His Majesty the King - v. -, 2023 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 44 Date: July 25, 2023 Information: 991141692 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Jeffrey Muma Appearing: Ms. Ashley Falk For the Crown Mr. Michael Scott For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Jeffrey Muma, is charged that on September 26, 2020, he committed a sexual assault on J.C. contrary to

section 271 of the Criminal Code . The Crown proceeded summarily. The accused entered a not guilty plea and the trial was heard by me on May 23 to 25, 2023. I reserved my decision. This is that decision. For the reasons stated below, I find the accused not guilty of the charge.

THE APPLICATION FOR DIRECTIONS [ 2 ] Counsel advised the Court that on the night in question, approximately 10 or 12 young people gathered at a home in Regina for a birthday party. It was anticipated that there would be considerable drinking, so plans were made for most of the individuals to spend the night at the host’s home. The accused and complainant were both invited guests at this party. The Court was advised that other witnesses would testify that during the course of the evening, the accused and complainant were partners in a number of games and sat very close together and may have cuddled.

At the end of the evening, the decision was made that the complainant would sleep with the accused on his air mattress. It is alleged that the sexual assault took place during that night. [ 3 ] Counsel for the accused sought a declaration or determination by the Court that evidence related to the events of that evening formed the subject matter of the charge and as a result, cross-examination on these events was admissible as part of the accused’s right to make full answer and defence. Alternatively, he asked that I give Stage 1 approval, pursuant to the screening process in

section 278, and direct that the application be set for the Stage 2 inquiry. In a brief written decision, I determined that the events of that evening were closely and temporally connected to the charge and thus formed part of the subject matter of the charge. As a result, the cross- examination would be allowed. THE EVIDENCE [ 4 ] The first witness was Ms. Alexina Galera. (A number of the other witnesses refer to her as “Zena”.) She testified that she is 23 years of age, and has lived in Regina all of her life.

On the evening of September 25, 2020, she and her partner hosted a birthday party for her and another friend. Their home is a fairly large four level split house in south Regina. The guests began arriving at about 8:00 p.m. They were playing beer pong and other drinking games. She was apart from the group for a short while, while she was doing some cleaning up downstairs. When she returned to the group, everyone was in the kitchen. There was karaoke singing and speeches. Some of the guests left, while others stayed. There was discussion about the sleeping arrangements.

The accused and the complainant, J.C., agreed they would sleep in the basement on the bottom level. At around 4:00 a.m., she checked on all of the guests, as they were getting ready for bed, and then she went to bed. [ 5 ] The witness advised that she has worked with the accused for a few years at GoodLife Fitness. Most of the guests that evening also worked at GoodLife Fitness and knew each other prior to that evening. J.C. was a member at this gym. She said she met the complainant, J.C. about three or four years ago. [ 6 ] The witness advised it was planned in advance that all could stay over at her home.

She spoke about the invited guests, and who left and who stayed. She indicated she did not know how much J.C. had to drink although she believed that J.C. was drunk. On a scale of 1 to 10, she estimated J.C.’s level of intoxication at 5. [ 7 ] She stated that the accused has a high tolerance for alcohol. She estimated his level of intoxication at 2. She stated he was drinking a paralyzer. [ 8 ] The witness said that she was drinking but was not intoxicated and was aware of everything, and remembered events fairly clearly.

She specifically recalled doing the final walk around before going to bed when everyone was still awake. When she last saw the accused and the complainant, J.C. was on the mattress, and the accused was still standing up. [ 9 ] The witness said she next saw J.C. in the morning. J.C. was upset and insisted on going home. J.C. advised that she did not sleep well. The witness said J.C. did not appear right. The accused was still in the basement at this time. When he came upstairs, he appeared just fine.

He did not mention that anything had happened. [ 10 ] Later, J.C. sent the witness a text advising she had been sexually assaulted. She came back to the witness’s home. By this time, the accused had left. J.C. was upset and told her and the others then present what had happened. They were all kind of in shock. [ 11 ] Under cross-examination, the witness said she was the lady in charge. Glen is her boyfriend. She indicated that nobody was very drunk, and all were well behaved. Glen was playing a drinking game and “was iced. He had to chug”. This briefly made him sick. However, he was not really drunk. No one was.

She identified Exhibit P-2, a picture of the accused and the complainant taken at the party. They were sitting closely together with their heads together. The witness stated that at the party, the two of them held hands and

cuddled a lot. J.C. rested her head on the accused’s shoulder. He had his hand on her lap. She stated this was closer to the end of the night. Earlier in the night, they were flirting. [ 12 ] The witness stated that later in the evening, the complainant and accused agreed to sleep in the same bed. There was a couch in their room. At the end of the night, at the walk through, J.C. was sitting on the mattress, not on the couch. She also stated there were other rooms, at least one other room, where J.C. could have stayed. In addition, she agreed that J.C. lived approximately one block from the witness’s home.

She did not recall if, earlier in the evening, J.C. had planned on staying the night. [ 13 ] The witness specifically recalled the final walk through. When she and Glen did that final walk through, and got to the lowest level, the light was on. She and Glen spoke to the two of them and everything seemed just fine. J.C. was in her pajamas and on the mattress. [ 14 ] Defence counsel asked if J.C. “was smashed”. The witness agreed she was not smashed.

The witness stated she would not have let J.C. get into the accused’s bed if J.C. was smashed. [ 15 ] The witness also indicated that when J.C. had her head on the accused’s shoulder, it did not appear that she was tired. This went on, on and off, for a couple of hours. [ 16 ] The witness also advised that Mark and Audrey were in a room, with a door to the lowest level, and were just a few feet away from where the accused and J.C. slept. [ 17 ] Lastly, she advised that a couple of days later, Glen was asked to go to the home of J.C.’s parents. The police were there and Glen asked the witness to come over.

A number of others were also there and they gave statements to the police. [ 18 ] The next witness was Daphne Miquiabas. (I believe a number of the witnesses refer to Daphne as “Audrey”.) She testified she is 23 years of age and has lived in Regina since 2016. She is presently in school. She was one of the guests at the birthday party for Zena and Abby. As she recalled, J.C. was one of the last to arrive. At around 2:00 a.m., everyone was talking. The accused and J.C. were more touchy. They slept in the same bed.

When she went to bed, at around 4:00 a.m. she heard laughing from J.C.’s and the accused’s room. [ 19 ] At around 9:30 a.m., J.C. left. At around 11:30 a.m., the accused left. Later, J.C. came back and told them what had happened. [ 20 ] The witness said she knew J.C. was a member at GoodLife. She had met J.C. about one or two months earlier. She had met the accused at high school. A number of them worked at GoodLife. [ 21 ] The plan was for most to spend the night. The sleeping arrangements were just made that night. She indicated she did not notice how much either J.C. or the accused drank.

She went to bed at around 4:00 a.m. [ 22 ] In cross-examination, she admitted her memory of that evening was not good. She could remember some parts, but her memory had been better when she gave a statement to the police. She did remember that J.C. and the accused were touchy, and getting closer. The accused had his hand on J.C.’s lap and she had her head on his shoulder. Exhibit P-2 shows how they were sitting. She did recall J.C. trying to decide where she would sleep. [ 23 ] She recalled Glen and Zena doing their walk around just before bed. She remembered them saying goodnight to J.C. and the accused.

At that time, the lights were on. [ 24 ] The witness was sleeping close to the door to the room that the accused and J.C. were in. The witness said she heard “genuine laughter”. She also recalled that sometime during the night J.C. went to the washroom and returned to the bedroom with the

accused. [ 25 ] She also recalled seeing the accused when he came up the stairs in the morning. She indicated that he seemed fine, although perhaps a bit hungover. [ 26 ] The next witness was Glen Aceron. He testified that he lives in Regina and has lived here for 11 years. He is presently enrolled in school. [ 27 ] At the party, there was drinking. J.C. and the accused were both there. Near the end of the night, everyone was hanging out in the kitchen. They were singing karaoke. The accused and J.C. were sitting together at the table. He stated it was “very clear they were very close”.

She had her head on his shoulder. Later, everyone had their own area to sleep. J.C. and the accused took the “bottom basement”. He stated they went around to check on everyone. Everything was fine. [ 28 ] In the morning, he saw J.C. She was sitting down and was quite quiet. He did not think too much of it. He could not recollect when J.C. left the home. [ 29 ] He stated he knew J.C. as a member of the gym and that she had been invited to the party. He has known the accused since grade 9. [ 30 ] He could not say how much J.C. had to drink. Although she was drunk, she was 100% in the moment.

He described the accused the same way. He further stated that everyone sobered up near the end of the night. [ 31 ] In the morning, the accused was one of the last to wake up. He left shortly after waking up. Later, J.C. told the witness what happened. [ 32 ] The witness and his friends decided they wanted to speak to the accused about what had happened. On Sunday, they arranged to meet at the Broken Rack for a drink. At that meeting they advised the accused what J.C. had said. The accused was shocked and surprised. They heard his side of the story.

The accused was completely surprised, and felt that everything had been fine. He said that there had been no tension when they were making out. He did not think about asking for consent, as he did not think anything was wrong. He did not feel any need for consent as they were already making out, and thought they were both on the same page. [ 33 ] Under cross-examination, the witness was shown Exhibit P-2. He said that picture was pretty typical of the evening. They were sitting at the kitchen table, holding hands and he had his hand on her knee. They played games and sang karaoke together.

He remembered that J.C. told him she found the accused attractive. He told the accused this. [ 34 ] He stated that earlier in the evening, the accused and J.C. agreed they would sleep in the same area. Later, when the sleeping arrangements were made, it was clear that the two of them would be together. At the end of the evening, he and Zena did a walk around and said goodnight to all of the guests. The accused and J.C. had the lights on. J.C. was on the air mattress. He spoke to the accused. Both the accused and J.C. were “100% in the moment”. He described the other rooms and sofas that were available.

There were other places that J.C. could have slept. [ 35 ] He stated the accused was fine when he came upstairs in the morning. The accused was very different when they spoke to him at the Broken Rack. According to the witness, the accused was “blindsided.” The accused felt both were on the same page and they were making out. When she was not into it anymore, they stopped. [ 36 ] The next witness was Mark Piedad. He testified he is 20 years of age and has lived in Regina for 10 years. He was at the party at Zena’s. He too used to work at GoodLife.

He knew the accused since high school but got to know him better at GoodLife. [ 37 ] The witness stated that he was fairly drunk at the party. He did not know how much either J.C. or the accused drank. The

witness said he went to bed at around 2:00 a.m. [ 38 ] The next day, he and others met the accused at the Broken Rack. They told the accused what J.C. had said and the accused was pretty shocked. The accused stated that nothing had happened. They were just cuddling and sleeping together. The accused said he did not ask for consent. [ 39 ] Under cross-examination, the witness said J.C. did not seem drunk, nor did the accused. They were pretty close together most of the evening. She had her head on his shoulder and he had his hand on her lap.

They teamed up for games. [ 40 ] The witness stated he heard J.C. say she would sleep with the accused. This was somewhere in the middle of the evening. [ 41 ] At the Broken Rack, the accused was shocked. He felt they were making out and this was all by consent. Then they went to sleep. [ 42 ] The next witness was Abby Bailey. She testified via Webex. She advised she is 21 years of age, and now lives in British Columbia. She is attending school. [ 43 ] She advised the birthday party was for Zena and herself. At the party, the accused and J.C. were pretty close, and were cuddling.

The witness left the party at about 2:30 to 3:00 a.m. [ 44 ] The witness advised that she went to high school with J.C. but they were just acquaintances. [ 45 ] The witness said she worked with the accused at GoodLife. J.C. became a member of the GoodLife gym and regularly worked out there. The witness regarded J.C. as a friend. [ 46 ] The witness said she had a maximum of three drinks during the night. Perhaps she was a little bit tipsy earlier in the evening; however by the end of the night, she was sober. [ 47 ] She advised that her boyfriend was away, and consequently, was not at the party.

The plan was for J.C. and Abby to share a bed. However, during the night, J.C. and the accused were really close. J.C. really wanted the accused to sing karaoke, and they did. Later, J.C. changed her plan with Ms. Bailey. J.C. had a conversation with Ms. Bailey and advised that she wanted to sleep with the accused. The witness stated she spoke to J.C., and asked her if she was sure. The witness stated she wanted to make sure that J.C. was not drunk, and that J.C. was sure that was what she wanted to do. The witness determined that J.C. was not drunk and was sure.

As a result, the witness changed her plans, and decided to go home. She called a friend and asked to be picked up. When her ride arrived, she asked J.C. if she wanted a ride home. She advised J.C. they would go right by her home, and this was no problem. Again, J.C. declined and indicated she would sleep with the accused. The witness left and went home. [ 48 ] The next morning, she received a text from Zena asking the witness to come back to Zena’s home. She did that. By that time, the accused was gone. J.C. was there.

J.C. was “a little distraught”. [ 49 ] The complainant J.C. testified she was born in Regina and lived here until age 20, at which time she moved to Ontario to pursue a medical degree. She said she was at the birthday party at Zena’s home. It was a typical gathering. She had about three drinks. She planned to sleep over. She said she would sleep in the basement with the accused. Their bed was in the basement at the very bottom level. [ 50 ] She said that about 3:30 a.m. she went to bed. She could not ascertain just when, but sometime later the accused came to the room.

He closed the door, stripped to his underwear and jumped into bed. He “started trying to make out with me.” She kept pretending to fall asleep. She said she was tired and drunk, but “he continued to make out”. She put her head on his chest. Later he pulled her toward him. He was gyrating against her. He put his hand under her pajamas, but did not touch her breasts or vagina.

[ 51 ] She testified that she and the accused had met at the gym and she had started to hang out with a mutual group of friends. Once she had met the accused for coffee and studies. [ 52 ] At the party, she had one Corona, two White Clam 5% and later a Slider. She was slightly inebriated but completely aware of the events around her. She said the accused was somewhat intoxicated but not really intoxicated. He made the comment that “he could not get it up”. [ 53 ] She then stated that everyone planned to stay the night. She had recently became single and everyone else was partnered up.

She said she likely discussed sleeping arrangements with the accused. She then stated she was with the accused “by default”. She later repeated this same statement in cross-examination. [ 54 ] She spoke of the evening and singing Karaoke with the accused. She stated that at one time during the evening, Glen and Mark asked her about her intentions with the accused, i.e. would she hook up with him? [ 55 ] She stated that Abby was going to stay, but Abby left. She said she was trying to convince Abby to stay but could not convince her.

She said she was very tired, and on her own accord, she went downstairs and to bed on the air mattress at about 3:30 a.m. At about 4:00 a.m. the accused came to the room. All of the lights were off, so he turned on the light to his phone. He stripped to his underwear and started making out. She said she was on the mattress, on the side close to a t.v. stand so it was not easy to get out of the bed from there. She thought she was in an uncomfortable situation. She said she just wanted to kiss him and make the situation go away. She said she did not want to do hook ups. He was kissing her.

She did not want to do anything more. She felt really scared. She felt trapped. [ 56 ] She told him she does not do hook ups, and he said don’t worry he could not get it up. She laughed nervously and loudly but was shocked. She felt his intentions were to do more. [ 57 ] She said she tried to pretend she was asleep but he moved with her and had his hand under her shirt on her stomach. She felt him gyrating against her about an hour later. She could not say where her hands were at this time. There were no pillows on the bed. She had told him his chest made a good pillow.

She had not fallen asleep until 5:00 a.m. or 6:00 a.m. [ 58 ] Later, she needed to go to the washroom and he grabbed her as she went to leave. She said “washroom”. He let her go and she used the washroom, then returned to the bed. In the morning he did not want her to leave. [ 59 ] She stated she did not want him to kiss or touch her. She was never clear about kissing. She says she was very explicit that she did not want to do more. She told him 5 to 10 times she did not do hook ups. [ 60 ] At about 8:30 a.m., she called a friend to pick her up. She went upstairs and spoke to Duc, then texted her friend.

She advised Duc and Zena what had happened. Later, she went back to their house to pick up her belongings. Three or four days later, she spoke to the police. She indicated she was not sure if this was a crime. She was in shock, and not sure of the implications. Eventually however she decided to go to the police. [ 61 ] She said she felt like her body was not her own. She suffered no physical injuries, but the incident had a personal and psychological impact. [ 62 ] Under cross-examination, she indicated she knew Glen best. She was closest to Glen.

She thought she told Glen she was interested in getting to know the accused better. She said the accused was cute. She agreed that Jessie was at the party and that she might have made a comment to Jessie that if the accused did not soon make a move on her, she would move on. She agreed that at the party she and the accused were close. They may have held hands. She thought he put his hand on her thigh, the lower thigh near the knee. She agreed she rested her head on his shoulder one time. She said she thought she and the accused discussed sleeping arrangements. The accused had the mattress in the basement.

It was agreed she would sleep there with him.

[ 63 ] She then added that even earlier, it was agreed she would sleep with Abby. She disagreed that she changed the plans with Abby. She insisted Abby changed the plan. She said she could not remember if Abby was concerned about her staying with the accused. She denied that Abby asked if she was sure that was what she wanted. She did say she remembered Abby offering her a ride home and that she turned Abby down. She agreed she could have slept on a couch, and there was a couch in the room where the accused slept.

She chose to sleep on the mattress with the accused. [ 64 ] She stated that she went to bed first, and the accused came later. Defence counsel suggested to her that Glen and Zena came down to the room with the accused, the lights were on, and they all had a little chat. She then agreed with defence counsel that all of that happened.

She repeatedly stated to defence counsel: “Thank you for pointing that out to me.” She stated she did not remember Glen teasing her about not sleeping on the couch. [ 65 ] She agreed with defence counsel that after the accused came to bed, for some time, they were holding each other and kissing. Then there was a break, and they talked.

She said she was aware Audrey heard the laughter. [ 66 ] She agreed with defence counsel that the text she sent to Zena the next morning stated: “I’m smashed and I crawl onto the air mattress in the basement in the dark to go to sleep…” She agreed with defence counsel that her statement to police referred to the text to Zena and said “That’s exactly what happened”. She agreed with defence counsel that her earlier testimony was to the effect that she was just slightly inebriated and knew everything that was going on. She denied this was in any way inconsistent with saying she was smashed.

She denied that this was any kind of an over-statement or exaggeration. [ 67 ] She agreed her text indicated all the lights were off, but she now believes the lights were on. She then said she could not say if the lights were on or off. [ 68 ] She agreed with defence counsel that right after the accused got into bed, for a fairly extended period of time, they were holding each other and kissing. Apparently, this was the “Making out” that she earlier referred to. She agreed there was a break for a period of time, and then a further period where they again held each other and were kissing.

This was him making out with her again. At one point in time, he was on top of her as they kissed. [ 69 ] She also agreed with defence counsel that as they were kissing, he had one hand on her bum over her clothes. At one time, he moved his hand upward towards her chest. She stopped his hand and moved it down again. They simply carried on kissing. She also agreed with counsel that throughout the night she and the accused had some romantic interest in each other. [ 70 ] She agreed with counsel that Glen and Zena and the accused all came to the room and the lights were on.

She disagreed with counsel’s suggestion that she wasn’t trapped. [ 71 ] She agreed with counsel that the accused did not touch her breasts and did not touch her vagina. She then stated that this was “to the best of my knowledge”. She indicated that she did not know what had happened while she was asleep. Later, she indicated that there was no intercourse. [ 72 ] She indicated that she was kissing and making out with the accused, thinking that he would stop making out with her. At no time did she say no stop doing that.

She may have said she was not interested. [ 73 ] She was asked about when the accused was grinding or gyrating against her. Earlier, she said that was much later. In cross- examination, she stated the first time she felt this was when the accused was on top of her. She agreed with counsel that the police asked if he was “dry humping”. She told police she did not specifically remember. [ 74 ] In re-examination, she was asked what “no hook ups” meant. She indicated it meant no oral sex, no intercourse, and no French kissing. [ 75 ] The next witness was Duc Nguyen.

He testified that he is 27 years of age and has lived in Regina for 13 years. On September 25, 2020, he was at the party. He arrived with his girlfriend, Jessie Young. He set up his mattress fairly early, and was the

first one to go to sleep. He did not know how much either J.C. or the accused drank. He felt they both knew what they were doing and were aware of their surroundings. [ 76 ] The next morning, at about 8:30 a.m., J.C. told him what happened. Around 11:00 a.m., the accused had some lunch with the others. He seemed fine. Then he went home. [ 77 ] The witness stated that he was at the meeting at the Broken Rack, when they confronted the accused. The accused felt he had consent. They were kissing and talking, and then rolled over and cuddled and went to sleep.

As he recalled, they asked the accused if he had asked if she was okay. The accused responded “No, maybe I should have”. [ 78 ] Under cross-examination, the witness stated that the accused believed he had consent and they had a connection. [ 79 ] The Crown closed its case. The first defence witness was Ms. Jessie Young. She testified via Webex. She now lives in Saskatoon. She works and goes to school at the U of S. [ 80 ] She testified she arrived at the party at approximately 9:00 p.m., and left at about 1:00 a.m. She had only one drink because she was driving. She believed she remembered the party pretty well.

She said she knows J.C., but not well. She testified that at the party she had one conversation with J.C. She asked J.C. how things were going with the accused. J.C. responded that she was frustrated because the accused had made no move to go out with her. J.C. then said that if he did not soon make a move, nothing would happen. She would move on. The witness stated this conversation was early in the evening. J.C. was sober. They had not started drinking yet. As the evening went on, the accused and J.C. were sitting very close together. [ 81 ] The accused Jeffrey Muma took the stand.

He testified he is 23 years of age, was born and raised in Regina. He testified about his upbringing and who he is. [ 82 ] He started working at GoodLife in December of 2019, and met J.C. in the summer of 2020. At one time, J.C. and others were at an event in his backyard. On another occasion, the group was at an event in her backyard. [ 83 ] J.C.’s house was just a block from Zena’s residence. [ 84 ] Before the party, he had no expectations that anything would happen with J.C. Glen told him that J.C. was interested in and attracted to him.

Throughout the night, they developed a connection. [ 85 ] On Friday September 25, he and others worked on a group project for one of his classes at University until about 5:00 p.m. He then returned home and got ready for the party. He left his house at about 6:30 p.m. and went to pick up a keg. It became apparent they would not be able to use the keg as they did not get a pump for it. Later they took it back. Sometime not long after 8:00 p.m., the guys went to Sobeys Liquor and purchased alcohol. Around 9:00 p.m., they were back at Zena’s and began drinking and playing drinking games.

They played beer pong and J.C. asked to be his partner. Later, at about 11:00 p.m., they sat at the kitchen table. She sat beside him. She put her head on his shoulder and he had his hand on her lap. They held hands. This went on for some time. It was during this time that the picture, now Exhibit P-2, was taken. She initiated some cuddling, and they sang karaoke. [ 86 ] When he first arrived he set up his air mattress in the bottom basement. When they were sitting in the kitchen, J.C. asked if she could sleep in his bed. He agreed. [ 87 ] He believed that around 2:30 a.m., J.C. said she was going to sleep.

He said okay see you soon. He remained upstairs for about a half hour longer. When he opened the door to the room, the lights were on and J.C. was sitting on the air mattress. Glen and Zena were right behind him. The four of them all talked. Glen jokingly asked if one would be sleeping on the air mattress and one on the couch. J.C. said no and they giggled about this. They left and the lights were turned off. He turned on the light on his phone, stripped to his underwear, and got onto the bed. They cuddled and began talking. She said he was really cute, and he said she was cute.

He asked if she was interested in him and she said she was. They then began kissing and kissed for an extended period of time. During this time, he had his hand on her bottom. At one time he moved it upward toward her chest. She stopped his hand and moved it down.

There was more kissing and she said she did not do hook ups. He jokingly responded he could not get it up anyway. [ 88 ] There was only one small pillow in the room. He had his head on the pillow. She put her head on his chest and said it made a good pillow. Then they cuddled and just tried to sleep. After a while, there was more kissing. During this time he was laying on top of her for a short time. He stated “this fizzled out,” and they went to sleep. [ 89 ] He woke up a couple of times. On one occasion she climbed over him and said she was going to the washroom. She came back to bed.

They laid close to each other and went to sleep. [ 90 ] In the morning, when J.C. got up he asked her to stay. She said she could not as she had lots to do that day. [ 91 ] A while later he went upstairs. He chatted with the others and they had brunch. He packed up his things and went home, as he had to work later in the day. Also, later in the day, he sent a snapchat to J.C. asking how she was doing. He received no reply. That evening, he was tired and went to bed early. [ 92 ] On Sunday afternoon he received a text advising they were meeting at the Broken Rack at 8:00 p.m. for a drink.

At the Broken Rack, Duc advised J.C. was upset and they asked what happened. They asked if he had asked for consent. He stated no, he did not verbally ask because everything was consensual. [ 93 ] After leaving the Broken Rack, he attempted to text J.C. again, but she had blocked him. [ 94 ] He was specifically asked whether he gyrated against her. He testified this did not happen. He said he was briefly laying on top of her as they were kissing, but there was no gyrating. [ 95 ] He stated there was no verbal communication about starting or stopping. She only said “no hook ups.” He stated there was laughing.

The mood was pleasant. Everything was consensual. There was extensive kissing and cuddling. This was initiated by both. He testified that he did not touch her breasts or vagina. He had his hand on her waist at all times, above her clothes. [ 96 ] Under cross-examination, he reiterated that he thought things went well through the night. They sat close and cuddled. He agreed that his friends encouraged them to be together. [ 97 ] When they were sitting together after karaoke, J.C. asked if she could sleep with him in his bed. He stated he did not assume sex would happen.

He stated they were kissing in bed and then they had the “no hook ups” conversation. To him this meant no sex. The kissing and cuddling was mutual and consensual, and it continued. He was asked if he was testing the waters. He said yes, he thought this might be the start of something. He said the kissing was mutual. [ 98 ] He was asked about his statement that “things fizzled out”. He indicated that things were coming to a natural end. They reached a natural end and went to sleep. Nothing seemed off. He stated that he was told only once that she did not do hook ups.

He stated that when she stopped his hand, she did not indicate that any other touching, including the hugging and kissing, would stop. The mutual kissing continued. [ 99 ] He denied that J.C. ever said that she was too tired or drunk. Had she said that, they would have just gone to sleep. She also never said no to the kissing, or they would have stopped. [ 100 ] He agreed at one time, she was laying on her side with her back to him. He laid on his side with his front to her. He agreed she may have felt his penis against her at this time, but denied there was any gyrating.

He denied he ever had his hand on the waistband of her pajamas or that he attempted to lift her shirt.

[ 101 ] When counsel suggested that J.C. did not want to cuddle, the accused denied that. [ 102 ] He agreed that at the Broken Rack, the conversation was pretty much as laid out by the other witnesses. In other words, he agreed he did not ask for consent. He agreed he said maybe he should have. He stated he is confident that everything that happened was consensual. [ 103 ] He was asked how much he had to drink, and he said about seven drinks. He specified he had about five beer, one vodka ice and one paralyzer. This was over the course of the entire evening. He never felt drunk.

He estimated on a scale of 1 to 10, that he would be about 4 or 5. He indicated his thinking was not impacted. Also he thought J.C. was sober. Lastly, he stated that J.C. did not seem off or discontented when she left the room. THE ARGUMENT [ 104 ] Both counsel were in agreement that this is a W. (D .) [1] case, and the issue is whether the Crown has proved the charge beyond a reasonable doubt. Crown counsel argued that the accused was required to very explicitly and verbally request consent. He did not do so.

There was thereafter non-consensual touching of a sexual nature, and thus the offence of sexual assault was established. [ 105 ] Defence counsel argued that by agreement and consent, both parties got into the same bed. Thereafter, there were two extended periods of holding each other, cuddling and mutual kissing. All of this was by consent. Nothing else happened. He argued that J.C.’s evidence is not credible or reliable. The Crown has not proved any sexual assault, and the charge must be dismissed.

ANALYSIS AND DECISION [ 106 ] The law is clear that if I believe the evidence of the accused, or have a reasonable doubt based upon his evidence, then the charge must be dismissed. The accused clearly testified that there were two extended periods of holding each other and hugging and kissing. Further, that all of this was consensual, and nothing else happened. In a curious way, this is substantially confirmed by the complainant’s evidence. She said the accused jumped into bed and immediately tried to make out with her. After a while, this stopped, and she pretended to be asleep.

Then, the accused again started to make out with her. However, in cross-examination, this “trying to make out with her” were the two lengthy periods of J.C. and the accused holding each other and hugging and kissing. I would not describe mutual hugging and kissing as one party attempting to make out with the other or as a non-consensual touching resulting in a sexual assault. [ 107 ] The accused testified that he had no expectation that they would have sex. I have some difficulty believing that.

I believe most healthy young males, when a young woman approaches them and asks to get in their bed and does so under such circumstances, would have some expectation of further sexual activity. That said however, a mere expectation of some further sexual activity in no way constitutes a sexual assault. The accused’s evidence is substantially corroborated by others and the surrounding events.

Generally speaking, his evidence is cohesive, credible and reliable. [ 108 ] By way of contrast, there are very significant contradictions and problems with the complainant’s evidence that cause me to conclude that it is not credible. Evidence that is not credible, by definition, is not reliable. Simply stated, I cannot accept her evidence, over and above the accused’s evidence, and determine there is proof beyond a reasonable doubt. [ 109 ] I begin by canvassing some of these particular contradictions and problems with the complainant’s evidence.

Firstly, in her evidence, the complainant said that she was slightly inebriated, but in full control and remembered everything. In her text to Zena, she said she was smashed. In her statement to police, she referred to the text to Zena, and stated everything happened exactly that way. Was she slightly inebriated or smashed? She denied there was any contradiction here or any over-statement. However, the wording that she was smashed or that things happened exactly that way were her words. They were not suggested to her by any other person.

When defence counsel questioned a number of the other witnesses, no one suggested that smashed and slightly inebriated were the same thing. They all said she was not smashed, she was fairly sober and appeared to know exactly what was going on. When asked about this in cross-examination, the complainant refused to admit that there is even a contradiction here. [ 110 ] Secondly, the complainant said she was trapped at the back of the bed, and felt trapped. She was not trapped. She was free to

leave and she did leave to go to the washroom and then returned to the bed. She also left the bed in the morning. There was no evidence that she wanted to or asked to leave, and no evidence the accused did or said anything to detain her or prevent her from leaving. [ 111 ] Thirdly, in her evidence, at a number of key points, she said she “thought” something happened or something “likely” or “probably” happened. For example, she said she likely discussed sleeping arrangements with the accused. She said she thought she told Glen she was interested in getting to know the accused better.

She said she could have made a comment to Jessie that if the accused didn’t make a move on her, she would move on. She stated that when she and the accused sat together, they may have held hands. She thought he put his hand on her thigh. It was the lower thigh, near the knee. She rested her head on his shoulder one time. All the other witnesses testified about these events in clear and explicit terms. I accept their evidence.

I believe she knows they happened, but she downplays her role and portrays these events as being uncertain. [ 112 ] Fourthly, she clearly stated in her evidence that she went to bed and turned the lights out to go to sleep. Then, about a half hour later, the accused came downstairs, jumped into bed and started making out with her. On all of the evidence, I would conclude that things did not commence in that fashion at all. Rather, Glen, Zena and the accused came downstairs at the same time. When they arrived, the lights were on, the complainant was awake and sitting on the bed. They all had a conversation.

Glen and Zena left. The lights were turned off, the accused stripped to his underwear and got into bed, and they started consensually kissing. [ 113 ] Fifthly, and very significantly, the complainant’s evidence is completely contradictory and irreconcilable with the evidence of Abby Bailey. I would suggest that Abby Bailey is a disinterested third party who has no particular interest or stake in assisting one party of the other. Both the complainant and Abby Bailey testified that the original agreement was to the effect that they would share a bed together.

The complainant said that Abby broke off the arrangement and decided she would go home. Why would she do that? Abby denied that and testified the situation was exactly the opposite. Abby said she decided to go home only after J.C. determined that she would sleep with the accused. Further, that she then had two separate conversations with the complainant to make sure that the complainant wanted to sleep with the accused, and did not want to go home. In both of those conversations, the complainant said she was sure and declined a ride home. I accept Abby Bailey’s version of events.

The complainant’s evidence on this is not only inconsistent with Abby Bailey’s, it is inconsistent with all the rest of the evidence. [ 114 ] Lastly, in her examination-in-chief, the complainant stated that when it came to making sleeping arrangements, everyone else was partnered up and she was “with Jeff by default”. She again made this same statement to defence counsel in cross-examination. It is not clear to me whether she was saying the accused became her partner “by default” because everyone else was “partnered up”, or she was saying she ended up in his bed “by default”. In my view, however, either

interpretation of this comment is a significant misrepresentation of the events of that evening. She was with the accused and ended up in the same bed with him because she voluntarily took significant steps to be with him and get into that bed. [ 115 ] All of these points are not just problem points or contradictions in the complainant’s testimony. In my view, the common denominator or theme through all of these points is an attempt to reduce or minimize her role in the events of that evening, and to increase and exaggerate the role of the accused in all of this. I cannot rely upon this evidence.

The evidence from both parties was that they got into bed and there were two prolonged periods of holding each other and hugging and kissing. These were consensual. Consensual hugging and kissing does not constitute a sexual assault. She said he had his fingers in or at the waist band of her pajamas and said he was gyrating against her. She was very unclear as to when this happened. She told police she couldn’t specifically recall if he was gyrating or “dry humping”.

I have too many problems with the complainant’s evidence and don’t accept that evidence. [ 116 ] I conclude that after the complainant and the accused got into bed, there were two extended periods during which they cuddled, hugged and kissed. These activities were mutually initiated and consensual. The Crown has not proved anything additional occurred. In particular, I cannot conclude the accused was gyrating against her. In my view, the Crown has not proved any offence of sexual assault, and the charge is dismissed. Dated at the City of Regina, the Province of Saskatchewan, this 25th day of July, 2023.

________________________________ D. Kovatch, J