) ) HER MAJESTY THE QUEEN ) Ms. Barb Pesalj, Crown ) - v. - ), 2014 MBPC 14

2014 MBPC 14 THE PROVINCIAL COURT OF MANITOBA (THOMPSON CENTRE) BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. Barb Pesalj, Crown ) - and - ) ) Relene Tommy Lee Beardy ) Mr. Steve Hayward, Defence Accused ) ) ) Decision of March 25, 2014 THOMPSON, M.P., P.J. RESTRICTION ON PUBLICATION : Please note that, pursuant to s. 486.4(1), this decision is subject to an order restricting publication in any document or broadcast or transmission of any kind of information that could identify the complainant. [ 1 ] Mr. Relene Beardy is charged with a sexual assault on an adult female, “R”, at Shamattawa, Manitoba on May 8 th , 2013.

Both parties confirm that sexual intercourse took place. The accused’s position is that the complainant consented to the sexual activity. The complainant testified she did not. The Crown takes the position that in any event, the complainant was incapable of giving informed consent because she was so intoxicated. Consent and credibility are the issues in this case. [ 2 ] Date, jurisdiction and identification were not in issue at the trial in Thompson on February 19, 2014. BACKGROUND: [ 3 ] The complainant “R” was found by police walking on the road in Shamattawa the morning of May 8 th , 2013.

She was highly intoxicated and upset. She was detained and held in-custody by police, pursuant to the Intoxicated Person’s Detention Act. At 3:00 pm that same afternoon, when she was sober enough to be assessed by medical personnel she was taken to the Nursing Station by an RCMP Constable for a mental health assessment as she was very upset and emotional. At the Nursing Station she disclosed to the attending nurse that she had been sexually assaulted. A sexual assault kit was performed together with a physical examination.

Photographs were taken of significant bruising to her eye, her triceps, upper chest and inner left thigh. Following completion of that examination, she was returned by the Constable to the RCMP detachment to give a statement regarding this matter. The officer described her demeanor as that of a shy person and that she seemed reluctant to give a statement. He had to encourage her to speak. [ 4 ] In “R”’s trial testimony, she described drinking for two days prior to this incident, only stopping long enough to get a few hours of sleep. On May 8 th , the date in question she began drinking at noon.

It was past midnight when she met up with the accused. She testified she went to the accused’s home to drink with him because she had “no where else to go”. No explanation was offered as to why she didn’t simply go to her own home.

[ 5 ] She testified that the two of them listened to music in his bedroom and she believes that she passed out or fell asleep and awoke to find the accused on top of her having sex, saying she was too drunk to help herself. She testified she pretended she was asleep because she was scared. She did not raise the use of violence, force or threats by the accused against her. She said nothing was said by her or by the accused while this was happening, that she did not resist, say “No” or call out to the adults or children sleeping in the home for assistance. She just laid there and pretended she was sleeping.

When asked if she had consented she said “No, I did not. I was drunk, I just wanted to sleep.” She gave no evidence that she conveyed in any way a lack of consent to the accused at any time. [ 6 ] She described waking up in the morning and being very angry. She saw the accused’s mother on her way out the door who told her “Oh, your husband’s going to be mad”. She responded “Why would he be mad, I didn’t do anything”.

She went home and told her husband what happened; she then tried to harm herself (as evidenced by superficial cuts to her arm) and ended up in jail. [ 7 ] She could not explain how she got the bruising on her thighs or her upper chest shown in the photos taken at the nursing station. No medical evidence was called to shed light on the age of the bruises which were clearly visible in the photographs.

According to the Constable, these bruises are what initially drew the suspicion and concern of the Nurse that “R” had been sexually assaulted. [ 8 ] The accused was not located and arrested until three days later on May 11 th , 2013. He was arrested for sexual assault and gave a warned statement to police. The statement was admitted to be voluntary and was admitted as evidence with the agreement of counsel.

Accordingly, a DVD of the accused’s statement as well as a transcript of the statement were filed as exhibits. [ 9 ] A general overview of the accused’s statement reveals that he described having consensual sexual intercourse with the complainant. He stated that he was unaware she was married, that they were both intoxicated, they kissed, gave each other a hickey, agreed to have sex and each removed their own clothing. After intercourse, they fell asleep in bed together. When he awoke in the morning he was informed by his mother that “R” was a married woman.

He immediately became concerned that something bad might happen to her or to him from her husband, because of the visible hickey he left on her neck. [ 10 ] In his statement, the accused described meeting up with “R” at his grandmother’s house where a group of people had been drinking. They had known each other and had dated about 10 years previously, when they were teenagers but had not been acquainted recently as each had been away from the community for some time. He described “R” as “already like wasted” and that she wanted to buy more to drink.

He described them both as being too intoxicated to walk really straight. He stated that he accompanied her while they walked with a third person to Stanley Redhead’s house to buy more alcohol and that “R” paid for the purchase. [ 11 ] She wanted to go drink somewhere so they walked to his mother’s house where he was living. The home was occupied with relatives who were all asleep at that late hour. They went to his bedroom and drank. He described that he told her that he still loved her and “she said like same here”.

He said they began to kiss and that she gave him a hickey on his neck; at which time, as can be seen in his DVD statement, he pointed out to police a hickey on his neck.

He said that he then gave her a hickey too, that they laid down and kissed on the bed and that’s when they started having sex. [ 12 ] He advised that he was unaware that “R” was married until he got up that morning and was informed of this by his mother, saying “I didn’t know she was married and after that I just felt bad so I knew something was gonna happen…She was gonna get assaulted by her boyfriend I mean her husband cause like … cause I left that hickey on her neck then after that I don’t know probably threaten somehow…somewhere like probably charge me with something…So I had that feeling that’s gonna happen and sure enough it did”. [ 13 ] He described that she consented to intercourse because, after kissing and giving each other a hickey, he asked if she wanted to “do it” and she said “yeah”.

They each started taking off their own clothes, she took off her own pants. He described that they did not have music on as they did not want to wake up anyone in the house. He was asked if she put up any resistance at all and he said she did not. He awoke in the morning and was unable to wake her from sleep, so he got dressed and went out. He said that at no point did she say “No” and they both eventually “crashed out in the bed” until they awoke much later that morning.

He denied the suggestion that there was any kind of rough sex or that either person had hit the other. [ 14 ] Photographs taken by police of the accused showed a large hickey on his neck, in the area he had pointed out on the DVD statement to police when saying that “R” had given him a hickey. THE LAW:

[15] The accused testified in his own defence at the trial. Mr. Justice Corey of the Supreme Court of Canada in R. v. WD. (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) identified a three step process to ensure that the trier of fact remains focused on theprinciple of reasonable doubt when an accused testifies: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [16] This is a case that will turn on findings of credibility. I will now review the testimony of the two key witnesses, the complainant“R” and the accused Mr. Beardy.

ANALYSIS OF THE COMPLAINANT’S TESTIMONY: [17] “R” testified she did not consent to sexual intercourse; however that belief is based on a demonstrably unreliable memory whichwas significantly limited by her excessive consumption of alcohol. [18] She has no memory of the following events that the accused described, both to police in his statement upon arrest and in his trialtestimony; going with the accused to Stanley Redhead’s residence where she purchased more alcohol, kissing the accused, her givinghim a hickey or him giving her one. [19] The evidence of the accused’s hickey, which is clearly shown on the photograph taken by police on his arrest and which heattributed in his statement to “R”, is significant physical evidence that tends to corroborate his story that consensual sexual activitybetween them took place.

A careful review of the photographs taken of “R” appears to show a bruise on her neck, capable of beingdescribed as a hickey. [20] The accused was very concerned upon learning that “R” was a married woman that she might get assaulted by her husband or inthe alternative that he might be unjustly accused of sexually assaulting her.

This concern was born out by the fact he says that he gaveher a hickey on her neck that would be visible to her husband as well as the fact that his mother saw her in the morning and made acomment that her husband would be mad at her. [21] “R” testified that when she went home that morning she told her husband who became upset at “the whole situation”. Shetestified that he “encouraged” her to report it to the police”. Few questions were asked about her husband’s reaction or his level of“encouragement”.

Several facts cause concern to the court: [22] “R” was found highly intoxicated and distraught walking on the road, she says she was on her way to report the sexual assaultto the RCMP. She was so intoxicated and upset that she was lodged IPDA with a note that she needed to be taken to the Nursing Stationfor a Mental Health assessment once sober. [23] She had many visible bruises on her body that were documented in photos tendered to the court by police. Asked on directexamination if she knew how she got the bruises to her thighs, she answered that she did not.

No mention was made by her as to how shereceived these injuries either during direct examination or cross examination. Ultimately, and only after direct and cross examinationwere completed, the Court asked “R” if she knew how she got these injuries. She attributed her black eye and puffy lip to a fight she hadwith her sister on May 7th.

She did not know how she got bruised on her inner thigh and did not know how she got the bruising on herarms, although she agreed with defence counsel’s suggestion on cross-examination after the Court had questioned her about the source ofher bruises, that the accused was pinning her down by her arms. Significantly, this was the first time “R” testified that any level ofviolence was used by the accused against her.

[ 24 ] What was also clear was that she raised no complaint of sexual assault and did not call out to the accused’s family members for help during the incident. In the morning, when she awoke to find the accused gone she responded to the accused’s mother who said, “Your husband is going to be mad at you” by saying, “Why, I didn’t do anything wrong”. “R” did not inform the accused’s mother that she had been sexually assaulted.

TESTIMONY OF THE ACCUSED: [ 25 ] The accused testified in his defence at trial. [ 26 ] His testimony essentially mirrored the evidence he gave in his statement to police; that sexual intercourse with the complainant took place with “R”’s consent and participation. The one difference being that in his testimony he stated that he told her he “cared” for her, while in his statement to police he said that he told her he “loved” her. Other than that discrepancy, his story was not significantly shaken on cross examination.

ANAYLSIS OF CREDIBILITY AND CONSENT: [ 27 ] Intoxicated people are capable of having consensual sexual relations. In this case there is physical evidence; the hickey on the accused’s neck and a hickey like bruise on “R”’s neck, which tend to corroborate his assertion that there was consensual sexual activity between himself and “R”. “R” claims to have no memory of that.

This does not mean that the event did not unfold in a consensual way as the accused told police and testified at trial. [ 28 ] The accused’s version of events, corroborated in part by the presence of the hickey on his neck as well as the hickey like bruise on “R”’s neck, raises the real possibility that the accused’s version of events is correct and raises a doubt as to the reliability of the complainant’s memory and the credibility of her assertion that no consensual sexual activity took place. [ 29 ] Given that finding, I am unable to dismiss the accused’s version that all the sexual activity was consensual and that “R” was an active participant who removed her own clothing after he asked her if “she wanted to do it”.

If that evidence is credible, the complainant was capable of giving her consent to sexual intercourse despite being intoxicated. DECISION: [ 30 ] Accordingly, as the accused’s version of consensual sex is reasonably capable of belief, I find the accused not guilty of the charge of sexual assault. _________________ M. P. Thompson