Her Majesty the Queen - v. -, 2022 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2022 SKPC 11 Date: March 4, 2022 Information: 991128380 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.M.S. Ms. Kristen Hubbard For the Crown Mr.

Ryan Patmore 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 ] As young people transition into adulthood, they make a variety of decisions every day. Many of these decisions involve

friendships and social encounters. One area where young people are required to make decisions involves their sexual experiences. On this occasion, four young people made a decision to hang out socially with family, and then they made another decision to find some privacy where they could be alone and explore their relationships. This case deals with the actions of two of these young people and the decisions they made. [ 2 ] J.M.S. (JMS) is charged with sexually assaulting the complainant, A.D. (AD). There is no dispute that a sexual encounter occurred between these two young people.

The issue is consent – actual or ostensible. The complainant testified that she did not consent to the sexual encounter; that she specifically said “no” to JMS (and other words to that effect); and that she did so several times during their encounter. However, JMS states the encounter was consensual and that, although no words were spoken between the two of them, the complainant communicated her consent through active and willing participation.

In the alternative, JMS argues that he held an honest albeit mistaken belief that the complainant had consented to the sexual encounter that occurred. [ 3 ] For the reasons that follow, I am satisfied beyond any doubt that the complainant did not want to have sex with JMS and that JMS did not hold an “honest” belief that she did. Based on the evidence, it is possible that the complainant verbalized her objection in the fashion she testified - but it is also possible that she did not. It is possible that the complainant froze – that she may have thought “no” in her mind but did not speak her words out loud.

In either event, she did not offer any overt resistance to JMS’s sexual advances. However, the absence of “no” is not the same thing as saying “yes”. JMS was reckless in proceeding to have sex with the complainant in the face of ambiguous circumstances. Youth and wilful blindness caused him to fail to take reasonable steps to ascertain the complainant’s voluntary agreement. Because he did not take reasonable steps in the circumstances known to him, JMS cannot be said to have held an “honest” belief that she was consenting. [ 4 ] As a result, JMS is guilty of sexual assault.

THE EVIDENCE [ 5 ] A trial was conducted on May 25, 2021 and August 30, 2021. The Crown called three witnesses – the complainant (AD); her friend, Isabella; and Constable Justin Parenteau, a member of the Prince Albert Police Service. The defence called two witnesses – the accused, JMS; and his friend, Logan. [ 6 ] All of the individuals involved (other than the police officer) are about the same age. At the time of the incident, JMS was 17 years of age. As a result, he was charged as a youth under the Youth Criminal Justice Act , SC 2002, c 1 . The complainant and Isabella were also 17 years at the time.

Logan was an adult – albeit only 18. There is no issue with respect to jurisdiction of this Court. All relevant matters occurred in Prince Albert, Saskatchewan. In additional, there is no issue with respect to identity. All the parties were well known to each other. Crown Evidence : The Complainant’s Testimony : [ 7 ] In the days leading up to February 17, 2020, the complainant and her friend, Isabella, made plans to spend the weekend together. Their plans included going to a Raiders hockey game in Prince Albert and hanging out with JMS and Logan.

At the time, Isabella was dating Logan and she wanted to spend time with him. JMS and Logan were friends. [ 8 ] While there was a romantic relationship between Isabella and Logan, such was not the case with the complainant and JMS. They had known each other for about four years while attending high school but their relationship had not been romantic. They had hung out less than 10 times. The complainant agreed with defence counsel that JMS was a nice guy and that she had trusted him.

As some point on February 17, 2020, the complainant and Isabella became aware that JMS and Logan were at Logan’s place in Prince Albert. It was agreed that the girls would drive over and hang out with them at his place. At Logan’s Place :

[ 9 ] The complainant testified that all four of them were hanging out in the basement. The boys were playing video games and Logan’s younger brother came downstairs a couple of times – to Logan’s annoyance. At some point, Isabella and Logan went to his bedroom so they could have some privacy, leaving JMS and the complainant alone in the basement. The complainant was sitting on the couch and JMS was nearby playing a video game. At some point, when JMS and the complainant were alone, they kissed. The complainant testified that JMS leaned over to her and kissed her.

She said that, although she was initially surprised by the kiss, she went along with it (meaning, she kissed him back). The complainant thought the kiss lasted for two to five seconds and ended when the door to Logan’s room began to open and the complainant pulled away. JMS did not attempt to kiss her further. The complainant testified that she did not think the kiss meant anything (meaning, that she and JMS were still “just friends”). The complainant said that, although they kissed, she did not intend to take their friendship in a romantic direction.

In cross-examination, she denied “making out” with JMS (engaging in prolonged kissing with him). She also denied that she initiated the kiss with him or that she touched him romantically or flirtatiously prior to the kiss. [ 10 ] At approximately 9:00 p.m., they all decided to leave. Apparently, Logan’s father was coming home and the four decided to go somewhere else. It was agreed that they would go to Logan’s grandparents’ house. His grandparents were not at home at the time and they decided to go there because they did not want to have to worry about little kids or parents being around.

On the way to the house, they stopped and picked up some energy (non-alcoholic) drinks. At Logan’s Grandparents’ House : [ 11 ] The complainant testified that they all went to a common area in the basement. They were talking, watching “TikTok” videos, and the boys were playing pool. At some point, all four migrated to one of the bedrooms adjacent to the common area. Sometime after that, Logan and Isabella left to go to a different bedroom on the other side of the common area. The complainant was aware that Logan and Isabella wanted to be alone – possibly so that they could be intimate.

JMS and the complainant stayed behind in the bedroom after the other two left. They were alone, the room was dark, and the door was closed. The complainant described the house as “fairly quiet” and said that they were both lying on the bed using their phones. The complainant testified that she was texting Isabella and she thought it was around midnight. [ 12 ] The complainant testified that JMS initiated a sexual encounter by rolling over and getting on top of her. The complainant stated that there was no conversation or romantic interaction between them prior to JMS touching her.

Although she did not know when he did so, the complainant testified that JMS had removed his pants prior to touching her. She said she did not see him remove his pants because she was facing toward the wall and was on her phone at the time. She testified that she was wearing leggings and that JMS removed them by pulling them down. The complainant testified that she immediately said “no” and told JMS “I don’t want this”. In cross-examination, she specifically denied kissing JMS prior to him touching her. She also denied helping him remove her pants.

The complainant testified that she told JMS, “No, I’m not comfortable with this” as he began touching her, but she said he was not deterred. [ 13 ] She stated that JMS pulled her leggings down in one motion and that her panties came off with her pants. JMS then got on top of her and began penetrating her. In cross-examination, the complainant was asked if JMS had to overcome her resistance. She responded by stating, “I wouldn’t necessarily call it an attack because he wasn’t violent in the least.

He just didn’t listen when I had persisted that I didn’t want to have sex with him.” The complainant was also asked if JMS “pounced” on her. She answered by saying, “He didn’t pounce; he had rolled on top of me. It wasn’t a violent attack at all.” Finally, in cross-examination, the complainant denied that she pulled her own pants down after JMS began doing so, saying “No, that is not what happened”. [ 14 ] The complainant testified that the sexual encounter continued for approximately 10 or 15 minutes and ended when JMS got up off her.

In cross-examination, the complainant acknowledged that the sexual encounter may have ended – that JMS may have gotten off her - because she had said “no”. The complainant testified that JMS did not say anything to her immediately before, during or after sex. The complainant estimated that she said “no” five or six times and that she did so loudly – louder than ordinary words - not screaming but loud enough to be heard by others.

The complainant told the Court she thought she was loud enough for Logan and Isabella to hear her from the room they were in. [ 15 ] The complainant testified that she did not consent to the sexual encounter that occurred with JMS. The complainant also testified that JMS was not wearing a condom and she was uncertain whether or not he had ejaculated. The complainant testified that JMS was not violent or threatening during the sexual encounter – he was just persistent.

After the Encounter : [ 16 ] The complainant testified that, after the encounter ended, JMS got up, got dressed, went to the room that Logan and Isabella

were in, and told them that it was time to leave. The complainant testified that JMS did not say anything to her for the rest of the night. [ 17 ] When alone with Isabella, the complainant told her that a sexual encounter had occurred. The next day, with Isabella’s assistance, the complainant obtained a “Plan B” (morning after pill). For the next ensuing days, the complainant was uncomfortable and experienced heavy bleeding. [ 18 ] The complainant spoke with Isabella about the incident. She also asked her cousin about the symptoms of pregnancy.

But other than these individuals, the complainant did not disclose to anyone that a sexual encounter had occurred or that it had been non- consensual. The complainant testified that she did not go to the police because she did not want to admit to anyone what happened and because she wanted to deal with it herself. However, by early March of 2020, she had missed her period and she was concerned that she might be pregnant. As a result, she told her parents what happened. She then went to a doctor for a pregnancy test.

While she was not pregnant, it was determined that she had contracted chlamydia (a sexually transmitted disease). [ 19 ] The complainant testified that, after learning she had contracted an STD, she decided that “it was time to take it (report it) to the police”. By this time, her parents were aware of the incident and had encouraged her to go to the police. Isabella’s Testimony : [ 20 ] Isabella’s description of the events of February 17, 2020, was consistent with the complainant’s evidence. She and the complainant were best friends and they were hanging out for the weekend.

On February 17, 2020, they made plans to meet Logan and JMS. At the time, she was dating Logan. [ 21 ] While at Logan’s grandparent’s place, Isabella testified that they all started out in the common area but, contrary to the complainant’s recollection, she and Logan left from that room to go to one of the bedrooms. Isabella said that JMS and the complainant were sitting on the couch in the common area when they left to go into the bedroom. [ 22 ] Isabella said that, while she was in the bedroom with Logan, she was messaging the complainant (on Snapchat).

Isabella understood that JMS and the complainant were also in a bedroom but, from her messages with the complainant, she understood that they were “completely fine”. [ 23 ] At some point, Isabella testified that she and Logan heard rustling noises coming from the other room, but she and Logan did not think anything of it. Isabella said they did not hear any voices coming from the other room. At some point after that, JMS knocked on the door to their room and said, “We have to go. It’s past my curfew”. [ 24 ] All four left in the same vehicle.

Isabella testified that the complainant “didn’t say very much – she was very quiet” when they left. From this, Isabella understood that something happened, but she did not want to talk. After they dropped off the boys and when they were alone, the complainant began to cry. Isabella said she “just burst into tears” and was “just, like hysterical”. The complainant told Isabella what happened earlier that night.

But the complainant also told Isabella that she did not want to talk about it and just wanted to leave it alone. [ 25 ] Isabella testified that about a month after the incident she got a call from the complainant, who was in tears. She told Isabella that she had talked to her mom and reported the incident to police. They talked about the incident that day and how the complainant was feeling. However, over the coming weeks a distance grew between them. Isabella explained that “it really affected both of us, like really uncomfortable, and like, unsettled all the time.

And so we just kind of became distant for a little bit”. Defence Evidence : JMS’s Testimony :

[ 26 ] JMS testified that on February 17, 2020 he was hanging out with his friend, Logan. They were at Logan’s place playing video games. Logan asked if Isabella and the complainant could come over. Logan was dating Isabella at the time and the complainant was someone that JMS knew as they had gone to school together. The girls arrived around 2:00 or 3:00 p.m. [ 27 ] JMS testified that, at the time, he and the complainant were acquaintances. They shared some classes in high school, had common friends, and occasionally saw each other at parties.

At Logan’s Place : [ 28 ] JMS testified that they were in the basement at Logan’s place hanging out with the girls. He was sitting on a chair playing a video game on Logan’s PlayStation (PS4). The complainant, Logan and Isabella were on the couch. They were talking and hanging out. [ 29 ] JMS said that he and the complainant were alone for approximately 35 to 40 minutes when Logan and Isabella were in Logan’s room. When they were alone, JMS continued playing the video game and the complainant was on her phone. They also talked to each other - they talked about school, life and recent events.

At some point during this period, JMS said that the complainant grabbed him by the side and said, “Oh, you have love handles”. JMS continued playing the video game. JMS testified that, soon after that, he and the complainant “both kind of like looked at each other, and then we stood up and, like, started kissing”. JMS said it was mutual – “that neither of [them] really engaged to start it”. JMS acknowledged that this was unusual given they were just friends - acquaintances. JMS said he did not really know why it happened, but it was mutual and lasted for about five seconds.

JMS testified that they stopped kissing when they heard Logan’s door opening. [ 30 ] Soon after all four left Logan’s place. JMS said that Logan’s dad was coming home soon, that Logan’s little brother was bothering him, and that Logan wanted to be with Isabella. Logan told the others that his grandparents’ place would be empty and they could hang out there. JMS testified that they all went together in the same vehicle. The complainant was driving. JMS said they drove around together for about an hour-and-a-half and then they went to Logan’s grandparents’ place.

At Logan’s Grandparents’ House : [ 31 ] At Logan’s grandparents’ place, the four went down into the basement and hung out in an open, common area. JMS said they were sitting on couches and all four of them were on their respective phones. There was a pool table and, at some point, Logan and JMS played a game. JMS testified that, after a while, Logan and Isabella went into one of the bedrooms. JMS testified that the four of them were in the common area when Logan and Isabella left.

JMS testified that, after Logan and Isabella left, he and the complainant remained in the common area sitting on the couch. [ 32 ] JMS testified that, while in the common area, he and the complainant were on their respective phones. At some point, the complainant laid her head on his shoulder. JMS described this as “cuddling”. JMS testified that he asked the complainant if she wanted to go into one of the bedrooms with him. She said “yes” - or words to that effect.

They went into one of the bedrooms - the bedroom on the opposite end of the basement from the room that Logan and Isabella were in. [ 33 ] Once in the bedroom, JMS testified that he and the complainant lay on the bed – with him on the right and her on the left side with a gap of about a foot between them. JMS said they were each lying on their back, they were each on their phone, and the room was dark. JMS testified that, after about five minutes, they each turned off their phone and rolled over facing each other.

JMS testified that they started kissing and that his hands were around her waist and her hands were on the back of his head. JMS denied that the complainant told him that she was not comfortable with what was happening. He said she did not say anything to that effect. To the contrary, JMS said that the kiss started when the complainant leaned in toward him. [ 34 ] JMS testified that, although they did not say anything to each other, he gestured with his hand (to invite the complainant to engage in a sexual encounter) and that he did so by slowly starting to take her pants off.

JMS testified that she then willingly took her own pants off and that her underwear came off with her pants. JMS testified that, after the complainant took her pants off, he removed his pants and then got on top of her. JSM testified that neither of them said anything during this part of the encounter which lasted for about 30 or 40 seconds.

[ 35 ] JMS was asked what the complainant was doing or saying as sexual intercourse began. The exchange with his counsel went as follows: Q: And as you’re doing that, I want to be very, very clear, what, if anything is she saying or doing? A: She’s not saying anything, and she wasn’t really doing anything either. She was laying in bed, but as I was getting on top of her, she, like, kind of, like, put her hand on my side. Q: Okay. Was she pushing you with her hand? A: No Q: Okay. You – A: It was more of a guide almost. [ 36 ] JMS then penetrated the complainant.

JMS described the complainant’s body language as “going with what was happening”. JMS testified that, during intercourse – which lasted for approximately three to five minutes – neither he nor the complainant said anything. JMS denied that she said “no” or any words to that effect. He said she did not resist him with her body. To the contrary, JMS testified that the complainant was moaning which he interpreted to mean that “she seemed to be enjoying it”. His testimony in this regard was as follows: Q: Okay. The two of you start having sexual intercourse? A: Yes. Q: Okay. And then how long does that last for?

A: I’m going to say between 3 and 5 minutes. Q: Okay. During that 3 to 5 minutes, is she saying anything to you? I’m going to repeat the same question over and over again: Is she saying “no” to you? A: No, she is not. Q: Is she saying anything that could be interpreted as a “no” to you? A: No, she is not. Q: Is she resisting you with her body at all? A: No, she is not. Q: As you are in the act, how would you describe her? What is she doing? A: She seemed to be enjoying it like I was. Q: Okay. Describe that in detail. How would you – A: I guess by moaning. There are not words really being said.

Q: I know it’s uncomfortable to talk about it, but we need these details, okay? A: Yeah. Q: Are you talking about moans of pleasure? A: Yes. [ 37 ] JMS testified that he ended intercourse because he was not wearing a condom and he did not want to ejaculate in the complainant. JMS testified that, after the encounter, JMS put his clothes back on, the complainant put her clothes back on, and they lay on the bed for a few minutes. JMS said they did not talk about what had just happened. JMS testified that the complainant did not display any signs that she was upset with what had occurred.

When asked by his counsel as to how his platonic relationship with the complainant could escalate to sex in such a short period of time, JMS stated “I feel like it was the tension in the room from Logan and (Isabella) getting together that had just left me and [the complainant] in a room while they were off doing whatever they – they’re doing, and it just left us two alone in a room”.

[ 38 ] JMS explained that, it was about 12:30 a.m. and he and Logan had a curfew of 1:00 a.m. – meaning they needed to go home right away. JMS testified that they all left the house together and that the complainant and Isabella dropped JMS and Logan off at Logan’s place. [ 39 ] JMS testified that he and the complainant did not have any communication after the encounter.

About three days after the incident, JMS realized that the complainant had blocked him on SnapChat (a messaging platform). [ 40 ] In cross-examination, JMS acknowledged that the complainant’s decision to go into a bedroom and lie on a bed with him did not mean she was consenting to have sex with him. He also acknowledged that there was no conversation between the two of them about having sex.

However, JMS testified that he assumed the complainant wanted to have sex with him when they were in the bedroom and he made that assumption for a number of reasons: because they kissed while they were lying on the bed – a kiss that he said was initiated by her; because, when he started taking the complainant’s pants off, she responded by removing them herself; because she did not say “no” or take any steps to stop him when he got on top of her; because she was moaning during the encounter; and because she put her hand on his side in an effort he thought to guide him.

JMS acknowledged that he did not ask the complainant if she wanted to have sex with him and he did not take any steps to confirm whether she did or not. Logan’s Testimony : [ 41 ] Logan’s description of the events of February 17, 2020 was largely consistent with that of the other witnesses, with one exception. On the issue of how JMS and the complainant ended up alone in a bedroom at Logan’s grandparents’ place, Logan corroborated the complainant’s version of events.

Contrary to JMS’s and Isabella’s testimony, Logan stated that, when he and Isabella left JMS and the complainant to go to a bedroom, all four of them had already migrated into one of the bedrooms. In other words, all four of them were already in a bedroom when he and Isabella left to be alone. [ 42 ] Logan agreed with Isabella that they did not hear any conversation or voices coming from the room that JMS and the complainant were in. Evaluation of the Evidence and Findings of Fact : [ 43 ] Other than the sexual encounter, most of the testimony as to what happened on February 17, 2020 was very similar.

There were a few inconsistencies in the evidence as to what happened - such as which vehicle people were in; and when and how JMS and the complainant ended up in the bedroom. It is not unusual for inconsistencies to occur in testimony and I find little significance in these inconsistencies in terms of the credibility of the witnesses and the reliability of their evidence. Simply put, people seldom remember the same events exactly the same. [ 44 ] However, of greater import, the Court heard two different narratives as to what happened when JMS and the complainant were alone in the bedroom.

From the testimony, I must decide what evidence I accept and, based on that evidence, I must then decide whether or not the Crown has proven its case. In evaluating the evidence of JMS and the complainant as to what happened in the bedroom, I have considered a number of factors. These factors include: (

a) the overall likelihood or plausibility of each witness’ evidence, (

b) the consistency of that person’s evidence with surrounding events, (

c) the internal consistency of the evidence, and (

d) the demeanor of the witness and the “balance” of his/her evidence. [ 45 ] I am mindful that I must not simply compare the testimony of JMS and the testimony of the complainant, and then choose which version of events I prefer or believe. And I must be careful not to evaluate any of the evidence in isolation. To the contrary, any decision I make to reject or accept any testimony must be based on the totality of evidence I have heard in these proceedings.

Furthermore, JMS is presumed to be innocent and, if I have reasonable doubt as to the evidence, I must resolve that doubt in his favour. [ 46 ] I wish to begin my evaluation of the evidence by noting that I found the narratives of both JMS and the complainant to be (for the most part) logical and plausible. I also found the demeanor of all of the witnesses to be balanced and appropriate. However, it was apparent that all of the witnesses were young and inexperienced, and I have taken this factor into consideration. Did the complainant say “No”? Answer: I do not know.

[47] The complainant testified that she repeatedly said “no” to JMS and used words to communicate that she did not want to havesexual intercourse with him. She testified that when she said “no”, she did so loudly – louder than an ordinary speaking voice – loudenough to be heard in the other room. JMS denied that the complainant said “no” or any words to that effect. To the contrary, he saidthat neither he nor the complainant said any words to each other during the encounter.

In other words, neither of them used any words tocommunicate either consent or non-consent to the sexual encounter that occurred. [48] While I am satisfied beyond any doubt that the complainant did not wish to have sexual intercourse with JMS on February 17,2020, I have a doubt in my mind as to whether she spoke those words out loud. This doubt arises because the house was very quiet at thetime and, while Isabella and Logan heard sounds coming from the other room, they did not hear any voices.

While it is entirely possiblethat the complainant did verbalize her objections, the fact that Logan and Isabella did not hear the complainant causes me to have a doubtas to whether or not she said the words loud enough to be heard.

Furthermore, the complainant’s description of JMS’s conduct as notbeing “violent or threatening” but rather just “persistent” is more consistent with JMS being persistent in the face of ambiguouscircumstances than persistent in the face of spoken words of objection from the complainant. [49] The complainant testified that she said “no” several times and verbalized her objections loudly. Based on the evidence, it isentirely possible that is what happened – she just did not speak loud enough for Logan and Isabella to hear her voice in the other room.

However, I have not been satisfied beyond a doubt that she did speak her words out loud. Based on the evidence, I believe it is possiblethat the complainant froze and, while she may have thought the words in her mind (or maybe whispered the words), it is possible that shedid not speak loud enough to be heard. Clearly, she did not speak loud enough to be heard by Logan and Isabella. Did they kiss again while at Logan’s grandparents’ place?

Answer: Probably. [50] While the complainant acknowledged that she kissed JMS at Logan’s place earlier in the night, she denied kissing him whenthey were at Logan’s grandparents’ place. Her testimony was clear, and compelling - but then so was JMS’s testimony. Simply put, I donot know whom to believe on this point. However, in light of the kiss that occurred earlier in the evening when they were alone, it isentirely possible that they kissed again when they were alone again at Logan’s grandparents’ place. Did the Complainant Assist in the Removal of her own Pants?

Answer: No. [51] JMS testified that, after they kissed, he initiated a sexual encounter with the complainant by slowly beginning to remove herpants. He testified that she responded by cooperating and removing her pants on her own. JMS said he then removed his pants and got ontop of her. The complainant testified that it was JMS who removed her pants. She denied assisting him in doing so or removing her pantsin response to his gesture. In either event, they both agreed that the complainant’s underwear came off with her pants. The complainant’stestimony on this point was clear, cogent and compelling.

Her tone, inflection and demeanor while testifying were all consistent withsomeone whose personal integrity had been violated. On the other hand, JMS appeared to genuinely believe the complainant had assistedin the removal of her own pants. I find that the complainant did not assist in the removal of her own pants. On this narrow point, JMS’sperception of what happened was wholly overwhelmed by the cogency of the complainant’s testimony.

The only logical inference that Ican make from the evidence I heard - and the conclusion to which I am inescapably drawn - is that the complainant did not assist in theremoval of her pants but JMS assumed that the complainant had because she did not stop him as he was removing them. [52] I find that the complainant did not actively assist in the removal of her pants. On the other hand, she did not resist JMS’sefforts to remove her pants either.

In my opinion, this conclusion is the only rational inference that can be drawn from the evidence.Again, I note that the complainant said the encounter was not an “attack”; that JMS was not “violent or threatening”. Rather, shedescribed him as being “persistent” in the face of her objections – objections that I find she may not have spoken loud enough to beheard. I also note that JMS testified that, at this point in the encounter, the complainant “wasn’t really doing anything”.

Simply put, Ifind, based on the totality of the evidence, that the complainant acquiesced to the removal of her pants, but she did not actively assist withtheir removal. ANALYSIS [53] 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 reus (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 of

sexual 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. [54] 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 JMS. 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 or I do not know whom to believe, again I must acquit. In a criminal trial, the burden never shifts fromthe Crown to prove its case and to do so beyond a reasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR 742 at pages757-58. [55] As I have already noted, there is no dispute that there was physical contact between JMS and the complainant, that this contactwas sexual in nature, and that JMS intended that contact to occur.

However, through counsel, JMS advances two defences; first, that thecomplainant is not being truthful when she denies that she consented; and second, that, if the complainant, in her own mind did notconsent, that JMS held an honest, albeit mistaken, belief that she was communicating her consent through her conduct. Defence counselargues that the evidence heard by the Court should at least give rise to a reasonable doubt on this issue of consent and thus takes theposition that the Crown has not proven its case. [56] As this case turns on the issue of consent, some background may be helpful.

Consent in the Context of Sexual Assault [57] The Supreme Court of Canada reviewed the concept of consent in the context of sexual assault in R v J.A., 2011 SCC 28,[2011] 2 SCR 440 [JA]. In this particular case, the Court was concerned with whether a complainant could consent to sexual activity inadvance of that activity taking place – to sexual activity taking place while she was unconscious. The majority, led by McLachlin C.J.,held that she could not do so, emphasizing the significance of obtaining timely consent to sexual activity.

Paragraphs 23, 24 and 25 ofthis decision are instructive on the meaning and significance of consent: [23] A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reusand the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent.Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question:Ewanchuk.

As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is notobtained. [24] A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consentingto the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest butmistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity.

However, asdiscussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence. For instance, the accused cannotargue that he misinterpreted the complainant saying “no” as meaning “yes” (Ewanchuk, at para. 51). [25] The issue in this case is whether the complainant consented, which is relevant to the actus reus; the Crown must prove theabsence of consent to fulfill the requirements of the wrongful act.

However, the provisions of the Criminal Code with respect to themens rea defence of honest but mistaken belief also shed light on the issue of whether consent requires the complainant to have beenconscious throughout the duration of the sexual activity. [58] As can be seen, 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 the complainant in her mind wanted the sexual contactto take place. As such, the focus at this stage is on the complainant’s subjective intent.

For the second stage, the dominant issue iswhether JMS honestly believed that the complainant had affirmatively communicated her consent through her actions. As such, the focusat the second stage is on JMS’s state of mind and how he perceived the complainant’s actions. Actus Reus - Did the Complainant Voluntarily Agree to the Activity that Occurred? [59] Counsel for JMS took the position that the totality of the evidence should give rise to a reasonable doubt as to the

complainant’s assertion of non-consent. Counsel argued that his client was a credible and reliable witness and that his testimony described the complainant as a willing and active participant. Counsel argued that the complainant kissed his client, that she voluntarily removed her own pants in response to his invitation, that she moaned in pleasure, and that she used her hands to guide JMS during their encounter. Counsel for JMS argued this conduct ought to raise a doubt when the complainant now says she was an unwilling participant.

In addition, counsel for JMS argued that the complainant’s testimony was at times self-serving, evasive and inconsistent. Simply put, counsel stated that the complainant was not being honest when she said that she did not consent to the sexual encounter that occurred. Counsel pointed to several examples that should cause the Court to discount the complainant’s testimony or, at least, raise a doubt in the Court’s mind as to whether or not she was being truthful.

I will address these arguments first. [ 60 ] Counsel for JMS observed that the complainant failed to mention in her direct examination the kiss that occurred at Logan’s place. Counsel argued that this failure was an example of an attempt by the complainant to conceal potentially probative evidence and that I should discount all of her evidence because of this omission. I am not persuaded by this argument. Although she did not mention the kiss in direct examination, in cross-examination the complainant was asked whether anything had “led up to” the sexual encounter with JMS.

In answer to that question, the complainant explained that she and JMS had kissed when they were alone earlier in the evening at Logan’s place. When asked to explain why she did not mention the kiss in direct examination when she was describing the events that occurred at Logan’s place, she indicated that she did not think the kiss was “intimate” or that important. Considering the totality of the evidence and being mindful of the complainant’s age, I am not persuaded that she was being evasive or attempting to conceal potentially probative evidence.

Contrary to counsel’s assertion, the complainant was open and transparent in her testimony. When asked whether anything had led up to the sexual encounter, she readily disclosed that she and JMS had kissed earlier in the evening. She was subjected to extensive cross-examination – particularly so for a young person - and her evidence remained cogent and compelling. I observed no examples of her being evasive or attempting to obfuscate any evidence. [ 61 ] Defence counsel also noted that the complainant did not allege sexual assault until after she discovered that she had acquired a sexually transmitted disease.

Counsel suggested that the complainant was looking for someone to blame. Again, I am not persuaded by this argument. In my opinion, it is a specious argument. 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 .

I find nothing in the nature of how, when or why the complainant disclosed her allegations to the police (or anyone else) that undermined her credibility. [ 62 ] I am satisfied beyond any doubt that the complainant, in her own mind, did not wish to have sexual intercourse with JMS on February 17, 2020. While I may have a doubt as to whether or not she vocalized her objections or as to whether or not she kissed JMS when on the bed, I have no doubt that she, in her own mind, did not want to have intercourse. Her subjective non-consent was palpable from her testimony.

The complainant’s demeanor, including the tone and inflection of her voice, while testifying about her encounter with JMS, was entirely consistent with a person who had experienced a violation of her body and her trust. I disagree that the totality of the evidence casts doubt on her testimony. [ 63 ] In coming to this conclusion, I am aware that the complainant testified that she said “no” several times and verbalized her objections loudly. Based on the evidence, it is entirely possible that is what happened.

If she did speak her objections out loud, there is no room for JMS’s assertion of mistaken belief in consent and he would be guilty of sexual assault. However, I have not been satisfied beyond a doubt that she did speak her words out loud. I have found that it is possible that the complainant froze and, while she may have thought the words in her mind (or may have whispered the words out loud), it is possible that she did not speak loud enough to be heard. Clearly, she did not speak loud enough to be heard by Logan and Isabella. However, I do not find this conclusion erodes the complainant’s credibility.

I believe she believed that she spoke her words out loud. Simply put, I accept that it is possible that she is wrong. This is not a credibility issue; it is an issue of reliability. When considered in light of all of the evidence, I find that it is possible that the complainant froze in the moment. She is a young person and there is no expected or correct way for a victim of unwanted sexual touching to react. [ 64 ] I accept that the complainant may have agreed to go into a bedroom with JMS, that she may have kissed him while they were lying on the bed, and that she may not have resisted the removal of her pants.

However, none of these facts undermines the clarity of the complainant’s evidence that she did not want to have sex with JMS. Individually, each of these acts is ambiguous as to the message that was communicated. Collectively, they signal nothing more than a willingness to explore sexual contact. They are not inconsistent with the complainant’s statement that she did not want to have sex with JMS. Sexual touching and sexual intercourse are two entirely different acts, with very different risk profiles.

A person can agree to engage in the former without wanting to engage in the latter. [ 65 ] The inference of personal violation and the complainant’s statement that she did not want to have sex with JMS were corroborated by Isabella’s observations immediately after the incident. Isabella described the complainant as being “distant” when they were driving JMS and Logan home.

As soon as they were alone, she said the complainant was emotional to the point of hysteria. [ 66 ] I am drawn to the singular conclusion that, if the complainant did not make her objection known by words, none of the testimony I heard raised any doubt in my mind as to her subjective non-consent. After considering the totality of the evidence, I am satisfied beyond a reasonable doubt that the complainant was being truthful when she testified that she did not want to have sex with JMS

on February 17, 2020. Mens Rea – the Accused’s State of Mind : [ 67 ] As noted, there is no dispute that JMS touched the complainant in a sexual manner. However, JMS stated that he believed the complainant had communicated her consent through her actions. His counsel argued that there was no need in the circumstances for JMS to ask the complainant about her consent because her consent was actively communicated by her actions.

As a result, I will consider the issue of ostensible consent and the defence of mistaken belief in communicated consent. [ 68 ] In Ewanchuk , the Supreme Court discussed consent in the context of the defence of mistaken belief in consent. Paragraphs 45 to 49 of that decision are instructive. They read as follows: [45] As with the actus reus of the offence, consent is an integral component of the mens rea , only this time it is considered from the perspective of the accused.

Speaking of the mens rea of sexual assault in Park, supra , at para. 39, L'Heureux - Dubé J. (in her concurring reasons) stated that: ... the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying "no", but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying "yes". [46] In order to cloak the accused's actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question .

A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused's speculation as to what was going on in the complainant's mind provides no defence. [47] For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law: 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. [48] There is a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea .

For the purposes of the actus reus , “consent” means that the complainant in her mind wanted the sexual touching to take place. [49] In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate. [ 69 ] The defence of mistaken belief in consent is a denial of mens rea .

It arises whenever the accused asserts their belief that a complainant had ostensibly said “yes” through their words or actions. If JMS can establish that he held an honest, albeit mistaken, belief that the complainant had communicated her consent through her actions or her words, I must acquit. However, it should be noted that there are restrictions on the availability of this defence and these restrictions have now been codified by the Criminal Code .

Section 273.2 provides as follow: 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 the activity 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 complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. Is there some evidence to support the defence of belief in consent ? [ 70 ] To begin my analysis, I must determine if there is an air of reality to JMS’s assertion that he honestly believed that the complainant had communicated her consent through her conduct. If there is no evidence of contemporaneous words or conduct by the complainant that could have been perceived and interpreted by JMS as communication of active consent, the defence is not available.

See: s.273.2(c). For the purpose of making this determination, I begin by assuming that the evidence adduced by the defence is true.

See: R v Cinous, 2002 SCC 29 at para. 53 . [ 71 ] JMS testified that he assumed the complainant wanted to have sex with him and he made that assumption for a number of reasons: because they kissed while they were lying on the bed – a kiss that he said was initiated by the complainant; because he motioned to take the complainant’s pants off and she responded by removing them herself (or at least he perceived her as assisting in the removal of her pants); because she did not say ‘no’ or take any steps to stop him when he got on top of her; because she was moaning during the encounter; and because she put her hand on his side to guide him. [ 72 ] The only fact that JMS can rely upon to support his assertion that he held an honest belief in consent is the fact the complainant did not resist his act of removing her pants.

The assertion that they kissed, even if initiated by her, is ambiguous on the issue of consent. There is a world of difference between kissing and sexual intercourse. Similarly, JMS’s assertion that the complainant moaned during their encounter is also ambiguous, as is his statement of belief that she did so out of pleasure. Finally, JMS’s assertion that the complainant put her hand on his side is also ambiguous on the issue of consent, as is his statement of belief that she did so in an effort to guide him. Belief in consent based on ambiguous conduct is reckless.

Ambiguity in communication about sex triggers a duty to desist, not to rely on the mistaken belief that consent has been communicated. This is so because an “honest” belief in consent cannot be grounded in recklessness or wilful blindness. See: s.273(1)(ii). See also: Ewanchuk , at para 52 . The ambiguity of the complainant’s conduct (the conduct that JMS asserted was the basis of his belief in consent) is particularly apparent when one considers that prior to February 17, 2020, JMS and the complainant were merely acquaintances.

The extent of their prior romantic exploration was earlier in the evening, and it involved only a brief kiss that they attempted to conceal from their friends. [ 73 ] Finally, it was an error of law on his part for JMS to ground any belief that the complainant had consented to have sex with him because she did not say “no” or because she did not take steps to stop him when he got on top of her. Implied consent, which rests on the assumption that unless a woman protests or resists, she should be deemed to consent, has no place in Canadian law.

A belief that silence or passivity constitutes consent is a mistake of law and provides no defence. See: Ewanchuk at para. 103 . See also: R v Goldfinch , 2019 SCC 38 at para 44 , [2019] 3 SCR 3. [ 74 ] However, if I accept that the complainant acquiesced to the removal of her pants as JMS slowly removed them, that would at least be some evidence of conduct that could be consistent with communicated consent. But that does not end the enquiry. The “Reasonable Steps” Analysis: Was JMS reckless in the face of an obvious danger of non-consent? Was JMS wilfully blind to the need to make further enquiries?

Did JMS take reasonable steps in the circumstances to ascertain that the complainant was consenting? [ 75 ] As noted, there are a number of restrictions on the availability of the defence of mistaken belief in consent. The restrictions are set forth in s. 273.2 of the Criminal Code . In the present case, only three of the restrictions are applicable, recklessness, wilful blindness and reasonable steps. Both recklessness and wilful blindness act are bars to the defence of mistaken belief. Reasonable steps are a precondition.

There are other bars to the defence of mistaken belief that are not applicable in these proceedings, such as self- induced intoxication. The analysis of the applicable bars and preconditions set forth in s.273.2 is commonly referred to as the “reasonable steps” analysis.

[76] For example, paragraph 273.2(

a) bars an accused from advancing mistaken belief in consent where “the accused’s belief arosefrom the accused’s recklessness or wilful blindness”. And paragraph 273(

b) bars an accused from advancing the defence where “theaccused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant wasconsenting”. Although distinct legal concepts, in practice these three concepts are interrelated. [77] “Recklessness” as used in s.273(2)(

a) refers to the state of mind of an accused who persists in sexual contact despiteawareness of a risk that consent to that sexual contact may not be present. “Wilfull blindness” refers to the state of mind of an accusedwhose suspicions have been aroused to the point where they see the need for further inquiries but deliberately choose not to make thoseinquiries because they do not want to know the truth. A belief in consent based on either recklessness or wilful blindness cannot be saidto be an “honest” belief.

See: R v Esau, (SCC), [1997] 2 SCR 777 at paras 79-81. [78] Reasonable steps, like wilful blindness and recklessness, are not assessed in a vacuum but rather on the basis of the accused’sawareness of the circumstances. There are both objective and subjective dimensions to be considered in assessing the steps taken (or nottaken).

An accused who claims to have held an “honest” belief in communicated consent must be able to point to facts which, asperceived and interpreted by him/her, render the steps taken (or not taken) to be not merely reasonable but also neither reckless norwilfully blind. [79] Finally, sexual encounters often progress through stages, as was the case with JMS and the complainant. The “reasonablesteps” analysis applies to each stage of the encounter.

Because consent must be active and affirmative, an accused must point to factswhich, as perceived and interpreted by him/her, communicate continuing and contemporaneous consent at each stage of the sexualencounter. See: R v Stewart, 2021 BCPC 111, at para 23.

See also: R v Dippel, 2011 ABCA 129 at paras 22-23. “Testing the waters” byengaging in progressively more intimate sexual touching until someone says “no” is reckless and does not qualify as reasonable steps. [80] One of the leading approaches to the “reasonable steps” analysis was described by the Manitoba Court of Appeal in R vMalcolm, 2000 MBCA 77 at para 24, 148 Man R (2d) 143: [24]

Section 273.2(

b) requires the court to apply a quasi-objective test to the situation. First, the circumstances known to the accusedmust be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take furthersteps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is notentitled to the defence of honest belief in consent.

If the answer is no, or even maybe, then the accused would not be required to takefurther steps and the defence will apply. [81] Finally, I am mindful that Parliament’s purpose in including s. 273.2 in the Criminal Code was to protect and preserve everyperson’s bodily integrity and sexual autonomy. If this

section is to have meaning, trial judges must keep in mind that the “reasonablesteps” requirement reaffirms that an accused cannot equate silence, passivity, or ambiguity with the communication of consent. See: Barton at para 109. [82] As I have noted, much of the conduct that JMS said led him to believe that the complainant was consenting was ambiguouson the issue of communicated consent, including the kissing, the placement of her hand, and the fact she may have been moaning. Evenadding the fact that the complainant did not resist the removal of her own pants, the circumstances remain ambiguous.

Collectively, themost this conduct could have signaled was a willingness to engage in sexual touching. Even considering JMS’s youth and inexperience,he must have been alive to the risk that the complainant did not want to go further. The ambiguous circumstances cried out for him tohave stopped and to have taken steps to ascertain the complainant’s continuing and actively consent as they progressed from kissing, toundressing, and ultimately to intercourse.

Even if the complainant’s conduct as perceived by JMS signaled a willingness to engage inundressing, that conduct did not communicate her agreement to have sexual intercourse. [83] For example, JMS’s belief that the complainant’s moaning was indicative of pleasure was not well-founded. With a momentof thought, he would have realized that such sounds were ambiguous. JMS had no prior sexual experience with the complainant and thesounds she was making could also have been consistent with discomfort. Similarly, JMS’s belief that the complainant placed her hand onhis side to guide him was also reckless.

If she was doing as JMS suggested, she may have been “guiding” him to reduce discomfort; notbecause she was a willing participant. To the extent that JMS relied on either of these ambiguous actions, he did so recklessly.

Theywere far from accurate indicators of communicated consent. [84] The circumstances known to JMS at the time were the following: he and the complainant were engaging in a dramaticescalation of their relationship – from acquaintance to lover – and doing so without any verbal communication about what washappening; they were both young and inexperienced; and, other than the kissing, the complainant had not initiated any touching of a

sexual nature that evening. Even if the complainant acquiesced in the removal of her pants, that conduct did not necessarily communicate her consent to have intercourse. JMS did not know the complainant romantically and he was wilfully blind to the risk of her non-consent. The ambiguous circumstances known to JMS at the time must have aroused suspicions in his mind for the need to desist and enquire further.

Proceeding to have intercourse with the complainant in the face of that danger was reckless – particularly so if he grounded his belief in consent because he did not hear the complainant say “no” or because she did not actively resist him. Simply put, the circumstances known to him called out for him to have taken steps to ascertain or confirm the complainant’s continuing and active consent as the encounter progressed from kissing, to undressing and then to intercourse.

By his own admission, JMS did not take any steps - let alone reasonable steps. [ 85 ] Counsel for JMS cautioned this Court that, due to his youth, JMS may not have had the necessary experience to obtain verbal consent or the ability to articulate how he confirmed the complainant’s consent. Counsel cites this Court’s decision in R v N.W., 2021 SKPC 36 . I am mindful that JMS is young.

However, in N.W. , the accused was barely 14 years of age and, because of his youth, the Court found he did not have the language skills necessary to understand the questions being asked of him by counsel about the communication that had occurred between him and the complainant. He struggled to answer questions framed around legal concepts like communicated consent and non-verbal communication. However, in the present case, I found JMS to be an articulate and thoughtful young man.

He understood the questions he was asked both in examination-in-chief and in cross-examination and provided clear and articulate answers. The problem in the present case is not that JMS did not know how to obtain verbal consent from the complainant – the problem is he didn’t ask for it.

The problem in the present case is not that JMS did not have the language skills needed to describe the complainant’s conduct during their encounter – the problem is the conduct he described is ambiguous on the issue of communicated consent. [ 86 ] When I consider the totality of the evidence I heard in these proceedings, I am inescapably drawn to the conclusion that JMS initiated a sexual encounter with the complainant by starting to remove her pants while they were kissing and then, when she did not resist, he removed her pants.

Because the complainant did not say “no” or offer overt resistance, he assumed she was consenting. JMS then moved on top of her and, again because she did not say “no” or stop him, he placed his penis inside her vagina. JMS then proceeded to have intercourse with the complainant in the mistaken belief that the absence of “no” was the same as her saying “yes”. This conclusion as to what happened on February 17, 2020 is consistent with the complainant’s uncontradicted description of JMS’s conduct during the encounter – that he was not violent or threatening in the least – that he was just persistent.

It is also consistent with JMS’s evidence that the complainant was not really doing or saying anything during any of the encounter. [ 87 ] In the ambiguous circumstances known to him at the time, failing to take steps to confirm the complainant’s voluntary agreement was not reasonable – particularly so, by not taking such steps prior to engaging in intercourse. Conclusions regarding JMS’s state of mind: [ 88 ] I find that JMS did not hold an honest belief that the complainant consented to having sex with him.

Youth and wilful blindness caused him to fail to take reasonable steps to ascertain the complainant’s continuing and active consent to each new stage in the encounter and, in particular, to do so before having sexual intercourse with her. I am satisfied beyond a reasonable doubt that JMS was either aware that the complainant did not want to have sex with him, or he was reckless in proceeding in the face of ambiguous circumstances and the obvious risk of non-consent.

CONCLUSION [ 89 ] For the foregoing reasons, I am satisfied that the Crown has proven the actus reus of the offence of sexual assault – namely, that JMS touched the complainant on February 17, 2020, that the nature of that touching was sexual, and that the complainant did not subjectively consent to that touching.

I am also satisfied that the Crown has proven the mens rea of the offence – namely, that JMS intentionally touched the complainant and that he did so either being aware of her non-consent or being aware of the risk that the complainant did not consent to have sex with him, yet he deliberately chose to proceed in the face of that risk. Because he did not take reasonable steps in the circumstances known to him to ascertain that the complainant was consenting, JMS cannot be said to have held an “honest” belief that she was consenting. [ 90 ] As a consequence, I find JMS guilty of sexual assault contrary to

section 271 of the Criminal Code . Dated this 4th day of March, 2022, at the City of Prince Albert, in the Province of Saskatchewan.

__________________________ S.D. Schiefner, J