Her Majesty the Queen - v. -, 2017 SKPC 041

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 041 Date: April 26, 2017 Information: 36863847 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Anthony J. Lariviere Ms. Elizabeth Addabor For the Crown Mr. Pab Chetty For the Accused NOTE: Pursuant to s. 486(3) of the Criminal Code , the court made an order directing that the identity of the complainant and any information that could disclose the identity of the complainant shall not be published in any document or broadcast in any way. DECISION S.D.

SCHIEFNER, J INTRODUCTION [ 1 ] The accused, Anthony Lariviere, is charged that he committed a sexual assault on the complainant contrary to s. 271 of the Criminal Code .

[ 2 ] Mr. Lariviere and the complainant were coworkers. The incident giving rise to the charge occurred in Prince Albert, Saskatchewan, on May 9, 2016, following a social interaction between the two outside of work. [ 3 ] A trial was conducted on March 29, 2017. Both Mr. Lariviere and the complainant testified. While there are some similarities in their evidence, for the most part the descriptions provided by Mr. Lariviere and the complainant as to what happened were significantly different. While Mr.

Lariviere admits to a sexual encounter with the complainant, he denies that it was non-consensual. [ 4 ] There is no dispute that there was physical contact between Mr. Lariviere and the complainant and that it was sexual in nature. The issues I must decide are as follows: 1. Is the evidence sufficient to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity which is alleged to have occurred? 2. If the complainant did not consent, did the accused have an honest, but mistaken belief that the complainant had consented? THE EVIDENCE [ 5 ] Mr.

Lariviere is 30 years of age, the complainant is 34. They both live in Prince Albert, Saskatchewan and are coworkers. [ 6 ] On May 8, 2016, the complainant and several other individuals, including her aunt (D.) and some friends (many of whom were coworkers), were playing baseball at a ball diamond in Prince Albert. The complainant and her friends were drinking, playing ball and generally having a good time on a weekend. Pretty standard fare for spring in Saskatchewan. [ 7 ] During the course of the day, the complainant sent several text messages to Mr.

Lariviere inviting him to come to the ball diamond to join them. The complainant knew Mr. Lariviere from work but had not previously socialized with him. However, on this occasion, she was hoping that he would join them and give her a ride later because she did not want to drive after she had been drinking. At the time of the complainant’s first messages, Mr. Lariviere was driving back from Edmonton. When he got back to Prince Albert, the complainant sent another message and Mr.

Lariviere agreed to join the group at the ball diamond, many of whom he already knew from work. [ 8 ] Baseball concluded around 9:00 p.m. Mr. Lariviere, the complainant, her aunt (D.) and two other individuals then went to Bailey’s, a nearby bar. While there, everyone had a drink except Mr. Lariviere who had agreed to be the designated driver. At Bailey’s, an incident arose over a pool cue and the group was asked to leave. [ 9 ] Until this point, the evidence of both Mr. Lariviere and the complainant was largely consistent.

However, the court heard significantly different accounts of the events that occurred during the balance of the evening and into the next morning. a. Evidence of the Complainant [ 10 ] The complainant testified that she, D. and Mr. Lariviere left Bailey’s and went to Movado’s, another bar nearby. While there, the complainant and her aunt had a few drinks and played slots. Mr. Lariviere did not drink. They stayed at Movado’s for about an hour and then Mr. Lariviere drove her and D. to the complainant’s house. D. was staying with the complainant at the time and her children were at their grandmother’s place.

When they got to the complainant’s house, her aunt got out of the car and went inside. [ 11 ] The complainant then asked Mr. Lariviere to drive her to her boyfriend’s house, which he did. The complainant had been texting her boyfriend, M., and he had been answering her messages until that point. However, he would not come to the door when Mr. Lariviere knocked on it. Mr. Lariviere then drove the complainant back to her house. She testified that when they left M.’s house, they returned directly to her place.

[ 12 ] The complainant testified that she sat in the car with Mr. Lariviere for a few minutes when they got to her place. She said they talked, they hugged when she said goodbye, and then she went in the house. The complainant testified that, when she went in the house, she went upstairs to her bedroom and changed. She then went outside and had a smoke. After her cigarette, she closed the door, went to bed and fell asleep. The complainant could not remember whether or not she locked the door to her house. The complainant could not remember if Mr. Lariviere was in her house when she went to bed.

She testified that she did not remember seeing him when she went outside for a smoke or inside her house before she went to bed. [ 13 ] The complainant’s bedroom was upstairs. Her aunt was sleeping in her son’s room which was across the hall. The complainant could not remember if the door to her son’s room was open or closed when she went to bed. [ 14 ] The complainant testified that she had approximately 8 to 10 drinks that night and was pretty drunk when she went to bed.

On a scale of 0 to 10 (with 0 being sober and 10 being passed out), the complainant estimated that she was approximately “8.5”. [ 15 ] In cross-examination, the complainant denied kissing Mr. Lariviere at any time during the evening. The complainant testified that she did not recall going anywhere after they left Movado’s, either to buy more alcohol or to get mix. When pressed by defense counsel, the complainant testified that she was drunk. [ 16 ] With respect to the sexual encounter, the complainant testified that, after she fell asleep, she woke up to find Mr. Lariviere in bed with her.

She was sleeping on her side and testified that Mr. Lariviere pulled her over onto her back. The complainant testified that he then took off her shorts and pulled down his pants. She said that, when he was on top of her, she tried to push him off but could not do so. The complainant testified that, while this was happening, she called him “M.” (her boyfriend’s name). The complainant testified that Mr. Lariviere spread her legs and touched her breasts. He also had intercourse with her. The complainant testified that, at some point, when she said the name “M.”, Mr. Lariviere replied by saying it was “Anthony”.

She testified that, when this happened, he then stopped having sex with her, pulled up his pants, and left the room. [ 17 ] The complainant testified that she did not give Mr. Lariviere consent to touch her sexually or to have intercourse with her. She said she told him to stop more than once or, at least, she called M.’s name more than once. The complainant testified that, after Mr. Lariviere left her room, she cried, she had a bath, and that she was very upset. After the incident, she called a help line because she tried to kill herself.

The person with whom she spoke on the help line encouraged her to report the incident to the police, which she did. [ 18 ] In cross-examination, the complainant could not recall inviting or allowing Mr. Lariviere into her house. She had no memory of him coming upstairs to ask for a blanket during the evening and denied that he had done so. Finally, the complainant denied initiating sex with Mr. Lariviere by kissing him or trying to take off his clothes. The complainant stated that Mr. Lariviere was a just a friend and she was not interested in being more than friends. b. Evidence of Mr. Lariviere [ 19 ] Mr.

Lariviere confirmed that he joined the complainant and her friends at the ball diamond on the evening of May 8, 2016. They played ball for about an hour. After the ball games were over, the complainant and her friends wanted to have a few more drinks and so they went to Bailey’s. Soon after arriving at Bailey’s, the group was asked to leave. That was shortly after 9:00 p.m. [ 20 ] Contrary to the complainant’s evidence, Mr. Lariviere said that they did not go directly to Movado’s after leaving Bailey’s. Rather, Mr. Lariviere testified that the complainant wanted him to drive them around.

The complainant and D. had been driving a brown sport utility vehicle and they wanted to take it home. As a result, the complainant and her aunt left in their vehicle and Mr. Lariviere met them at the complainant’s house. While Mr. Lariviere agreed to drive the complainant and D., he did not allow smoking in his vehicle so he drove their vehicle the rest of the night, not his. [ 21 ] Thereafter, Mr. Lariviere, the complainant and D. went to Movado’s. At Movado’s, Mr. Lariviere confirmed that the complainant and her aunt continued drinking but he did not. Mr.

Lariviere observed that the complainant was getting intoxicated. Mr. Lariviere testified that while at Movado’s he and complainant were holding each other and they kissed twice. According to Mr. Lariviere, they initially started kissing when they were out on the deck for a smoke and that later, they were holding each other and kissing in front of D. just prior to closing.

[ 22 ] After leaving Movado’s, Mr. Lariviere testified that D. wanted to go home because she had to work the next morning. He drove them back to the complainant’s house and D. got out of the car and went inside. The complainant stayed in the car with him. Mr. Lariviere testified that the complainant wanted to drive to M.’s house. Mr. Lariviere testified that, at the time, he did not know that M. was the complainant’s boyfriend. [ 23 ] Mr.

Lariviere testified that they then drove to someone’s house, that the complainant told him it was M.’s house, and that she wanted to see M. but that no one answered the door when Mr. Lariviere knocked on it. [ 24 ] Contrary to the complainant’s testimony, Mr. Lariviere testified that they did not go directly back to her house after leaving M.’s house. Mr. Lariviere said the complainant was upset because M. did not answer the door and because he was no longer answering her text messages. Mr. Lariviere testified that they just drove around for a while.

He said they drove to Little Red and then drove back to the complainant’s house. Mr. Lariviere testified that when they got back to her place, she was upset and crying. He testified that they sat in the car for about 10 minutes hugging and that she was crying most of the time. Mr. Lariviere testified that the complainant then suggested that they go buy some more alcohol. Mr. Lariviere testified that it was almost 3:00 a.m. and that the off-sale service at Georgie’s would soon be closing. [ 25 ] Mr.

Lariviere testified that they drove to Georgie’s and that the complainant bought a bought a bottle of vodka with her bank card. They then drove to 7-11 and bought some mix. Mr. Lariviere testified that he then drove them back to the complainant’s house and they both went inside. [ 26 ] When inside, Mr. Lariviere testified that the complainant mixed him a drink. She then had a smoke and got ready for bed. Mr. Lariviere testified that it was his intention to sleep on the couch. At some point after the complainant went to bed, Mr. Lariviere went upstairs and asked the complainant for some blankets.

She did not reply. Mr. Lariviere thought she may have been texting someone at time. Mr. Lariviere testified that he then went downstairs and went to sleep on the couch. [ 27 ] Mr. Lariviere testified that he woke up at about 6:12 am and decided to leave. However, he wanted to let the complainant know that he was leaving so she could lock the door after he left. Mr. Lariviere went upstairs and entered the complainant’s bedroom. He testified that she was sleeping on her stomach. He tapped her on her shoulder several times to wake her up.

When she woke up, he told her he was leaving and asked her to lock the door after he left. [ 28 ] Mr. Lariviere testified that she then started kissing him, pulling at his clothes and removing her own. He removed his clothing and she removed her shorts. They then started having sex. Mr. Lariviere testified that, while they were having sex, she said “Owe babe M. stop”. Mr. Lariviere said that when she said those words, he immediately stopped, told her that it was “Anthony”, told her he had to go, got dressed and left. [ 29 ] Mr.

Lariviere testified that he locked the front door of the complainant’s house and left through the back door. [ 30 ] In cross-examination, Mr. Lariviere admitted that prior to May 8, 2016 the complainant had not shown an interest in a physical relationship with him and that her wanting to do so on this occasion was out of the norm for her. However, she said she liked him and he thought that she did. [ 31 ] In cross-examination, Mr. Lariviere admitted that when he was originally interviewed by the police, he gave a statement indicating that he had not had sex with the complainant.

He also admitted that he went back to the police station two days later and gave another statement to police indicating that he did have sex with the complainant but that it was consensual. [ 32 ] In cross-examination, Mr. Lariviere admitted that in reflecting on his sexual encounter with the complainant he now thinks that she may have thought he was M., her boyfriend, when she initiated sex with him and while she was having sex with him. CONSENT IN THE CONTEXT OF SEXUAL ASSAULT [ 33 ] The Supreme Court of Canada recently reviewed the concept of consent in the context of sexual assault in R v J.A., 2011 SCC

28, [2011] 2 SCR 440. In this particular case, the court was concerned with whether a complainant could consent to sexual activity inadvance of that activity taking place. The majority led by McLachlin C.J. held that she could not, emphasizing the significance ofobtaining timely consent to sexual activity. Paragraphs 1, 23, 24 & 25 of this decision are instructive on the meaning and significance ofconsent: [1] It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact.

From this, it follows that sexualacts performed without consent and without an honest belief in consent constitute the crime of sexual assault. ... [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. [34] In R v Ewanchuk, (SCC), [1999] 1 SCR 330, 169 DLR (4th) 193 [Ewanchuk], the Supreme Court discussedconsent in the context of the defence of honest but mistaken belief in consent. Paragraphs 45 to 49 of that decision are instructive.

Theyread 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 theperspective of the accused.

Speaking of the mens rea of sexual assault in Park, supra, at para. 39, L'Heureux-Dubé J. (in her concurringreasons) 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 complainantcommunicated consent to engage in the sexual activity in question.

A belief by the accused that the complainant, in her own mind wantedhim 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'smind provides no defence. [47] For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. Whatmatters is whether the accused believed that the complainant effectively said "yes" through her words and/or actions. The statutorydefinition 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 voluntaryagreement 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 ofthe 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 thecomplainant 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 thecomplainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. Thisdistinction should always be borne in mind and the two parts of the analysis kept separate.

[35] As can be seen, consent is relevant when considering both the actus reus and mens rea of the offence of sexual assault. Thesubjective intent of the complainant to consent is the dominant issue with respect to the former. The objective reasonableness of theaccused’s belief that consent had been communicated is the dominant issue with respect to the latter. CREDIBILITY, CONSENT AND PROOF BEYOND A REASONABLE DOUBT [36] As noted, the complainant and Mr.

Lariviere described very different versions of events, both during the evening of May 8and on the morning of May 9. [37] On the central issue in dispute – namely consent - the evidence of the complainant was clear. She did not consent to havingsex with Mr. Lariviere and it was not her intention to do so. On the other hand, the thesis of Mr. Lariviere’s testimony was that his sexualencounter with the complainant was consensual.

Specifically, that her actions communicated a desire to have sex with him, by kissinghim and by engaging in efforts to remove his clothes. [38] When evaluating and weighing evidence, the trier of fact may evaluate both the testimony and the witness. [39] It is common practice to examine each witness’s evidence in light of undisputed or known facts, particularly where those factsare external to the subjective experience of that witness. Testimony that is harmonious with known facts will generally be preferred overtestimony that is not.

In these proceedings, there were almost no external facts from which to measure either the credibility or reliabilityof either witness’s testimony. There was certain commonality to their evidence, including how the evening started and how the sexualencounter ended. With respect to the latter, both the complainant and Mr. Lariviere testified that sex ended abruptly when she called outher boyfriend’s name. Mr. Lariviere stopped having sex with her and said that it was “Anthony”. He then left the room.

This commonevidence provides a benchmark from which other evidence may be examined. [40] If a trier of fact is not able to resolve conflicting evidence with reference to known and undisputed facts, the trier of fact willoften use his or her best judgment (and common sense) as the crucible for examining evidence for such things as internal consistency,plausibility and reasonableness. A trier of fact may reject evidence that is wholly implausible or irrational. In these proceedings, thedescriptions of events from both witnesses were logical, rational and plausible. I also note that Mr.

Lariviere testified to many facts thatwere capable of verification, including what happened to the complainant’s vehicle, whose vehicle was driven to Movado’s, whether ornot D. observed the complainant and Mr. Lariviere kissing or hugging at Movado’s, whether or not there was a purchase using thecomplainant’s bank card at Georgie’s at 3:00 a.m. on May 9, 2016, whether or not D. observed Mr. Lariviere sleeping on the couch or inthe house at any time. The fact that this testimony was left unchallenged does not prove Mr. Lariviere’s version of events.

However, thefulsome and detailed nature of his testimony, coupled with its internal consistency, provides weight to Mr. Lariviere’s evidence. [41] The trier of fact may also (with considerable caution) assess the demeanor of the witnesses, including each witness’sappearance of sincerity and truthfulness and whether the witness is candid, frank and responsive to probing questions. In my opinion,both witnesses presented as credible, honest and forthright.

Each witness was cross-examined to probe the reliability, consistency andreasonableness of their testimony. [42] Finally, the Supreme Court of Canada has provided helpful guidance and a framework for triers of fact in criminalproceedings that explains what reasonable doubt means in the context of conflicting evidence or testimonial accounts where the“credibility” of that evidence is at issue. This is commonly known as the “W(

D) framework” and was articulated by the Court in R vW(D), (SCC), [1991] 1 SCR 742: First, if you believe the accused, you must acquit; Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[43] In applying the W(

D) framework, I am guided by four principles – principles which I have drawn from the scholarly work ofJustice David M. Paciocco in his paper “Doubt about Doubt: Coping with R v W(

D) and Credibility Assessment”: 1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred. The burden of proving allof the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to proveanything and the burden of proof never shifts to the accused: R v JHS, 2008 SCC 30 , [2008] 2 SCR 152 at para 9 [JHS]. 2.

In undertaking steps 1 and 2 of the WD framework, the Court must consider all of the evidence, not just the accused’s version ofevents in isolation: R v Hoohing (2007), 2007 ONCA 577 , 74 WCB (2d) 676 (Ont CA) at para 15. In other words, if the trier offact believes any evidence (either from the accused or elsewhere) that is inconsistent with the guilt of the accused for a particularoffence, the accused cannot be convicted of that offence. 3.

Even if the trier of fact does not entirely believe evidence that is inconsistent with guilt, if the trier of fact is left unsure whetherthat evidence is true then there is reasonable doubt. In this circumstance, the accused is also entitled to an acquittal: JHS at para 11. 4. Even if the trier of fact entirely disbelieves the testimony of an accused (or any other evidence inconsistent with guilt), the mererejection of that evidence does not prove guilt.

To the contrary, the accused may not be convicted unless the evidence that is acceptedproves the accused’s guilt beyond a reasonable doubt. [44] I now turn to the evidence. As noted earlier, there is no dispute that there was physical contact between Mr. Lariviere and thecomplainant. There is also no dispute that the nature of this contact was sexual. The issues to be decided involve whether or not thecomplainant consented to the activity that occurred and mens rea. [45] The complainant testified that she did not want to have sex with Mr. Lariviere. In this regard, her testimony was clear andcompelling.

Her feelings of personal violation and breach of trust were palpable. There was nothing in her demeanor on the stand or thenature of her evidence that causes me to question her credibility. While there is a basis to question the reliability of some of her evidencebecause of her state of intoxication, for the most part, her evidence on the subject of consent was very clear. On the basis of thisevidence, I am satisfied that the complainant did not intend and did not in fact consent to having sex with Mr.

Lariviere. [46] I am satisfied, beyond a reasonable doubt, that the Crown has proven the actus reas of the offense – namely, touching, asexual nature to the contact, and an absence of consent on the part of the complainant. However, the issue of mens rea is morecomplicated. [47] While I accept the complainant’s evidence with respect to her subjective intentions as genuine, I am not persuaded that thetotality of her evidence was so credible, so clear and so compelling, that I must reject Mr. Lariviere’s evidence. In particular, I am notsatisfied that I may reject Mr.

Lariviere’s testimony that the complainant initiated sex with him believing that he was her boyfriend andthat he misinterpreted her conduct as an expression of her desire and willingness to have sex with him. I am also not satisfied that thecomplainant’s evidence that she called out her boyfriend’s name more than once was so clear, cogent and compelling that I must rejectMr. Lariviere’s evidence that she only called out his name once. While the complainant’s testimony causes me to question Mr.Lariviere’s evidence, I am not satisfied that I may reject it.

When I examine the totality of the evidence, I do not know whom to believe. [48] Mr. Lariviere’s description of events was fulsome, rationale, plausible and internally consistent. In addition, Mr. Larivieretestified that he stopped having sex with the complainant when he realized she wanted her boyfriend and not him. Other than initiallyproviding an inconsistent statement to police, there was also nothing in his demeanor on the stand or the nature of his evidence thatundermined his credibility. Mr.

Lariviere’s prior inconsistent statement was not a significant blow to his credibility in light of his quickand voluntary correction of that statement to police. [49] After considering the testimony of both the complainant and Mr. Lariviere, I simply do not know whom to believe. Whileoften such a finding would end the matter with an acquittal. In this case, it does not. Mr. Lariviere’s evidence merely raises an air ofreality to the defence that he had an honest but mistaken belief in consent. HONEST BUT MISTAKEN BELIEF IN CONSENT

[ 50 ] The defence of mistake is simply a denial of mens rea . A reliance on this defence does not impose any burden of proof upon the accused. The burden of proving all elements of the offence remains on the Crown throughout and the Crown must do so beyond a reasonable doubt. [ 51 ] However, as noted by the Supreme Court of Canada at paragraph 50 in Ewanchuk , not all beliefs upon which an accused might rely will exculpate him.

Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of the Criminal Code . [ 52 ] Of relevance to these proceedings, s. 273.2 of the Criminal Code limits the availability of the defence of honest but mistaken belief in consent. This

section provides as follows: 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 the accused's (

i) self - induced intoxication, or (ii) recklessness or wilful blindness; or (

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. [ 53 ] In these proceedings, the Crown takes the position that Mr. Lariviere’s evidence should be discredited. However, relying upon Mr. Leriviere’s description of the sexual encounter with the complainant, the Crown argues that he was reckless or willfully blind in assuming that she had communicated her consent.

The Crown argues that she would obviously have been in a confused state when she first woke up and that she would still have been intoxicated – sufficiently so that she thought she was having sex with another man. In these circumstances, the Crown takes the position that Mr. Lariviere did not take reasonable steps to ascertain that the complainant was consenting to have sex with him . [ 54 ] While the complainant had not previously expressed a romantic interest in him, Mr. Lariviere testified as to his belief that she might in fact like him.

The social interaction between the two began with an invitation from the complainant. Mr. Lariviere testified that the complainant kissed him earlier in the evening and that she did so in front of her aunt. According to Mr. Lariviere, they spent a considerable amount of time together that night and the evening was emotionally charged. As I have indicated, I am not satisfied that Mr. Lariviere’s testimony can be or ought to be rejected. [ 55 ] While there is evidence that the complainant was intoxicated and that Mr. Lariviere was aware she was intoxicated, Mr.

Lariviere testified that the sexual encounter occurred after both he and the complainant had slept for a number of hours. Furthermore, even by her own admission, the complainant was never intoxicated to the point of passing out. Under these circumstances, she would have had the capacity to consent and would have been capable of communicating a valid consent in the manner described by Mr. Lariviere. [ 56 ] Finally, there was consistency in the evidence of both Mr.

Lariviere and the complainant on one crucial point - that the sexual encounter ended abruptly when she called out her boyfriend’s name and he responded by saying to her that it was “Anthony”. [ 57 ] I wish to note that a woman inviting a man for a social interaction, drinking with him, laughing or crying with him, kissing him, hugging him, and inviting him into her house is not an invitation to engage in sexual activity. None of these actions individually or collectively come anywhere close to communicating consent. These actions are however, relevant to weighing the reasonableness of Mr.

Lariviere’s assumption that the complainant liked him and was communicating a desire to have sex with him in the circumstances that he alleged; namely that she had kissed him and started taking off their clothes when he woke her up on May 9, 2016. While I don’t know that this is what happened on that morning, based on the evidence I have heard and not discredited, I am satisfied that the interaction could have occurred as Mr. Laviviere suggested. [ 58 ] Furthermore, I am satisfied that, under these circumstances, it would not have been unreasonable or reckless for Mr.

Lariviere to assume that the complainant was communicating consent even though she was sleepy and probably still feeling the effects of alcohol at the time. Prior to the complainant saying the name “M.”, Mr. Lariviere would have had no obvious way of knowing of her mistake. As I have indicated, while the complainant testified that she call out her boyfriend’s name more than once, I was not satisfied that this evidence was so clear, cogent and compelling that I must reject Mr. Lariviere’s evidence that she only called out his name once.

[ 59 ] Simply put, based on the evidence before me, I am not satisfied beyond a reasonable doubt that it was reckless for Mr. Lariviere to assume that the complainant was consenting to a sexual encounter with him or that he was willfully blind in the circumstances. I am also not satisfied beyond a reasonable doubt that Mr. Lariviere failed to take reasonable steps to ascertain that she was consenting to have sex with him . CONCLUSION [ 60 ] In all of the circumstances, while am satisfied that the complainant did not consent to a sexual encounter with Mr.

Lariviere, I am also satisfied that he could have reasonably and plausibly held the honest but mistaken belief that she had done so. Certainly, Mr. Lariviere must receive the benefit of any doubt as I weigh the evidence before me. Finally, I am not satisfied – certainly, I am not satisfied beyond a reasonable doubt – that Mr. Lariviere’s belief in consent was precluded by application of s. 273.2 of the Criminal Code . [ 61 ] For the foregoing reasons, I am not satisfied that the Crown has established that Mr. Lariviere had the requisite mens rea at the time of the offence. As a consequence, I find him not guilty.

Dated this 26th day of April, A.D. 2017, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S. D. SCHIEFNER, J