R. v. C.D.S., 2022 BCPC 247

Citation: R. v. C.D.S. 2022 BCPC 247 Date: 20221110 File No: 3345 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. C.D.S. PUBLICATION BAN PURSUANT TO

SECTION 486.4(1) OF THE C.C.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. REEVES Counsel for the Crown: D. Wightman Counsel for the Defendant: S. Catona Place of Hearing: Fort St. John , B.C. Fort St. John , B.C. September 27, 28, 29, October 6, 2022 Date of Judgment: November 10, 2022

INTRODUCTION [1] The accused C.D.S. (“C.S.” or “Mr. S.”) is charged with a single count contrary to s. 271 of the Criminal Code. It is alleged thaton or about January 31, 2015, at his home [omitted for publication] of Fort St. John, BC, Mr. S. sexually assaulted Ms. K. A.-Y. (“Ms.A.”). The Crown has proceeded by indictment. [2] The Crown alleges that following a house party where a significant amount of alcohol was consumed by all, Ms. A. passed outon Mr. S.’s bed, awaking once to pain in her anus which she attributed to someone attempting anal sex with her.

The next day shedetermined she had been sexually touched and attended a hospital for a sexual assault examination, and reported this to police. MaleDNA was found on her vagina and anus and was ultimately confirmed to be Mr. S.’s. Mr. S.’s position is that Ms. A. initiated sexual actswith him to which he consented and that following this consensual sex, he departed the bedroom to sleep on a couch as he did not want tosleep next to the complainant. [3] In addition to Ms. A.’s testimony, the Crown called Ms. J.P. (or “J.P.” or “Ms. P.”), Ms. A.’s friend at the time of the incident.At that time, Ms.

P. was the girlfriend to Mr. S’s brother K. (or “K.S.”), with whom she subsequently had a child. Ms. P. and K.S. arenow separated. At the direction of the court, an Agreed Statement of Facts (“ASF”) was also entered into evidence, together with handdrawn diagrams of the home in question and excerpts of transcripts from police interviews upon which Ms. A. was cross-examined. [4] Mr. S. chose to provide evidence in his own defence and also called as a witness his brother K.S. [5] The Crown must prove all essential elements for the offence of sexual assault beyond a reasonable doubt.

Reasonable doubt isnot imaginary or frivolous, nor is it based on sympathy or prejudice; however, it is also not proof to absolute certainty (R. v. Lifchus, (SCC)). Reasonable doubt must be logically connected to the accepted evidence as a whole and be based on reason andcommon sense. In a spectrum of levels of doubt, extending from “probably guilty” to “absolutely guilty”, it falls much closer to the latter(Justice N. Brown in R. v. Bachman, 2013 BCSC 1028 paras 78-79). [6] The required analysis conducted by the court will be as follows: 1. Applicable legislative framework and required essential elements; 2.

Legal test for conflicting testimonial evidence; 3. Evidence of Ms. A.; 4. Other Crown witness evidence; 5. Evidence of Mr. S.; 6. Other defence evidence. [7] In the totality of the evidence heard and accepted by this Court, I find that the Crown has discharged its burden beyond areasonable doubt. I therefore find Mr. S. guilty as charged of the offence of sexual assault against Ms. A. 1. APPLICABLE LEGISLATIVE FRAMEWORK AND REQUIRED ESSENTIALELEMENTS [8] The relevant sections of the Criminal Code for the offence of sexual assault are: Sexual assault 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years . . . Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 . . . the voluntary agreementof the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in question takes place. . . . No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if . . . (a.1) the complainant is unconscious;

(

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); . . . (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity . . . Where belief in consent not a defence 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to theactivity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or activelyexpressed by conduct. [9] The following elements of the offence of sexual assault were admitted in the ASF at Ex. 2: (

a) The location and date of thealleged offence; (

b) Mr. S., the person before the court, is the same person alleged to have committed the offence and both he and Ms. A.were 17 years old on the date of the alleged incident; (

c) Mr. S. had vaginal sexual intercourse with and physical contact with the anus ofMs. A.; and (

d) Mr. S.’s DNA was found on Ms. A.’s vagina and anus. [10] As a result, the following essential elements of the offence of sexual assault have been admitted: (

a) that Mr. S. sexually touchedMs. A., and (

b) that he intended to touch her in this manner (R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para 23). [11] The remaining elements for this Court to determine therefore are: [12] Did Ms. A. have the capacity to consent? Where there is evidence that a complainant may have lacked capacity to consent, suchas due to the overconsumption of alcohol, the court must determine whether or not the complainant was capable of consenting as aprecondition to finding whether subjective consent was present (R. v. G.F., 2021 SCC 20 , at para 24).

This recognizes capacityas an aspect of subjective consent, which must be effective “as a matter of law” (Ewanchuk at paras. 36-40). Only a high level ofintoxication that deprives the complainant of an operating mind will be sufficient to remove the capacity to consent to sexual activity. (R.v. Al-Rawi, 2018 NSCA 10, at para 66). If found beyond a reasonable doubt that the complainant lacked an operating mind capable ofconsenting, no consent can be found (G.F. at para 47).

For a complainant to be able to subjectively consent to sexual activity, they musthave been capable of understanding: i. the physical act; ii. that the act is sexual in nature; iii. the specific identity of the complainant’s partner or partners; and iv. that they have the choice to refuse to participate in the sexual activity. (G.F. at para 57). [13] If capacity to consent is found, the next essential element of the criminal act, or actus reus, must be determined. This examineswhether consent was absent.

The absence of consent is a subjective finding and must be determined with reference to the complainant’ssubjective internal state of mind towards each sexual act in question, at the time of the sexual activity in question. The complainant’stestimony is the only source of direct evidence as to her state of mind, requiring a credibility assessment in light of all the evidence,including any ambiguous conduct, and does not include the accused’s perception of the complainant’s state of mind (R. v. Ewanchuk atparas 26-30, 48). Consent must be linked to the sexual nature and specific physical sexual act(

s) in question (R. v. Hutchinson, 2014 SCC19, at para 55, 57). The complainant need not express her lack of consent for the actus reus to be established (R. v. J.A., 2011 SCC 28, atpara 37). [14] The remaining element of criminal intent, or mens rea, that Mr. S. knew, was reckless or wilfully blind regarding Ms. A.’s lackof consent, lastly, must be examined. This is considered from the perspective of the accused – who need not testify – but may not begrounded in speculation as to what was taking place in the mind of the complainant (Ewanchuk at para 44, 46).

The evidence mustestablish “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activitywith the accused” (R. v. Barton, 2019 SCC 33, at para 90, citing Ewanchuk at para 49). Where an honest but mistaken belief in thecommunication of consent is raised, the accused must be able to explain how and why that evidence informed his honest but mistakenbelief that she communicated consent to the sexual activity in question at the time it occurred (Barton, para 93).

A complainant’s silence,passivity or ambiguous conduct cannot be relied upon by the accused, nor can the accused’s belief or speculation as to what thecomplainant was thinking (Ewanchuk, para 46, 51). To be successful, an honest but mistaken belief in communicated consent requiresthat there is an air of reality to the defence. This in turn requires some evidence “upon which a reasonable trier of fact acting judiciallycould find (1) that the accused took reasonable steps to ascertain consent and (2) that the accused honestly believed the complainantcommunicated consent”.

If this threshold is not met, then the defence shall not be considered by the trier of fact. If the air of reality

threshold is reached, the defence of honest but mistaken belief in communicated consent may be considered and it is left to the Crown toprove beyond a reasonable doubt that the accused failed to take reasonable steps (Barton, paras 121-123). 2. LEGAL TEST FOR CONFLICTING TESTIMONIAL EVIDENCE [15] Determining credibility has been characterized as “more art than science” and is particularly difficult where, as here, the courtmust assess the credibility of witnesses whose testimony is so significantly opposed (Justice Cory at para 128, R. v. S.(R.D.), (SCC)).

Some, all, or none of a witness’ testimony may be accepted and different weight may be applied to those parts ofevidence that are accepted (R. v. Langlet, 2013 BCSC 2274 , at para 46, 47). Evidence found not credible is logically also notreliable – however, the converse is not true as evidence found credible may nevertheless be unreliable (R. v. Morrissey, (ONCA)). Where direct evidence is lacking with regards to a complainant’s subjective state of mind at the relevant time,circumstantial evidence may also be considered (Al-Rawi at para 69; R. v. Czechowski, 2020 BCCA 277, at para 73).

Wherecircumstantial evidence is relied upon heavily to ground a conviction, the guilty inference must be the only reasonable inference that suchevidence permits and reasonable alternative inferences should not be overlooked, however, must be plausible based upon logic andexperience and not be irrational or fanciful (R. v. Villaroman, 2016 SCC 33, at paras 30, 35 – 37). [16] Where conflicting evidence is received, the analytical framework set out by the SCC in R. v. W.(D), , is ofassistance. This framework was expanded upon by the Alberta Court of Appeal in R. v. Achuil, 2019 ABCA 299, at para 18: 1.

The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown (subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence); 2.

In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject todefences with additional elements such as an objective component); 3. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and 4. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [17] I propose to conduct this analysis using the following non-exhaustive list of factors as set out by Judge J.T. Doulis in R. v. C.Z.,2020 BCPC 147, at para 103: (

i) the plausibility of the witness’ evidence; (ii) independent evidence to support or contradict that witness’evidence; (iii) the external consistency of the evidence; (iv) the internal consistency of the evidence; (

v) the “balance” of the evidence,meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent, (vi) thewitness’ demeanour while testifying. 3. THE EVIDENCE OF MS. A. (

i) Assessing the reliability of Ms. A.’s evidence [18] Ms. A.’s capacity to observe, recall and recount the events of the alleged assault were impaired by alcohol as she readilyadmitted. Unsurprisingly, she was unable to say what happened during those periods that she was blacked out or had no memory.Likewise, the passage of over seven years since the alleged incident must be noted. In cross-examination, she agreed that in makingstatements to police, she admitted to having a generally poor memory overall. Despite this, Ms.

A. remained steadfast with regards to thecentral aspects of the evening and specifically, the alleged incident; with regards to what she could recall, she is found reliable. Itherefore now turn to whether she has truthfully and accurately recounted these details. (ii) The plausibility of Ms. A.’s evidence [19] Ms. A.’s description of the alleged assault is plausible. She was a 17-year-old high-school student and weighed approximately118 lbs. Ms. A., her friend J.P., and another friend were together in Fort St.

John when they were invited by K.S., J.P.’s boyfriend and theaccused’s younger brother, to a house party at the S. home. Ms. A. initially did not wish to go as she had a hockey game the next day, butwas talked into going by Ms. P. Another friend drove them to the home at approximately 8:30 pm and along the way, they purchased andconsumed a number of “Twisted Tea” alcoholic drinks. Ms. A. consumed three of these drinks during the drive and intended to dropMs. P. off and leave, but was convinced to stay by Ms. P. Upon arriving at the S. home, the mother Mrs.

S. and her partner J., herdaughter and a number of other younger teen friends of K.S. were already there drinking. The driver of their vehicle and the other teensthen left, leaving Ms. A., Ms. P., C.S. and K.S., Mrs. S. and J. [20] Ms. A. knew Mr. S. through high school; he was also the boyfriend of a friend of hers, but she did not consider him to be herfriend. Upon arriving at the home, a table had been set up to play “beer pong”, a drinking game involving teams of two competingagainst each other. Ms.

A. socialized and played the drinking game and testified that as the evening progressed, she drank too much andeventually began experiencing blackouts, including conversations she apparently had but could not recall. Ms. A. remembered seeing theaccused consume alcohol as part of the beer pong game, but could not recall if he drank anything else.

[21] After playing beer pong, Ms. A.’s memory was weak but she did recall discussing where she would sleep. She asked to share thebed with Ms. P. and K.S. but was told no. Ms. A. did not want to sleep in the common area where a couch was located, as Mrs. S.’s friendJ. was sleeping there and Ms. A. was uncomfortable in his presence. Ms. A. clearly recalled she ultimately did decide to sleep on Mr. S.’sbed, but wanted nothing to do with him and told him this. [22] Ms. A. passed out on Mr. S.’s bed and believed she was fully clothed.

She was awoken sometime after to a sharp pain “up in herass” that was very uncomfortable, a “9 out of 10”. The room was pitch black and her pants had been pulled down to her ankles.Immediately after awaking from the pain, she said “stop, stop”, pushed herself towards the wall, rolled onto her side and again passedout. [23] Ms. A. next awoke at approximately 5:00 am and noted both her vagina and anus were sore. She put her clothing back on andwalked around the house and saw J. asleep on the living room couch. As she still felt drunk, she returned to the bed to sleep. Ms.

A.awoke again at 8:00 or 9:00 am, socialized with the other occupants of the house and was then driven home by Mrs. S. At this time, Ms.A. texted Ms. P. that she believed her and Mr. S. had “fucked” because of the pain in her vagina and anus and that she had slept on hisbed. [24] Ms. A. would normally shower in the morning but did not on this day; she also did not shower after playing hockey. Somethingjust told her “no”. During the afternoon while babysitting, Ms. A. received text messages from Mr. S. telling her to stop saying that theyhad sex and that it was Mrs. S.’s friend J. that had sex with her. Ms.

A. attended the Fort St. John Hospital where a sexual assaultexamination was conducted and then she provided a statement to police. Ms. A. testified that she was never interested in Mr. S. andwould not have had sex with him; moreover, that she would never engage willingly in anal sex. [25] In cross-examination, Ms. A. agreed that her memory was affected by alcohol, but was unshaken regarding awaking to someonetrying to penetrate her anus and then having a sore vagina and anus upon awakening later that morning. She candidly admitted that shehad initially threatened to tell Mr.

S.’s girlfriend what had happened and that she believed J. had assaulted her, until Mr. S.’s DNA wasconfirmed to be on her. When pressed if she ever might agree to have sex with Mr. S., she emphasised he was her friend’s boyfriend atthe time so she would not have wanted to. Additionally, Ms. A. emphasised that she was out of it, drunk and intoxicated, and would nothave agreed to sex with anyone in that condition. Ms. A. strongly disagreed with an alternate version of events put to her by Mr. S.’scounsel that involved her initiating consensual sex. Counsel also challenged Ms.

A. that on the first day of this trial, she had spoken toMs. P., another Crown witness, and counselled her to alter her evidence. Ms. A. strongly disagreed with this suggestion. [26] Ms. A.’s testimony regarding memory loss is concerning; however, consistent with the amount of alcohol she reported drinking.Her unshaken evidence regarding becoming “blind drunk”, having consumed no less than nine drinks, passing out on Mr.

S.’s bed ratherthan the living room couch and awakening to something entering her anus is however all plausible, particularly given her small stature inrelation to the amount of alcohol she admitted consuming. (iii) Independent evidence to support or contradict Ms. A.’s evidence [27] It is trite law that a sexual assault complainant’s evidence does not require corroboration, nor that it is unsafe to find an accusedguilty in the absence of corroboration (Criminal Code s. 274). Such evidence if provided, however, can be of assistance to the trier offact. [28] That Ms.

A. submitted to a sexual assault examination and reported to police serve only to confirm that she attended andcomplained of having been sexually assaulted. The Crown for some unknown reason did not put the examination results, or the originsof the DNA found, into evidence. The court also did not hear evidence of Ms. A.’s visible condition shortly after the alleged sexualassault, which could have been considered (R. v. James, 2014 SCC 5 , para 5). [29] What is in evidence includes Mr. S.’s admission that his DNA was located on both Ms. A.’s vagina and anus and that he and Ms.A. had sexual intercourse.

Counsel for Mr. S. suggested that his penis might have slipped from her vagina to her anus briefly whileengaged in consensual sex, but this was not accepted by Ms. A. Also in evidence at Ex. 3 was Ms. A.’s statement to police on December5, 2017. There, the interviewer put to Ms. A. that “based off of the evidence from the lab . . . the only way that his semen was anywherenear you was from sexual intercourse”. As already mentioned, given that the Crown called no further evidence regarding the source ofthe DNA, little weight is attached to this. (iv) External consistency of Ms. A.’s evidence [30] Ms.

A. was challenged regarding several inconsistencies between the three statements she made to police and her testimony incourt. In one statement to police she recalled Mr. S. being in the bed beside her when she first awoke at 5:00 am, but did not recall thisduring in-court testimony. In another statement to police she recalled C.S. taking a shower when she awoke the second time; she did notrecall this during her in-court testimony. These inconsistencies on peripheral events are of little assistance to the court and Ms.

A.consistently maintained that she was passed out drunk, awoke to someone attempting to penetrate her anus, rolled over and told theperson to stop and then returned to sleep. [31] Ms. A. was also challenged in cross-examination about her statement to police on December 5, 2017. It was suggested she agreedin that interview she would have been open to sex with C.S. Ms. A. strongly denied this and the court does not find her police statementsupports this

interpretation. In the statement, Ms. A. tells the investigator “I uh would have been ok with him if he, if we both were soberand agreed to this” and “so I said that I would have been OK with it but I’m not OK with it because I was tooken [sic] advantage of”. Inher statement, Ms. A. then goes on to state that in the circumstances of her extreme intoxication and prior statement to Mr. S. that she didnot want sex, she would not have agreed to sex. (

v) Internal consistency of Ms. A.’s evidence

[32] Ms. A. maintained she was truthful, although mistaken in the instances noted above, regarding details of the alleged assault wheninterviewed by police, and never resiled from this position despite a vigorous cross-examination. She was able to recall with somecertainty a number of details regarding the events leading up to becoming “blind drunk” and despite a vigorous cross-examination,maintained her recollection of the number of drinks she did recall consuming. (vi) The “balance” of Ms. A.’s evidence [33] Ms.

A. testified in a candid, forthright manner and when challenged on discrepancies, she acknowledged them and offeredlogical, rational explanations. She admitted having generally a poor memory, however, her evidence in court largely conformed with theportions of her reports to police made the day following the alleged incident upon which she was cross-examined. She did not attempt tofill in gaps in her recollection by speculating, nor did she try to speculate as to anything not within her own personal sphere of knowledge. [34] Although nothing in her evidence suggested that Ms.

A. had any motive to fabricate her allegation of sexual assault, the absenceof evidence of a demonstrated motive to fabricate is distinct from affirmative proof of no motive to fabricate (R. v. B.(R.W.) (1993), 40W.A.C. 1 (BCCA). Most importantly, the defendant bears no burden to prove that a complainant has a motive to fabricate evidence (R. v.M.R.E., 2020 BCPC 19, at para 48, citing R. v. Krack, (ON CA)). (vii) Ms. A.’s demeanour while testifying [35] Ms. A.’s demeanour while testifying was consistent with someone who did not wish to be there and she neither embellished norexaggerated her evidence.

Nothing in her demeanour detracted from her credibility. (viii) Conclusion regarding Ms. A.’s reliability and credibility [36] Ms. A.’s admission of memory issues both generally and due to the consumption of alcohol were concerning. All of theinconsistencies upon which she was cross-examined, however, were peripheral to the alleged sexual assault itself; thus, limited weightwas given to concerns regarding her memory. Her testimony of consuming a great deal of alcohol, passing out and awakening tosomeone attempting to penetrate her anus, was consistent, thorough and unshaken in cross-examination. Ms.

A. was a credible witnessand her evidence on the critical issues is reliable. 4. OTHER CROWN WITNESS EVIDENCE [37] Ms. J.P.’s ability to observe, recall and recount the events to which she gave evidence was also affected by the consumption ofalcohol and the passage of time. Her account differed significantly from Ms. A.’s in that she recalled them travelling via the school busdirectly after class, not consuming alcohol enroute, and that they played “beer pong” as well as another drinking game, “flip cup”. Aswell, she testified that at no time was anyone at the home other than the Accused Mr.

S., her boyfriend K., Mrs. S. and her friend J.,herself and Ms. A. Ms. P. became drunk, an “8 out of 10”, and believed everyone was pretty drunk although she could not state to whatdegree. She recalled her boyfriend becoming physically ill and throwing up in the bathroom all night, and that she passed out in bedaround midnight and did not awake until the next morning. She had no memory of anything taking place between going to bed andawaking the next morning. [38] Ms. P. agreed that she had briefly spoken to Ms. A. the day prior to giving evidence in court, but that Ms.

A. had simply told herto tell the truth: that she was asleep when things happened. [39] The court found Ms. P.’s efforts to diminish the amount of alcohol consumed and state of everyone’s sobriety, unpersuasive.Although no motive to fabricate was suggested by the Crown, the court noted that Ms. P. and K.S. are the separated parents of a five-year-old child. Also noted was counsel’s challenge of Ms. A.’s communication with Ms. P. the day prior. This communication could onlyhave been provided to counsel via his client.

Questions directed to show that a witness has a motive to fabricate evidence are admissible,as is evidence from other witnesses that a witness had a motive to fabricate evidence (R. v. W.B., (ON CA), at para120). Here, the court finds Ms. P.’s evidence to be of minimal value due to concerns regarding her reliability and credibility. 5. THE EVIDENCE OF THE ACCUSED MR. S. (

i) Assessing the reliability of Mr. S.’s evidence [40] Mr. S. told the court that on the day in question he was suspended from school; thus, was at home doing chores including cuttinggrass. This is significantly at odds with the Statement of Admissions at Ex. 2 that admits the events occurred over the evening of January31 to February 1, 2015.

Courts may properly take judicial notice of facts either: (1) so notorious or generally accepted as not to be thesubject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessiblesources of indisputable accuracy: R. v. Potts (1982), (ON CA). This Court therefore takes judicial notice that Januaryin the Peace Region is marked by sub-zero temperatures, snow and a distinct lack of any ability to cut grass. The court therefore hassignificant concerns regarding Mr. S.’s capacity to either observe, recall, or recollect the events to which he testified.

It remains then toassess whether his evidence, or that which is ultimately accepted as reliable, is also truthful. (ii) The plausibility of Mr. S.’s evidence [41] Mr. S.’s version of events is implausible at best. In some respects his testimony was similar to that of Ms. P. and his brother K.:he testified that Ms. A. and the others arrived via school bus; that nobody was significantly impaired; and that Ms. A. displayed noindicia of impairment. Mr. S. testified that Ms. A. would hang off of him and hug him while playing the drinking games and that she wasextra loud, which was out of character for her. Mr.

S. said that at most, he consumed six drinks, as only one flat of 24 drinks were there

for them all. He retired to his room around the same time as K.S. and Ms. P. and did not recall Ms. P. needing help to walk. Ms. A.’ssleeping arrangements were never discussed. [42] Mr. S. testified that he lay in his bed with the lights out, wearing only his boxer shorts. About 10 minutes after laying down, Ms.A. opened the curtain to his room (the doors having been previously removed from his and K.S.’s rooms due to family fights they wouldengage in) and answered with her name when he asked who was there. Ms.

A. then walked to the side of his bed, sat down on the edge,pulled down his bed covers, then his boxer shorts and commenced giving him oral sex. He thought to himself “wow, ok” and did not tellher no or to stop. [43] After two minutes of oral sex, Ms. A. stood, pulled her pants and shirt off and climbed on top of C.S. She grabbed his erect penisin her hand and guided it between her legs and into her vagina and again C.S. lay there and “let it happen”. Ms. A. had “no problemplacing his penis into her vagina”. After about three more minutes, Mr. S. thought he ejaculated but not in Ms. A.’s vagina.

At this pointC.S. became grossed out, both because he was afraid his girlfriend would find out about the sex and by Ms. A. herself. C.S. then pushedMs. A. off of him. This was the only sexual position used and aside of his penis in her vagina, he only possibly touched the top of herthighs with his hands. Contrary to his admission at Ex. 2, Mr. S. denied touching Ms. A.’s anus, but admitted her anus may have comeinto contact with his penis when she inserted it into her vagina. [44] Mr. S. testified that following the sex, Ms. A. wished to cuddle but he told her to leave.

He called her names and demanded sheleave but she refused, so he decided to go sleep on the couch himself. As Mr. S. departed his bedroom, he turned his bedroom lights backon, leaving Ms. A. on the bed awake, with her arms crossed and “pouting like a child”. C.S. saw K. in the hall as he walked to the couch;he then fell asleep and awoke around 8:30 am. Upon awaking, Ms. A. was still in his room and Ms. P. and K.S. were in their room. Uponawaking, Ms. A. acted normally and after she departed with his mother, he received a text message from her threatening to tell hisgirlfriend about them having sex.

As a result, he lied and replied that it must have been J. who had sex with her. C.S. did this just in caseMs. A. showed the texts to his girlfriend. [45] In cross-examination, Mr. S. agreed he had never previously hung out with Ms. A. socially and that they were not previouslyfriends. He did not recall his penis ever touching Ms. A.’s anus and strongly denied any attempt to engage in anal sex with her, althoughhe opined it was possible his penis touched Ms. A.’s anus while she was guiding him into her vagina. [46] C.S. suggested that Ms.

A.’s accusations arose only after he denied having sex with her and agreed that initially J. was charged inrelation to this allegation based on his representation to Ms. A. Mr. S. felt bad at the time that J. was falsely charged because of what hetold Ms. A., but he did not believe anything criminal had occurred so therefore did not speak to police. (iii) Independent evidence to support or contradict Mr. S.’s evidence [47] The admission regarding Ms. A. and Mr.

S. having had vaginal sexual intercourse; him having had physical contact with heranus; and his DNA found on her anus and vagina neither supports nor contradicts consensual or non-consensual sex. Conversely, Mr. S.’sevidence regarding using a lawn tractor to cut the grass is contradicted by the weather that is experienced in January. [48] K.S. testified that Mr. S.’s bedroom lights remained on throughout the incident; this was contradicted by C.S. himself. (iv) External consistency of Mr. S.’s evidence [49] Mr. S. was never interviewed by police and declined to provide any statements. (

v) Internal consistency of Mr. S.’s evidence [50] Mr. S. maintained he was truthful and could recall much of what occurred due to the serious accusation, but in cross-examinationgave detailed answers on some matters, then expressed that he did not recall other related details. One such instance was where C.S.recalled his text discussions with Ms. A., but then forgot her subsequent responses after he blamed J. for the assault. [51] Of concern also was C.S.’s account that Ms. A. initiated sex in his room and would have seen him when he turned on thebedroom light, and yet then accused J. of the sexual assaults.

He testified that he did not think anything criminal had occurred and thus,did not come forward when J. was accused. (vi) The “balance” of Mr. S.’s evidence [52] Mr. S. demonstrated a noticeable animus towards Ms. A. in his testimony in court. In answer to a cross-examination question thatsuggested he believed Ms. A. was drunk, would have a poor memory and thus would believe him when he suggested J. assaulted her, heanswered that she appeared stupid and high and he could not know what went through her head. [53] Mr. S. repeatedly downplayed everyone’s degree of intoxication.

Despite K.S. experiencing head spins and then vomiting andMs. P. herself testifying that she was drunk to the point she went to bed and passed out shortly after, he insisted that everyone was onlymildly intoxicated. Considering the drinking games that were played over a period of hours, between four high school youths aged 15 to17, this does not accord with human experience within all the circumstances. [54] Mr. S. also admitted that he lied to Ms. A. and was aware that J. was subsequently charged with sexual assault. Although he feltbad for J., Mr. S. did not want to be charged.

A credibility assessment also rests in part on a determination of a witness’ motive tofabricate, which in the case of an accused is complicated by their entitlement to the presumption of innocence. Both the innocent and theguilty accused have an interest in not being found guilty of a crime; therefore, any assumption that an accused person will lie to secure anacquittal is contrary to this presumption of innocence, as an innocent person “presumably, need only tell the truth to achieve thisoutcome” (R. v. Laboucan, 2010 SCC 12 , at para 12). Here, Mr. S. admitted to lying to Ms. A., then to remaining silent while

another person was charged for the sexual assault based upon that lie. (vii) Mr. S.’s demeanour while testifying [55] Mr. S. gave his evidence in-chief and responded to questions in cross-examination in a calm and measured fashion. Nothing inhis demeanour detracted from his credibility. (viii) Conclusion regarding Mr. S.’s reliability and credibility [56] This Court has significant concerns regarding Mr. S.’s ability to observe, recall and recollect events of the night in question basedon his recounting of cutting grass earlier on that January day. Equally significant concerns exist in regards to his credibility.

He admittedlying to Ms. A.; he was aware that following his lie, J. was charged with sexual assault and although he felt bad, he wanted to avoidbeing charged so did nothing to stop that process. 6. OTHER DEFENCE WITNESS EVIDENCE [57] Mr. K.S., Mr. S.’s younger brother, testified. K. also stated that the incident took place in either the late spring or summer andthat there was definitely no snow on the ground. As with the accused Mr. S., this greatly undermined the reliability of his furthertestimony. [58] K.S. knew Ms. A. since grade 4 and stated that he, Ms. P. and Ms.

A. took the school bus directly from school to the home andthat no alcohol was consumed on the bus. He agreed that beer pong and flip cup were played, but that he had little to drink as hepreferred to smoke marijuana. He would smoke outside to hide his marijuana use from his mother, who was with them in the home theentire night. He observed Ms. A. hanging off of Mr. S. and she would hug C.S. while playing the games, but she displayed no indicia ofimpairment and was a “5 out of 10” for intoxication when he retired to bed. Mr.

K.S. admitted he had “bed spins” upon laying down andhad to go to the bathroom where he was physically ill the rest of the night, but blamed this on food allergies and not the consumption ofalcohol or marijuana. He testified that his girlfriend Ms. P. was intoxicated and was stumbling and that she was more drunk than heobserved Ms. A. to be. [59] Immediately prior to becoming sick, K.S. heard Mr. S. yell “fuck off”, “piss off” and “get the fuck off me”.

He then heard hisbrother yell “Get the fuck out you disgusting fucking pig”, followed by “fine if you won’t get the fuck out of my room I’m going to sleepon the couch myself”. His brother’s bedroom light was on this entire time, which K. could see from the many large holes in the wallseparating their rooms. He testified that no one else but he and Ms. P., Mr. S., Mrs. S. and Ms. A. were in the home at the time. [60] K.S. did nothing to hide his animus towards Ms. A.

He did not approve of how she acted during that period as she would get outof hand, drink and do stupid things like pick fights with people and generally create drama that he did not like. He also denied being atall intoxicated, although he admitted the “bed spins” were due to alcohol consumption. He testified that this incident occurred in thesummer when there was no snow on the ground, and that he hid smoking marijuana from his mother by simply smoking it outside of theresidence itself. K.S. was neither reliable nor credible and evinced a distinct animus against Ms. A. throughout his evidence.

I reject hisevidence in its entirety. DISPOSITION [61] The disposition of this matter revolves around the testimony of two people: the complainant Ms. A. and the accused Mr. S.Evidence of two additional witnesses was heard on important but peripheral matters, but to varying degrees both witnesses lackedreliability, credibility, or both. The two descriptions of the alleged sexual assault are not merely different

interpretations of the sameevent; they are irreconcilable. The court cannot simply view such evidence as a simple credibility contest, rather it must consider theevidence as a whole (M.R.E.). Also central to the issue before the court is the degree of intoxication, if any, that Ms. A. was under andwhether she had the capacity to consent. [62] Within the context of the Crown’s enduring burden to establish the accused’s guilt beyond a reasonable doubt, this Court neitherbelieved nor is left in reasonable doubt by the evidence of Mr. S. His evidence that Ms.

A., a person he only knew from a few schoolclasses, initiated the sexually aggressive acts he described, is rejected. Likewise, the evidence of Mr. S. and that of other witnesses whichdownplayed the state of intoxication of all participants at the house party, and especially Ms. A., when considered in all of thecircumstances, has no air of reality. A defence must be supported by sufficient evidence to give it an air of reality before it warrantsconsideration (R. v.

Flaviano, 2013 ABCA 219 , at para 44, affirmed at 2014 SCC 14 ). [63] Again, a trial is not a credibility contest requiring the court to decide that one or the other of conflicting versions is true – rather,all the evidence must be carefully assessed and considered. Even though the accused’s evidence and that exculpatory evidence heardfrom other witnesses is rejected, this does not mean the Crown’s version is true. The court must still be persuaded beyond a reasonabledoubt of the guilt of the accused based on the evidence, or lack of evidence, accepted. [64] This Court accepts that Ms.

A. has no memory of the sexual activity in question, aside of the attempted penetration of her anus.Where a court accepts beyond a reasonable doubt that a complainant has no memory of sexual activity, a credibility finding that thecomplainant did not subjectively consent based on their evidence that they would not under the circumstances at the time have consentedto sex with the accused is open to the trier of fact (R. v. Kontzamanis, 2011 BCCA 184, at para 31). Here, the court does so find and willfactor this into its decision. [65] Given that sexual activity occurred involving Ms.

A. of which she does not now remember, the court must examine her capacityto consent given the evidence of drinking. In all of the circumstances, including: a house party involving four teenagers engaged indrinking games all evening; the youthfulness and size of the complainant; the number of drinks consumed by the complainant both

through her own evidence and that from other witnesses including the accused; and the indicia of intoxication of others at the partywhich matches the complainant’s own evidence of subjective intoxication; this Court finds beyond a reasonable doubt that Ms. A. lackedthe capacity to subjectively consent due to the overconsumption of alcohol. As such, she lacked the necessary operating mind to consent.Given her intoxicated state, she would have been unable to understand the physical act and that the act was sexual in nature, the identityof Mr.

S. as the sexual partner, or that she had the choice to refuse to participate in the sexual activity. [66] In the event Ms. A. did have the mental capacity with which to consent, the court must then look to the circumstances of thealleged sexual activity. Accepting Ms. A.’s evidence that she was passed out when the sexual activity took place, awaking only whenanal penetration was attempted and then only to the extent she was able to say stop, roll away and then passed back out, she was unableto give consent to the sexual activity.

The only relevant period of time for a complainant to give consent is when the touching occurs(Ewanchuk at para 26). No advance consent prior to unconsciousness can establish consent for the purpose of the actus reus of thisoffence (R. v. J.A., 2011 SCC 28 , at para 50). [67] Counsel for Mr. S. suggested that should the court find the Crown has met its burden with regards to the actus reus by findingthat Ms. A. lacked capacity to consent due to alcohol consumption, or subjectively did not consent, the defence of honest but mistakenbelief is still available and must be considered.

With great respect, this Court disagrees. The law does not require an accused to testify inorder to establish an air of reality to this defence, but here, Mr. S. did testify. His evidence supported only the defence of consent, to theexclusion of the defence of mistaken belief. His testimony was that Ms. A. initiated the sexual acts – all of them. His evidence was sheshowed no indicia of impairment or any other impediment to conscious thought and in fact, discounted that she was intoxicated to anygreat extent at all. Mr. S.’s evidence, if believed, would suggest that Ms.

A. raised these allegations because she was mad that hesuggested J. had sexually assaulted her, or that he refused to let her sleep in the bed after the sex that she initiated. [68] The Supreme Court in R. v. Osolin, (SCC), examined the logic necessary to allow mistaken belief to beconsidered in cases where the evidence conflicted diametrically as to whether the complainant did in fact consent. In that case, thecomplainant simply said she communicated a lack of consent while the accused claimed she did express consent. Here, Mr.

S. says Ms.A. aggressively initiated every aspect of the sexual acts, while she says she was unconscious. Courts may accept portions of acomplainant’s evidence and portions of the accused’s evidence and spliced together, find a scenario that could give rise to the defence ofmistaken belief (R. v. Park, (SCC), at paras 25-26, 34-35, and Ewanchuk at paras 41-52). Common sense and logicmust still however guide a court in order to accept portions of the complainant’s evidence and portions of the accused evidence andsplice this mistaken-belief scenario together. As expressed in R. v.

Williams, 2013 ABCA 110, at para 13, “often one cannot cobble orsplice together two diametrically opposed accounts of the facts, to create evidence of honest belief in consent. Then the issue iscredibility, not mistaken belief: R. v. Park, supra (paras 19, 25).” [69] More recently, at para 121 in Barton, the court stated: [121] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate thatthere is an air of reality to the defence.

This necessarily requires that the trial judge consider whether there is any evidence upon which areasonable trier of fact acting judicially could find (1) that the accused took reasonable steps to ascertain consent and (2) that the accusedhonestly believed the complainant communicated consent.

This Court recently confirmed that where there is no evidence upon which thetrier of fact could find that the accused took reasonable steps to ascertain consent, the defence of honest but mistaken belief incommunicated consent must not be left with the jury . . . [70] This Court finds that the defence of honesty but mistaken belief in communicated consent is not available to Mr. S. Havingrejected Mr. S.’s evidence, there is no evidence remaining before this Court upon which to find any objectively and subjectivelyreasonable steps were taken in the circumstances known to him at the time (R. v.

Cornejo, (ON CA), at para 22,leave to appeal refused [2004] 3 S.C.R. vii). Reasonable steps do not include: . . . steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps [nor can anaccused] attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching . . .

This is a particularlyacute issue in the context of unconscious or semi-conscious complainants” . . . [Barton at para 107, citing with approval Sheehy, Elizabeth A. “Judges and the Reasonable Steps Requirement: The Judicial Stance onPerpetration Against Unconscious Women”, in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’sActivism. Ottawa: University of Ottawa Press, 2012. at p. 537.] [71] There was no way for Ms. A. to communicate consent by either words or conduct, as she was unconscious. Mr. S. intended totouch Ms.

A. in a sexual way knowing of, or being reckless of, or wilfully blind to, this lack of consent. The Crown has therefore met itsburden regarding mens rea. [72] Mr. S., you are found guilty as charged of the offence of sexual assault. _____________________________ The Honourable Judge D. Reeves Provincial Court of British Columbia