamant that she did not consent to the sexual encounter that occurred. S.P. testified that, while she spoke with N.W. about him coming to her room, she denied ever making a specific plan for him to come to her room that night.

She testified that she went to bed at around 9:00 p.m. and woke when N.W. came into her room. She testified that she asked him “what the hell are you doing” when he started getting into her bed; that she told him to “stop” more than once; that he removed her pants without her consent; and that he used force to have sexual intercourse with her. [ 48 ] Simply put, if I accept S.P.’s testimony then there clearly was no consent on her part and this element of the offence is proven. See: Ewanchuk at para.31 or Barton at para. 89 .

Was S.P. being truthful ? [ 49 ] Defence counsel observed that S.P. lied when she first talked about the incident with staff. When S.P. was first questioned about the incident by Nolan, she lied – she told staff that she invited N.W. down to her room; that they lay in her bed for about 45 minutes; and that they did not have sex. The second time she spoke with Nolan about this incident, she lied again. This time, she told Nolan that a sexual encounter occurred but told him that it was consensual. In my opinion, these lies did not, on their own, undermine S.P.’s credibility.

Victims of sexual assault have the right to determine how, when or if ever they disclose abuse. See: R v D.(D.) , 2000 SCC 43 , [2000] 2 SCR 275, at para. 65 . If S.P. wanted to delay reporting or decline to report at all, she had no alternative but to lie to Nolan when he confronted her about what happened. As a result, the fact she lied to him is material but alone does not give rise to an adverse inference against her credibility. However, there were a number of other anomalies with S.P.’s testimony that did significantly undermine her credibility. [ 50 ] Mr.

Crawford testified that, when he discovered that N.W. was not in his room, he immediately began searching all the rooms in the facility. Mr. Crawford specifically recalled knocking on S.P.’s door sometime between 1:00 and 2:00 a.m. and speaking with S.P. He testified that she was awake at that time; that he spoke with her; that he asked her if she knew where N.W. was; and that she said no – that she did not know where he was. I find Mr. Crawford’s testimony to be clear, cogent and compelling.

It is both reasonable and logical that staff would conduct a room by room search once it was discovered that one of the youth was missing and it is improbable in the extreme that staff would not have checked S.P.’s room and spoken with her if she was awake. I find that Shaun did check S.P.’s room prior to the time when he found N.W. hiding in her bed. I also find that N.W. was in S.P.’s room when Shaun checked the room and spoke with her. S.P.’s testimony is wholly inconsistent with Shaun’s testimony.

Furthermore, it is improbable in the extreme that N.W. could have avoided detection by Shaun during this room check without S.P.’s cooperation. This unexplained inconsistency with a known external fact undermines S.P.’s credibility. Furthermore, the circumstances lead to a compelling inference that S.P. helped N.W. hide in her room when staff were looking for him. Such conduct would be inconsistent with or at least hard to explain in the face of her claim of non-consent. [ 51 ] S.P. testified that she went to sleep at 9:00 p.m. and only spoke with staff when Shaun came in the room at 2:30 a.m.

When asked when N.W. came to her room in direct examination, she was clear and precise – she said that N.W. came to her room between 12:40 and 1:00 a.m. – a fact that was consistent with N.W.’s testimony. However, in cross-examination, when S.P. was asked how she knew what time N.W. came to her room, she became defensive and told the Court that she just “guessed” because the night staff were on duty. However, she did not explain how she would have known that the night staff were on duty if she went to bed at 9:00 p.m. and was sleeping the whole time.

On the other hand, S.P.’s awareness that the night staff were on duty is consistent with N.W.’s testimony that he and S.P. had a conversation upstairs on the couch around midnight – after the night shift had started. This internal inconsistency in S.P.’s testimony undermined her credibility.

[ 52 ] Initially in her testimony, S.P. agreed that N.W. came to her room between 12:30 and 1:00 a.m. She also agreed that he left her room around 2:30 a.m. when Shaun found him. Finally, she also stated and later agreed when questioned that the sexual encounter lasted for about 15 minutes. However, when defence counsel began questioning S.P. about what happened the rest of the time, both S.P.’s demeanor and evidence changed. S.P. stated, for the first time, that she had been sexually assaulted twice, with a second assault occurring about 5 minutes after the first assaulted had ended.

She also stated that the second assault lasted about 45 minutes, until Shaun came to her room at 2:30 and discovered N.W. under her covers. [ 53 ] While demeanor is a poor indicator of truthfulness, the significant and unexplained change in S.P.’s testimony during cross- examination was troubling. It is improbable that S.P. would have told Court in direct examination that the sexual encounter lasted approximately 15 minutes when, in reality, the encounter lasted over one hour and consisted of two separate assaults.

S.P.’s revised evidence was more consistent with fabrication intended to avoid the question of what she and N.W. did in her room after the sexual encounter concluded – a question she avoided by changing her testimony. [ 54 ] In the face of these inconsistencies in S.P.’s testimony, I find her credibility is compromised.

While she might have told the truth or some version of the truth when she said she did not consent, I am unavoidably left with reasonable doubt by her own testimony. [ 55 ] Furthermore, I have N.W.’s description of events, which I find to be both internally logical and consistent with the events described by Shaun. Events could have happened as N.W. described them. There were no obvious inconsistencies in his evidence except with S.P.’s version of events. [ 56 ] After considering the evidence, I find that I am left in a reasonable doubt as to whom to believe.

I do not know whether or not S.P. was being truthful with the Court when she stated she did not consent to the sexual activity that occurred. At this stage in the enquiry, the question is purely one of credibility. But, because I have doubt as to whether or not she is being truthful on the issue of consent, the Crown has not proven its case. Mens Rea – Did N.W. know S.P. was not consenting or was he wilfully blind to the absence of her consent when the sexual activity occurred? [ 57 ] The Crown argues that, even if I accept N.W.’s evidence, his evidence is not inconsistent with guilt.

The Crown notes that N.W. and S.P. did not talk about what they were doing either before or during the sexual encounter. In either description of the events, N.W. did not ask S.P.’s permission to have intercourse with her. The Crown disputes N.W.’s evidence that S.P. kissed him and engaged in oral sex on him. However, even if I accept that these things may have occurred, the Crown argues that N.W. took no steps to confirm that S.P. was consenting to the further act of intercourse.

The Crown argues that, because N.W. is unable to identify any steps that he took to confirm S.P.’s consent to intercourse, his actions in having intercourse with her were an assault – or, at least, the defense of honest but mistaken belief in consent is unavailable to him pursuant to s. 273.2 (

b) of the Criminal Code . [ 58 ] In my opinion, the Crown’s argument is flawed. While N.W. could not articulate any means by which he attempted to confirm S.P.’s consent, in my opinion, this was the result of the limits of his ability to communicate because of his age and inexperience. He simply did not have the words to describe non-verbal communication or the ability to organize his thoughts around concepts like communicated and continuing consent.

However, when I examine N.W.’s evidence and, if I accept it to be true (and I have reason to do so), then in my opinion, there is an arguable case that N.W. could have reasonably believed that S.P. was consenting to all aspects of their sexual encounter, including intercourse. If I accept N.W.’s evidence (and I have reason to do so), then there is evidence that S.P. was an active and equal participant in all aspects of the encounter that occurred and her voluntary consent would have been actively communicated to N.W. through her participation.

CONCLUSION [ 59 ] For the foregoing reasons, I am not satisfied that the Crown has proven beyond a reasonable doubt that a sexual assault occurred on October 18, 2020. As a consequence, I find N.W. not guilty. Dated this 28th day of July, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan.

__________________________ S.D. SCHIEFNER, J