HER MAJESTY THE QUEEN v. ANDREW ORSER, 2018 NBPC 2

CANADA PROVINCE OF NEW BRUNSWICK 2018NBPC02 PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -and- ANDREW ORSER BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF DECISION: March 23, 2018 APPEARANCES: Patrick Wilbur, on behalf of Her Majesty the Queen Wesley McIntosh, on behalf of the Accused No information shall be published in any document or broadcasted or transmitted in any way which could identify the victim or her mother in these proceedings pursuant to s. 486.4 of the Criminal Code . I. Overview

[ 1 ] The accused stands charged with sexually assaulting A.B. Credibility of the complainant is the central issue before the Court. On the singular facts of this case, what, if anything, does evidence that the complainant was best friends with the accused’s ex-girlfriend tell the trier of fact about the sexual assault allegations? The answer is simple - nothing. II. Introduction [ 2 ] The accused, Andrew Orser (“the a ccused”) is charged that between July 1 st , 2016 and July 31 st , 2016, in Saint John, New Brunswick, he committed the indictable offence of sexual assault on A.B. contrary to s. 271(1) (

a) of the Criminal Code . III. Evidence [ 3 ] The Crown called the following witnesses at trial:

a) Constable Kerrigan;

b) C.D. (A.B.’s mother); and

c) A.B. (the complainant). [ 4 ] The accused did not testify. No defence witnesses were called. [ 5 ] I will neither repeat nor summarize the evidence of each witness. Suffice it to say, however, that the evidence of each was considered. To be clear, Constable Kerrigan did not witness the events. Rather, she simply took a KGB statement from the complainant, had her point out the residence where the alleged assault occurred and, subsequently, she arrested the accused.

C.D.’s evidence [ 6 ] C.D. (A.B.’s mother) testified that sometime in July 2016, she observed bruises on her daughter’s chest area above the breast bone when she came out of her bedroom. In particular, she noted that the bruises were yellowish. Pressed for an answer, the complainant could not provide an explanation. [ 7 ] C.D. stated that during the first week of September 2016, her daughter A.B. showed up unannounced at her place of employment. She had left school to disclose to her the incident involving Mr. Orser. C.D. and A.B. immediately walked to the police station which is within walking distance.

They both provided written statements to Cst. Rocca. On cross-examination, it became apparent that the statements were taken on September 22, 2016 as opposed to the first week of September. C.D. added that since the incident, A.B.’s behavior has changed drastically in that “she spends a lot of time in her room and cries a lot”. A.B.’s evidence [ 8 ] The complainant, A.B., testified that in July 2016, she attended the accused’s residence. She was sixteen (16) years old at the time; he was thirty (30).

A.B. candidly admitted that by doing so, she boldly disobeyed her mother’s rule prohibiting staying overnight at any boy’s residence. [ 9 ] A.B. testified that she knew the accused because he was her best friend’s ex-boyfriend. They had met a year and a half earlier and the three would often “hang out and listen to music together”. [ 10 ] A.B. explained that one day in July 2016, she was texting with the accused.

As she was upset over a break up with her previous boyfriend, the accused invited her to his new residence to “drink and listen to music” so he could “cheer her up”. [ 11 ] At approximately 5 p.m., A.B. left her home in West Saint John to attend the accused’s residence with the directions provided; that is, she took a bus and then walked to his place in East Saint John. She had never been there before. She brought her phone with her and a bag of clothes in case she would be staying overnight due to drinking.

She was adamant, however, that sex with the accused was never part of the plan. [ 12 ] The complainant indicated that when she arrived at the accused’s residence, they were alone. In fact, they remained alone the entire night. They went downstairs, listened to music and walked to a nearby liquor store where the accused purchased what she described as a quart of R&R liquor.

At approximately 8:30 p.m., they were back at the accused’s residence where he was pouring drinks. [ 13 ] Questioned on the amount of alcohol consumed, the complainant answered: “I’m not sure but it was a good portion, more than half the bottle”. She also estimated that the accused consumed about “3 or 4 drinks” while she had “5 or 6 drinks”. [ 14 ] At some point in the evening, A.B. and the accused went upstairs in the kitchen where he cooked stir fry. She remembered crying as she talked about her ex-boyfriend.

The accused tried giving her a “pep talk” but instead he ended up sharing a dream with her where they were romantically involved. That’s when he initiated a kiss. Ad mittedly , they kissed, she said, but “it wasn’t anything” as she told him: “What are you doing”. He then stopped. She also recalled going to the bathroom immediately after. [ 15 ] When they returned downstairs to listen to music, the accused said he “wanted her” as he proceeded to take off her clothes. She firmly said “no” because of his age and the fact “he had been with her best friend”. He kept begging her; she kept saying no.

As the matter progressed, she described how she found herself on the bed laying on her back wearing nothing but her bra and underwear. He had her pinned down with his hands on her wrists above the pillow. She kept saying no. Her heart was racing. She was trying to resist,

namely by flinching and struggling, but to no avail. A.B. explained that “after I tried telling no, I just went ahead with it.” She did not feelshe could do anything anymore nor could she “get away from it”. “There was no point in trying anymore”, she said. Ultimately, “theaccused took off my underwear, performed oral sex and he put his penis in my vagina”, she added. They went to bed right after. [16] A.B. described that upon waking up the next morning, she noted bruises on her chest, collar bone and thighs.

While walking toMcDonald’s for breakfast, the accused asked if she was “o.k.” and if she would “tell her best friend”. She simply replied by saying: “Idon’t know”. She further described how, at the time, she was feeling shocked, confused and experienced pain in her chest, legs andvagina. She then took a bus and returned home immediately. [17] Because she kept receiving text messages from the accused apologizing, the complainant said she blocked his number and alsoblocked him on Facebook.

She explained that she wanted to have no communication with the accused following the incident. [18] A month later, A.B. disclosed to her best friend that she had sex with the accused who, as noted, was her ex-boyfriend. Theallegation of sexual assault was not disclosed, however. As will be addressed later, the record is silent as to what reaction, if any, A.B.’sbest friend had when she learned that she had sex with the accused. [19] A.B. also testified that upon returning to school in September 2016, she felt emotionally overwhelmed and ran to her mother’splace of employment to disclose the incident to her. IV.

Issue [20] The complainant, A.B., testified quite emphatically that she did not consent to any sexual acts with the accused. The onlyquestion, in my view, is whether the Crown has proven beyond a reasonable doubt that this is the truth. V. Law and Analysis The Crown’s position [21] The Crown invites the Court to make a finding that the complainant is credible and that it has proven all essential elements of theoffence. Therefore, it argues, a conviction should inevitably follow.

The Defence’s position [22] The Defence argues that in assessing the complainant’s credibility, I should be left with a reasonable doubt as to the guilt of theaccused. It relies on the Supreme Court of Canada’s decision in R v Ewanchuck, (SCC), [1999] 1 SCR 330. [23] The impugned passage is found at par. 61: In sexual assault cases which centre on differing

interpretations of essentially similar events, trial judges should first consider whetherthe complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she did notconsent, the question is then one of credibility. In making this assessment the trier of fact must take into account the totality of theevidence, including any ambiguous or contradictory conduct by the complainant.

If the trier of fact is satisfied beyond a reasonabledoubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to theaccused’s state of mind. [Emphasis added] [24] The Defence also points out that in assessing the complainant’s credibility, and taking into account the totality of the evidence,the Court should consider that:

a) The complainant consumed less alcohol than she described in her evidence;

b) Immediately following the alleged sexual assault, the complainant remained at the accused’s residence. Her answers varied as tothe reasons why she did not leave right away. What’s more, she had access to a mobile phone which she could have used and, of note,she walked to McDonald’s restaurant for breakfast with the accused the next morning;

c) The complainant had a motive to fabricate the allegation; that is, she had sex with the ex-boyfriend of one of her best friends;

d) The complainant is not totally candid as to the date she claims the relationship with her previous boyfriend ended; and

e) Upon answering questions touching the matter of consent, the complainant repeatedly made an awkward noise at the end of heranswers. The complainant’s alcohol consumption [25] As indicated, the Defence contends that the complainant exaggerated the amount of alcohol she consumed within the periodpreceding the alleged sexual assault. In closing arguments, Counsel for Mr. Orser submitted a detailed mathematical formula which, heargues, supports the Defence’s theory that the complainant consumed less alcohol than she described in her testimony. Therefore, I am

invited to make a finding that she is not credible. [26] I believe I can place some reliance on my prior empirical experience which clearly indicates that, more often than not, witnessesbefore the court provide inaccurate, albeit honest, estimations of alcohol consumption within a specific time frame. The question ofrelying on past legal or judicial experience often arises in instances of counterintuitive or difficult to understand evidence. [27] In R v G. (A.V.),2015 BCPC 438 , [2015] B.C.J. No. 3050, at par. 41 per Challenger J., the trial judge drew on hisexperience as a lawyer.

It is no doubt the same as judges relying on their judicial experience.

The Supreme Court of Canada hasspecifically relied upon judicial experience in several areas over the last number of years: see R v White, 2011 SCC 13 , [2011]1 S.C.R. 433, at paras. 33, 44, 55-56, 60 per Rothstein J., par. 106 per Charron J., pars. 138, 164, 185 per Binnie J. dissenting in the result("consciousness of guilt"); R v Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787, at par. 59 ("principled exception to the hearsayrule"); R v Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, at paras. 39-42 ("unreasonable verdict"). [28] Similarly, in the three judgments in White (2011), judicial experience is relied upon to properly instruct juries in cases ofdeceptive evidence which appears more powerful than it actually is, such as eyewitness identification, confessions to jailhouseinformants and consciousness of guilt evidence. [29] In R v Ashley, 2012 ONSC 1678 , [2012] O.J.

No. 1894, Justice Dawson, in an importing drugs prosecution, usedknowledge from his past judicial experience to conclude that importers often declare alcohol in excess of the permitted limit. This wasplainly not what one would expect. A person not schooled in the world of drug importation would expect that a courier would choose tostay under the radar and not do anything which could send them to secondary inspection. Likewise, Justice Dawson also drew from hisexperience that traffickers often buy plane tickets at the last minute and in cash.

Again, this is somewhat counter-intuitive. [30] The Ontario Court of Appeal, in R v Ashley, 2012 ONCA 576 , [2012] O.J.

No. 4141, at par. 9, upheld Justice Dawson'sreasoning, quoting from the Supreme Court of Canada in R v S. (R.D.), (SCC), [1997] 3 S.C.R. 484, at par. 44: An understanding of the context or background essential to judging may be gained from testimony from expert witnesses in order to putthe case in context ... from academic studies properly placed before the Court; and from the judge's personal understanding andexperience of the society in which the judge lives and works. [Emphasis Added]. [31] Indeed, it appears that the complainant A.B. consumed less alcohol than she described at trial, but, with respect, I am unable toagree that she did so in order to be deceitful or to be less than candid with the Court.

Drawing from my experience as a lawyer and frompast judicial experience, I conclude that is not an uncommon feature for a witness to provide an honest, albeit inaccurate, estimate of theprecise amount of alcohol consumed within a specific time frame. Therefore, I find that this does not undermine the complainant’scredibility. Using stereotypes in assessing credibility bearing on reasonable doubt is impermissible [32] It is trite that reliance on a stereotype to assess credibility bearing on reasonable doubt is impermissible.

Stereotypicality is nevera legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality mustnever translate to less credibility: See R v A.R.D. 2017 ABCA 237 , [2017] A.J. No. 746 at par. 44. [33] It has long been recognized that there is "no inviolable rule on how people who are the victims of trauma like a sexual assaultwill behave": R v D(D) 2000 SCC 43 (S.C.C.) at par. 65.

Just like the failure to make a timely complaint, a failure to demonstrateavoidant behaviour or a change in behaviour "must not be the subject of any presumptive adverse inference based upon now rejectedstereotypical assumptions of how persons (particularly children) react to acts of sexual abuse": R v D(

D) at par. 63. [34] I would fine tune these comments in two respects. First, it is neither logical nor a matter of common sense to expect acomplainant to behave in any particular way post sexual assault. To conclude otherwise, in my view, would be relying on impermissiblemyth or stereotype masquerading as logic and common sense.

Second, there is no juridical foundation upon which a judge can correctlyconclude that, as a matter of sound legal principle, a complainant will demonstrate avoidant behavior. [35] Here, there is undisputed evidence that complainant did not run away from the accused’s residence immediately after the allegedsexual assault. Nor did she call her mother, a friend or leave first thing the next morning. Further, the complainant only disclosed theallegation to police and to her mother in September 2016, some two (2) months later.

I do not, however, discount her credibility becauseshe delayed reporting the assault or because she did not cry out or search out help from her mother or other family members at whatsome would regretfully refer to as the “earliest opportunity”. To judge her credibility against those myths of appropriate behaviour is nothelpful. As will be seen later when I address the complainant’s credibility, in particular as it relates to her reasons for not leaving theaccused’s residence immediately after the alleged assault, the supposed expected behavior of the usual victim tells me nothing about thisparticular complainant.

This begs the question: what, if anything, can evidence of the complainant’s lack of avoidant behaviourimmediately after the alleged sexual assault indicate? The answer is clear: nothing. [36] In my opinion, the evidence of immediate after-the-fact association with the accused does not detract from her credibility. Nor doI believe this indicates that the sexual assault did not happen. It is true that it does not enhance her credibility either. The evidence is

neutral towards proof of guilt. [37] One more point. While impermissible for a trier of fact to base his or her credibility assessment of the complainant not on aproper evidentiary foundation, but on inappropriate judicial stereotyping, care must nonetheless be taken to ensure that shattering mythsand developing new understandings does not swing the pendulum to the other extreme out of a perceived duty of political rectitude: SeeR v J.M. 2018 ONSC 344. [38] I find the recent comments by D.E. Harris J. in R v J.M. apropos.

I will only excerpt some of the highlights he made with respectto the judgment of the Alberta Court of Appeal in R v A.R.D., 2017 ABCA 237 , [2017] A.J. No. 746: 66 The second area in which I would comment on the majority reasons in A.R.D. is with respect to the opinion expressed in severalplaces in the judgment that the evidence of association after the fact is irrelevant and does not tell us anything about the allegations:A.R.D., at paras. 39, 58. If what was meant is that generalizations have no place in analyzing this type of evidence, I agree.

If, on theother hand, a rigid rule of irrelevancy was proposed, I do not think that is correct. There can be no blanket rule: each case must be lookedat on its own footing. Of course, after the fact association with the accused can, in some instances, weigh against the complainant’scredibility: see R. v. L.S., 2017 ONCA 680 , [2017] O.J. No. 4586, at paras. 88-89 per Doherty J.A. [Emphasis added] 67 The legal position with respect to delays in disclosure dealt with by the Supreme Court in R. v. D. (D.), 2000 SCC 43 , [2000]2 S.C.R. 275 and as recognized in A.R.D. at para. 55 is analogous.

Delays do not automatically count against the complainant’scredibility. This is a serious error of law and is founded on stereotypical thinking. A judge must appreciate the psychology andcircumstances that may lead to delayed disclosure.

In D. (D.) at para. 65, it was said, and the comments apply equally to associationevidence, the reasons for delayed disclosure “are many and at least include embarrassment, fear, guilt, or a lack of understanding andknowledge.” A delay can, however, undoubtedly damage a complainant’s credibility, particularly when disclosure is made coincidentwith the impetus of a motive to fabricate. 68 The important point is that the question about association has to be asked; the judge must be alive and open to the psychology, butthere is no prescribed answer.

A very careful examination of the evidence is required. [39] I fully endorse the thrust of what D.E. Harris J. admirably explained. Motive to fabricate allegations [40] It is also the theory of the Defence that the complainant had a motive to fabricate the sexual assault allegations. It is so becauseshe had sex with her best friend’s ex-boyfriend. Further, the next morning, they had a discussion about this friend while walking toMcDonald’s for breakfast. [41] I would reject this submission as framed. [42] There are two obvious answers to this argument.

First, my appreciation of the complainant’s evidence is that when they werewalking to McDonald’s, it was the accused who raised concerned over his ex-girlfriend finding out they had sex. To put things in theirproper context, A.B. simply replied by saying: “I don’t know”. Accordingly, I am not prepared to qualify such a limited exchange –which is arguably hearsay - as a meaningful discussion about A.B.’s best friend as alluded to by the Defence. [43] Some preliminary observations are warranted before I turn to the issue of motive to fabricate the allegations.

In fact, I take theliberty of making a statement of the obvious at this point: although I am reminded that the accused does not have to prove or disproveanything, and that as a matter of law he is presumed innocent, drawing an inference of a motive to fabricate cannot be done in a vacuum.As I shall explain, the evidentiary record does not lead me to the conclusion that the complainant had a motive to fabricate the allegationsof sexual assault. [44] The Defence argues that it is open to this Court to draw an inference the complainant brought the allegation in an attempt topreserve the relation with her best friend and perhaps to save her own reputation as a sixteen year old that had sex with a thirty year oldman.

While superficially attractive, this argument has an important flaw: it is not rooted in evidence. In effect, one could equallyspeculate that the complainant fabricated the allegations for an ulterior motive (e.g. to get back at the accused at the end of a relationship

with her best friend). Without any evidence from which the Court can draw such inferences, it would equivalently amount to conjecturein both scenarios. [45] I would emphasize, for example, that the record is silent as to what reaction, if any, the best friend had when she found out thecomplainant had sex with her ex-boyfriend. And, if she had such reaction, when did she express it in relation to when the complainantdisclosed the allegations of sexual assault?

Of note, the complainant’s best friend did not testify nor were these issues canvassed with thecomplainant either in her examination-in-chief or during her cross-examination. The record is equally silent in that regard. Accordingly,the complainant’s motive to fabricate the allegations is implausible in my view. [46] By contrast, one inference which I can draw from the evidentiary record of the proceedings is that the complainant sufferedbruises on her chest, collar bone and thighs while attempting to resist the accused’s application of force leading to the sexual assault.

Thisis not based on speculation or conjecture. Rather, I draw this inference from the complainant’s evidence that she noted the bruisesimmediately upon awakening the next morning, she had not noticed it earlier and her mother’s evidence, which I also accept, indicatesshe observed the bruises as well in July 2016. What’s more, I find that the bruises described by both the complainant and her motherappeared consistent with the manner in which she described resisting the accused’s application of force. This, in my view, makes thecomplainant’s evidence the more compelling.

The Defence points out that the complainant did not notice any bruises on her wrists.However, that is not surprising.

I would not expect there being much struggle as far as the wrists were involved; the accused appliedconstant pressure to her wrists such that the complainant was pinned down on the bed. [47] There may be circumstances in which there is potential motive to fabricate allegations of sexual assault - where rooted inevidence – e.g. a young complainant had a sexual relation with an older person, there is evidence or admission suggesting he or shesubsequently became concerned over disapproval by the parents or embarrassed at school over the rumor, the sexual relation led to theloss of an important friendship or to one’s reputation, all which prompted disclosure of the sexual assault allegations.

I did not get theimpression it was the case here. While I am again reminded that the accused is presumed innocent, and that he does not have to prove ordisprove anything including motive to lie or fabrication of the allegations, the record before me does not allow for such an inference. Therecord is in fact silent as to any suggestions that, between the sexual acts disclosed to her best friend and the police’s involvement, A.B.became worried about their friendship or they had a dispute.

A careful examination of the evidentiary record indicates that no such issueswere canvassed during the complainant’s evidence. [48] Therefore, with respect to a potential motive to fabricate the allegations, I find no evidence to support this. To be clear, however,I am not suggesting that because I conclude there was no motive to fabricate, the complainant must be telling the truth. Rather, thepresence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility: See R v Batte, (2000) (ON CA), 49 O.R. (3d) 321, at par. 121.

Essentially, it does not logically follow that because there is no apparentreason for a witness to lie, the witness must be telling the truth. Is the complainant candid as to the date she claims the relationship with her previous boyfriend ended? [49] The Defence argues that the complainant is not credible because there is an unresolved inconsistency as to the date therelationship ended with her previous boyfriend. The complainant testified that she had just broken up with her boyfriend and, feelingemotional, she attended the accused’s residence so he could “cheer her up”.

That’s when she claims the sexual assault occurred. Yet, oncross examination, she admitted that the relationship with her previous boyfriend ended in January 2016 and she attended the accused’sresidence in July 2016. [50] Even if the complainant was wrong or misspoke as to the date the relationship ended with her previous boyfriend, nothing in myview turns on this discrepancy. It is a trivial issue and I find it does not undermine her credibility.

Put differently, I am not troubled withthis minor imperfection in her evidence. [51] At any rate, I believe that in looking at the complainant’s entire evidence, and not individual pieces, this inconsistency can beresolved. Clearly, the complainant clarified that when she attended the accused’s residence in July 2016, she was still “upset over thebreak up” which had occurred in January 2016. Demeanour evidence [52] There is a significant body of cautionary judicial authority on demeanour evidence.

To rely on it, even when bolstered by otherfactual findings, is perilous: see R v Hemsworth, 2016 ONCA 85 , [2016] O.J. No. 505, at paras. 44-45; R v Rhayel, 2015ONCA 377 , [2015] O.J. No. 2675, at paras. 85, 88-89 and 92-93; R. v. Gostick, (ON CA), [1999] O.J. No.2357, at paras. 15-18. [53] There is also an arrogance to the belief that trial judges can read people, their emotions and feelings, with any degree of certainty.The hard evidence we require in a court of law is inconsistent with putting much weight on demeanour evidence: See R v J.M. 2018ONSC 344.

[54] I would also agree with Justice O'Halloran when he states in R v Faryna and Chorny, (BC CA), [1951] B.C.J.No. 152 (B.C.C.A.), at paras. 10-11 (adopted by the Ont. C.A. in Norman at par. 55): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. The law does not clothe the trial judge with a divine insight into the hearts and minds of the witnesses. [55] I would now comment on Defence Counsel’s observations of the complainant’s demeanour while giving evidence before theCourt.

In particular, the Defence contends that upon answering questions touching the matter of consent, the complainant repeatedlymade an awkward noise at the end of her answers. [56] To be clear, I listened to the recording of the proceedings on multiple occasions. In the end, however, and to the extent that Icould hear such noise, even when combined with the evidence as a whole, I am not prepared to factor this into the assessment ofcredibility bearing on reasonable doubt. To rely on it, in my view, would be perilous.

The complainant’s credibility [57] Credibility is a question of fact to be determined beyond a reasonable doubt, looking at the entire evidence, and not individualpieces. I am satisfied that A.B. is a credible witness and her evidence is compelling. She was cross examined in great detail byexperienced counsel. Considering the number of questions and the exhaustive nature of her cross-examination, she came out relativelyunscathed. Yes, there was a minor inconsistency, which I alluded to, but I resolved it looking at her evidence as a whole. I find that hergeneral credibility stacked up well.

It is not a standard of perfection or one that requires 100% accuracy. As explained below, heranswers were often intelligent, but they also seemed honest. [58] The complainant’s manner of testifying had, in my view, a proper and not a skewed perspective.

For example, in answering thevarious questions as to why she did not leave home immediately after the assault, she candidly and spontaneously provided answerswhich reflected the imprudent naivety of her youthfulness, namely by stating that she “did not expect this to happen, did not want to gohome drunk to her mother, she had no ride, the buses stop after 10 p.m.”. In

summary, I find that the complainant provided balancedanswers, not designed to invent. The Essential Elements of Sexual Assault [59] R v Ewanchuk, supra, is the seminal decision on the elements the Crown is required to prove in a sexual assault prosecution. Thisdecision also underscores the necessity of focusing on the subjective state of mind of the complainant to determine if he or she did notconsent to the sexual touching at the time it occurred. [60] A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements.

First that the Accusedcommitted the act, the actus reus and second, that he or she had the necessary mental element, the mens rea. [61] The actus reus of sexual assault is established by proving three (3) elements: i. Touching; ii. That the touching or contact was of a sexual nature; iii. The absence of consent of the complainant. [62] The mental element, the mens rea, is basically satisfied by the Crown proving beyond a reasonable doubt that the accusedintended to touch the complainant.

This is because sexual assault is a crime of general intent. [63] When I consider the weight of the Crown’s evidence along with the force of the testimony of the complainant in the contextof all the evidence, I conclude that the Crown has proven beyond a reasonable doubt the first two essential elements of the offence ofsexual assault: 1) the accused touched A.B.; and 2) the touching was of a sexual nature, the details of which A.B. intimately described.

I also find as fact that the assault occurred in Saint John, New Brunswick, between July 1st, 2016 and July 31st, 2016 and that the Crownhas proven the identity of the accused beyond a reasonable doubt. [64] It is to the third element of the physical act of sexual assault that I now turn: the absence of consent by the complainant. [65] Despite the consumption of alcohol, there was no evidence that the complainant lacked the capacity to consent.

In fact, shetestified in some details as to the sexual activities that occurred and her repeated attempts to stop the assaults. [66] Section 265(3) does not refer to what the complainant subjectively thought or believed, but directs the inquiry to be what he orshe did or did not do and why. It provides that “consent cannot be said to be obtained where the complainant submitted or did not resistby reason of the application of force, threats or fear of the application of force, fraud or the exercise of authority”. [67]

Section 273.1 (1) defines consent to be the “voluntary agreement” to engage in the sexual activity in question. Subsection

(2) also outlines where consent is not obtained if, amongst other circumstances: (

d) the complainant expresses, by words or conduct, a lackof agreement to engage in the activity. [68] As indicated, I believe the complainant and I accept her testimony that she was unwilling to engage in any sexual activity. I findthat she clearly articulated her absence of consent to the accused: she said no. Not only did the accused not stop taking off thecomplainant’s clothes after she repeatedly said no, he went on to attempt an increased level of sexual activity while holding her wrists ontop of the pillow. She tried to resist but to no avail.

Ultimately, she just went ahead with it, feeling she could not extricate herself fromthis situation. It is at that moment the accused removed her underwear, performed oral sex and inserted his penis in her vagina. Whatcould be clearer? Consent is not consent unless it is freely given.

Under these circumstances, it is equally clear that as per s. 265(3),consent cannot be said to be obtained where the complainant submitted or did not resist by reason of the accused’s application of force.Parenthetically, there is no need, in my view, to address the overlap between s. 265(3) and s. 273.1(2). [69] Sexual assault being a crime of general intent, the Crown need only prove that the accused intended to touch A.B. (par. 41Ewanchuk). I have already found that the accused touched A.B. It follows logically that a person intends the natural consequences oftheir actions.

The Crown has also established that the accused’s touching of the complainant was voluntary. I am satisfied the evidenceestablished this beyond a reasonable doubt. It is the only reasonable inference to be taken from the accused’s actions in thesecircumstances. I find therefore that the basic mental element of the offence of mens rea has been satisfied. [70] The vital issue, of course, is whether guilt is proved beyond a reasonable doubt consistent within the definition in R v Lifchus, (SCC), [1997] 3 S.C.R. 320, at par. 39. Mathematical certainty is not required.

Reasonable doubt, however, is closer toabsolute certainty than it is to a balance of probabilities: R v Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, at par. 242 per IacobucciJ. In applying the definition of reasonable doubt from Lifchus, the question is whether I am “sure” of guilt. [71] Based on the evidence before me, I am not left with a reasonable doubt as to the complainant’s credibility. She was credible andher evidence was compelling. I am also “sure” in the context of all of the evidence that she was telling the truth with respect to theallegations.

I am equally convinced of the accused's guilt beyond a reasonable doubt. VI. Conclusion [72] In the result, I find that the Crown has proven the offence under s. 271(1)(

a) beyond a reasonable doubt. Therefore, I find theaccused guilty as charged. Dated at Saint John, New Brunswick, this 23rd day of March, 2018. ________________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court