R. v. M.L.F. Date:, 2013 BCPC 183

Citation: R. v. M.L.F. Date: 20130517 2013 BCPC 0183 File No: 5208-1, 5208-2-A 5208-3-A, 5208-4-A, 5208-5-A Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.L.F. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: M.M. Counsel for the Defendant: M.S. (as agent for H.C.) Place of Hearing: North Vancouver , B.C. Date of Judgment: May 17, 2013

[ 1 ] THE COURT: These are my reasons for judgment in the matter of Regina v. M.F. [ 2 ] M.F. is a youth facing a charge of sexual assault of K.K. on January 28, 2002, contrary to

Section 271 of the Criminal Code . [ 3 ] The alleged offence occurred during the course of a house party. The accused and K.K. were friends. All of the witnesses called were youths or young adults, and were acquaintances or friends, and in one case, a step-sibling. [ 4 ] All of the youths at the party were consuming alcohol and marihuana. The accused and K.K. were highly intoxicated. K.K. also consumed a pill, which is believed to have been morphine. [ 5 ] The issues to be resolved rest on the credibility and reliability of the witnesses with respect to K.K.'s capacity to consent.

If the court finds that she did not have the capacity to consent, I must then determine whether the accused had an honest but mistaken belief that she had the capacity to consent. [ 6 ] The Crown called the complainant, K.K., and two youths, D.H. and T.P., who were present at the party, a youth worker at K.K.'s school and a toxicologist. [ 7 ] The defence called another youth, B.F., who was also present at the party. Review of the Evidence [ 8 ] D.H. is the step-sibling of C.M. The party was held in the basement of C.M.'s house where he resided in a semi-independent suite.

D.H. was familiar with the suite as he had his own bed in C.M.'s bedroom for when he stayed there. [ 9 ] The suite consisted of a bedroom, a kitchen and living area, a bathroom and an entrance way. The bedroom door is wedged behind a dresser and is always left open. He initially said that you cannot see into the sleeping area unless you are in the doorway. [ 10 ] Contrary to other witnesses who testified that C.M. has a medical concern and has a hospital-style bed which is somewhat high off the ground and has a mattress that can be tilted up, D.H. said C.M.'s bed was a queen mattress on blocks on a board.

He said his own bed consisted of two single mattresses stacked on the floor. [ 11 ] He testified that a number of youths were hanging out at the house earlier in the evening but they did not have any alcohol. He said they were smoking cigarettes and "stuff" which I infer means marihuana. He said K.K. and D.O. arrived with the liquor and everyone except him began taking shots of whiskey, and Jagermeister. He said at some point "jumbo" shot glasses were being used, in particular by K.K. [ 12 ] D.O. produced what he said were morphine pills left over from when he broke his ribs.

D.H. says that he recalled being shown and told they were .9 milligram tablets. D.O. and K.K. each took one, but he was unable to say when, except that it was after they had started drinking. In cross-examination, he said he thought they took the pills around 9:30. [ 13 ] He said both K.K. and M.F. became intoxicated, as did others at the party. He described that over the course of the evening M.F. became loud and obnoxious, but was not having any issues with his balance.

He described K.K. as wobbly and loud, and that she continued to drink and wanted people to watch her as she took more shots. [ 14 ] He observed that K.K. and M.F. were making out in the kitchen, and then at one point the two were in the bedroom lying on C.M.'s bed caressing and kissing. He said you could see them from the kitchen, which contradicted his earlier testimony that you could not see the beds unless you were in the doorway. [ 15 ] They then went outside to a patio where people went to hang out and smoke. He said K.K. was sitting on M.F.'s lap, facing him and they were kissing.

He said this went on for a long time, and that people were telling them to "get a room" because they were tired of having to watch them. [ 16 ] He also said that K.K. was having difficulty maintaining her balance while sitting on M.F.'s lap and it appeared at times as though she might fall. At one point someone put their hands out in case she fell over. [ 17 ] He described M.F.'s symptomology of intoxication at that point as loud, having a good time, wobbly on his feet and slurring his speech. He said K.K. needed to move her feet to keep her balance or lean against things.

She was also slurring her words and was loud and obnoxious. She was speaking, but not making much sense. [ 18 ] He testified that once they went inside again, he, T.P. and B.F. put K.K. in C.M.'s bed. He and T.P. put her in the recovery position because they were concerned about the effect the morphine pill might have. K.K. understood they were putting her to bed and was compliant. He said she fell asleep immediately and stayed in bed for 20 minutes to half an hour, during which time she was completely asleep.

However, he did not stay in the room during this time. [ 19 ] When he next looked in on her, she was awake and M.F. was on top of the covers on top of her and they were again making out. He was dismayed as he did want to have people engaging in sex at the party. In his view, he believed that if sober, K.K. would not likely have engaged in sex with M.F. as they were friends. [ 20 ] He said at this point K.K. was awake and appeared to be knowingly and willfully engaged in this sexual activity. He said that T.P. and B.F. were also making an effort to get them to stop.

Neither T.P. nor B.F. testified to this having occurred. He said he gave up and went with some others to a nearby park. C.M. then apparently went in the room to go to bed. When D.H. returned to the house, he said C.M. was in his bed asleep, and M.F. and K.K. were in D.H.'s bed. If D.H. is correct, this means that C.M. must have caused the two of them to get out of his bed and they then moved to D.H.'s bed.

[ 21 ] He said K.K. was on her stomach with her knees on the floor and her upper body on the mattress. M.F. was behind her making a thrusting motion, and he concluded they were engaged in sexual intercourse. M.F. had a blanket draped over his back. [ 22 ] D.H. went to him and shoved him aside and asked him what he was doing. D.H. said K.K. appeared to be asleep and did not respond to him tapping her. M.F. said, "It is okay, she was awake before this." [ 23 ] He said M.F. was wearing only a t-shirt and socks. K.K.'s pants were down around her knees and her top was scrunched up around her waist.

He did not see her panties. He tried to flip her over on the bed and she was dead weight. He said she rolled back on her front again. He was calling her name and asking her if she was okay, but she did not respond except to groan. D.H. told M.F. he had to leave and M.F. said he would get his pants on. When he did not come out of the bedroom, D.H. went back and found the two of them lying on the bed "spooning in a way" with their lower half under the covers. He later said that K.K.'s knees were still on the floor. [ 24 ] D.H. then became forceful and demanded M.F. leave the home immediately.

He said he was very upset and angry about a sexual assault having just occurred. He described M.F. as being very highly intoxicated. [ 25 ] M.F. did get dressed and left the home. D.H. said he then went back to the park to get T.P., S.D. and D.O. and to tell them what had happened. They came back and got K.K. settled in bed and decided to leave her there for the night to sleep. [ 26 ] He said the next morning he and T.P. went back to C.M.'s and told her what had happened. K.K. and T.P. then left to go to K.K.'s father's house.

He said K.K. was upset when she found out she had been engaged in sexual intercourse with M.F. [ 27 ] D.H. testified that he did not consume any alcohol that night and went on at some length as to why he had nothing to drink that night. However, this was contradicted by K.K. who described him as drinking heavily, T.P., who said he was drinking, and B.F. who said he was one of the most intoxicated people at the party. He did admit to consuming marihuana, but did not advise the police of this when he gave his statement.

He did not give a statement for three to four weeks after the events. [ 28 ] He was unclear in direct examination about the sequence or timing of events, but in cross-examination purported to give details about this, which were not in his statement. [ 29 ] I find D.H. to have been an honest and sincere witness, and that he was attempting to provide accurate testimony to the best of his ability. As will be seen below, his evidence is materially contradicted by the other witnesses. [ 30 ] K.K. testified. She was 17 at the time of the incident before the court. She has since been for treatment for alcohol abuse.

She acknowledged that she frequently drank to excess and suffered blackouts. She also agreed that when she was intoxicated she would engage in conduct, including sexualized behaviour, she would not engage in when sober.

She also had experience combining drugs and alcohol. [ 31 ] In her statement to the police she said she consumed four to five shots before taking the morphine, but in her testimony she said she probably had 10 or more, and admitted that she lied to the officer about that because she felt insecure about her alcohol problem. [ 32 ] K.K. confirmed much of what D.H. recounted about how the party came about and how they all knew each other.

Ironically, the party was in M.F.'s honour as he was headed off for residential substance treatment on the following Monday. [ 33 ] She recalled D.H. taking shots along with everyone else and at the same rate. [ 34 ] She and D.O. brought some liquor, being a 40-ounce bottle of Jagermeister and a 26-ounce bottle of rum or whiskey. She said there was already a bottle of vodka at the party when she and D.O. arrived. She said that on the way to the party, D.O. and she had talked about the morphine he had, and he took one, but at that time she declined.

Later at the party she did agree to take one after she was intoxicated. She said D.O. showed her the bottle. Shortly after taking the pill she blacked out and has no memory of the events of the rest of the evening. [ 35 ] In direct she said at one point she recalled being in the spare bed in C.M.'s room, and her next recollection is waking up in the morning. In cross-examination she added that she recalled M.F. was in the bed with her, but she could not say what they were doing. [ 36 ] When she awoke, her panties and pants were on but unbuttoned, and her bra was on one arm and her shirt was undone.

C.M., D.O., T.P and D.H. were there in the morning and were all talking together with her about what had gone on the night before. [ 37 ] Of significance, is that to her recollection, no one mentioned anything to her at all about her having been consensually engaged over the course of the party in sexualized behaviour with M.F. The only reference to this that she recalls now is that she had been sitting on his lap outside trying to smoke, but she was nodding off so she was put to bed. [ 38 ] She was told that she had been sound asleep and snoring, and could not be awakened.

M.F. then went into the room and came out claiming he had "boned her." This understanding of the events is what caused K.K. emotional upset and gave rise to a belief she had been assaulted. However, this evidence is not probative of her state of mind at the relevant time or her capacity to consent. [ 39 ] In her evidence, T.P. gave a markedly different version of the events of the next morning and said K.K. was told that she had hooked up with M.F. earlier in the evening.

K.K. went to her father's with T.P. that morning. [ 40 ] On Monday, K.K. went to her art therapist and the youth worker at school, and told them what she had been told had happened to her. She was taken first to the hospital and then to the police to make a complaint. [ 41 ] Exhibit 3 is a Facebook entry sent to her by M.F. on January 31st which states: Yo.

Shane told me that you are really mad at me about the weekend, last thing I remember was having Jager bombs so I cannot really tell you what happened that night because I do not remember, anyways I am about to get on the plane and it really bums me out that you

are upset with me and I am going to be gone for a while, anyways I will miss you and sorry things had to be this way before I left. (Spelling corrected) [ 42 ] She then texted M.F. using the phone belonging to the youth worker at the school saying that she was hurt by what he did and that she could not believe he could do that to her. She testified that was the only contact she had with M.F. after the party. However, in her statement, she said she had called him on the Saturday just to say "hi" and before she knew what had happened.

She admitted in cross-examination that this was not accurate. [ 43 ] J.R. was the youth worker who allowed K.K. to text M.F. She corroborated the disclosure made by K.K. at school and confirmed that a text was sent. [ 44 ] T.P. was also called by the Crown. She gave a statement on February 21st, 2012. She had a glass of wine earlier in the evening before she got to the party, and over the course of the party she said she consumed a marihuana cigarette and two or three shots.

She did not advise the police in her statement that she had been consuming alcohol or drugs. [ 45 ] She also recalled that D.H. was drinking but said he was "not too drunk" and that "he is a jolly guy normally so I cannot really say" but was "probably pretty stoned though." She agreed she did not like M.F. before the events of the party as he had been disrespectful on previous occasions. [ 46 ] She testified she arrived at the party later in the evening, sometime around 9:00 to 10:00 p.m. She met K.K. there, and they hugged as they had not seen each other in some time.

T.P. was in and out of the home as she was making calls to her boyfriend and father. [ 47 ] She was not happy with what she described as the "gong show" going on at the party, and was concerned about people over- consuming alcohol. She recalled that K.K. had a drinking game which some people were trying to play. [ 48 ] She said K.K. and M.F. went outside together and were gone for around 10 minutes when she found them in the smoking area. K.K. was on M.F.'s lap, facing him, and they were kissing and making out. She said K.K. was flopping around and looked like she might fall over and so was moved to D.H.'s lap.

This detail was not included in her statement and was not testified to by D.H. [ 49 ] T.P. said she asked K.K. if she was okay and if she wanted to go to her father's home.

In her testimony, she said she also pointed out to K.K. that she was making out with M.F. and K.K. responded, "M. is my buddy, I would not/never make out with/hook up with him." In her statement she did not report either version of the latter statement. [ 50 ] In cross-examination, she agreed she was unable to place when this conversation occurred, and that it might have been at the end of the night. [ 51 ] T.P. described K.K.'s symptomology of intoxication at that point as being able to walk on her own but with difficulty, somewhat like a toddler, her speech was slightly slurred and although slow to respond and repeating herself, she was responsive to what was being said to her.

She said that at some point K.K. was apparently not feeling well, and so she and D.H. took her to the bedroom and laid her on her side on one of the beds. [ 52 ] In direct, she said she was not certain if they put her on C.M.'s bed, or D.H.'s bed, but in cross-examination she said it was D.H.'s bed. [ 53 ] T.P. said this was around 10:50 or so in the evening and she had noted the time as it was around when the last bus to her house left. However, her evidence was also that she might not have arrived at the party until as late as 10:30.

She said she then called her dad to tell him she would not be coming home that night. She remained outside on the phone for some time and then went back into the house. [ 54 ] T.P. described M.F. as being pretty drunk, his speech was slurred, he seemed confused and kept repeating a nonsensical word. He was also stumbling when he walked. [ 55 ] When T.P. re-entered the house she said she was following C.M. and was talking to him about K.K. staying there for the night. She said some of the other males at the party were standing outside the bedroom, whistling and catcalling.

She went into the kitchen area and saw M.F. jump up from D.H.'s bed. She was unable to say what position he had been in on the bed. He ended up standing on the bed. He had boxer shorts on, but no pants, and his penis was exposed. [ 56 ] In her statement she said that when she first saw him he was standing on the bed and made no mention of seeing him jump up. In her statement she also said she went in, and grabbed him, and dragged him out to the kitchen and spoke to him there.

She said she was not aware if anyone else was in the room when she entered, but other people entered the room behind her, and some continued to make catcalls, so she assumed they were some of the males at the party. [ 57 ] She said K.K. was on the floor in a fetal position with one arm and the side of her body on the bed and her legs on the floor. She said she thought K.K. was dead. Her pants were down around her knees and her top and bra were pushed up exposing her breasts. [ 58 ] T.P. said she went directly to her, and began shaking her and loudly calling her name.

In her testimony she said K.K. responded after about five seconds or so with a gargling sound, and in 30 seconds to a minute with, "I am okay, I am okay." The latter response came after T.P. said she was going to call an ambulance. [ 59 ] In her statement she did not describe that K.K. first made a gurgling noise, nor indicate there was any delay in K.K.'s response. Rather, in her statement, she said that K.K. immediately stirred and responded to a comment made by someone about calling an

ambulance with, "Hey, I am fine, I just want to sleep." [ 60 ] T.P. in her testimony said she then left the room to confront M.F. in the kitchen. Another person told her M.F. had no pants on because he had urinated in his pants earlier in the evening. [ 61 ] She went back in and checked on K.K. who seemed better, in that she now appeared sleepy. K.K. said she wanted to stay there for the night and took some water. T.P. left and stayed the night at D.H.'s house and returned to C.M.'s the next morning.

She then told K.K. some of what had happened and took her to her father's home. [ 62 ] In cross-examination, T.P. adopted from her statement that she had in fact seen K.K. and M.F. in the bedroom in a bed together making out after K.K. had been put to bed, and before she went outside to call her father to tell him she would not be coming home. This would have been the last she had seen of K.K. before finding M.F. apparently having intercourse with K.K. while she was unconscious.

She agreed there was nothing alarming or even of concern with what was happening between them at that earlier time. [ 63 ] T.P.'s evidence does not allow for D.H. to have been the first one at the bedside, or account for his immediate attempts to rouse K.K. and move her fully onto the bed. She said D.H. came in and put a blanket on K.K. after she responded to her that she was okay. [ 64 ] Their evidence is also contradictory in that D.H. said that K.K. did not respond at all, except to groan, and that he left M.F. in the room to dress and that he had to go back in and get him out of bed and out of the room.

The evidence of D.H. does not allow for T.P. to have been there at all during this time. [ 65 ] T.P.'s evidence that she followed C.M. into the house prior to finding K.K. and M.F. in the bedroom is also in direct contradiction to the evidence of D.H. who said C.M. was in bed asleep when he found M.F. and K.K. engaged in intercourse. [ 66 ] Again, I conclude that T.P. was sincere and attempted to testify to the events to the best of her ability.

Nevertheless, her evidence is inconsistent with that of D.H. and the defendant's witness, B.F., and was inconsistent with her statement on the material issue of the state of consciousness of K.K. immediately after the sexual contact with M.F. ended. [ 67 ] I agree with the submissions of defence counsel that this, along with other inconsistencies, raises the spectre of unconscious bias towards M.F. [ 68 ] B.F. was called by the defence. She did not give a statement to the police until March 9th, 2012. She was a close friend of C.M.

She had been friendly, although not close, with K.K. up to the incident, but is no longer on friendly terms with her. I infer that she now holds some antipathy towards K.K. given the general tone of her testimony. She was also friendly, but not close to M.F. before the party. [ 69 ] She said she consumed two to three shots of vodka over the entire evening and consumed some marihuana. She had a different recollection of how and when the liquor got to the party. She said once it arrived that K.K. began to drink shots and consumed somewhere around 10 ounces in an hour to an hour-and-a-half.

She recalled that K.K. asked D.O. for the morphine after she was already intoxicated. [ 70 ] B.F. was put off by K.K. flirting and making physical contact with a number of the males over the course of the party. She observed her to be flirting with and touching M.F. over the evening as well. [ 71 ] B.F. described K.K.'s symptomology of impairment over the evening as being loud, a little sloppy, having somewhat slurred speech and that she was not making sense and could not get her point across. She was talking just to talk at times, but if she was asked a question she was responsive.

She also said K.K. stumbled and had to lean on people on occasion. She described that K.K. engaged in play fighting with two of the males outside and at that time was "getting really sloppy and annoying." [ 72 ] B.F. said she was not aware of when K.K. took the morphine, but also testified that before taking the morphine K.K. was "K.K. drunk" but afterwards she was not herself and started acting crazy, ecstatic, and jumping on or all over people and free style rapping. [ 73 ] Immediately prior to entering the bedroom, B.F. described K.K.'s symptomology as falling over and slurring her words.

She said her behaviour was generally inappropriate and without boundaries. [ 74 ] With respect to M.F.'s level of intoxication, B.F. said he was stumbling, loud, talking a lot and could mostly be understood when speaking. [ 75 ] Once inside the house she saw K.K. touching and whispering to M.F. in the area between the kitchen and the bedroom. K.K. then pulled M.F. into the bedroom. Lights were off in the bedroom but on in the kitchen. There was no one else in the bedroom. They kissed for a bit and got onto one of the beds. K.K. slid her pants down to her knees and M.F. did the same.

K.K. turned face down on the bed with her hands beside her face. She was on her knees with her buttocks raised and M.F. got behind her. Their faces were toward the doorway.

They pulled a blanket around their legs and then appeared to engage in intercourse. [ 76 ] In direct examination, B.F. said K.K. was awake and making noises she took to be an expression of pleasure, and although her speech was slurred, B.F. could hear her saying, "It feels so good." [ 77 ] In cross-examination she agreed that in her statement she referred only to K.K. moaning as though it was pleasurable and was not saying any words she could understand.

At one point she also said the two were kissing while "doing it doggy style" but accepted the suggestion in cross-examination that this was not possible. [ 78 ] She said that after a minute or so D.H. entered the room and exclaimed "what the hell" and immediately came back out of the room. B.F. recalled that D.O. and D.H. were in the kitchen area with her.

[ 79 ] She said that M.F. and K.K. stopped, and M.F. got up and K.K. remained on the bed. No one else was in the bedroom at that point. Some males then went into the bedroom and B.F. went to the doorway and K.K. appeared to be asleep on the bed in the same position. She said K.K. remained asleep for five to ten minutes and then awoke, and B.F. interacted with her. She asked her if she was okay and gave her some water. She asked K.K. if she knew what she had been doing, and she said she did.

B.F. said she recalled that K.K. was up and consuming more liquor after having sexual intercourse with M.F. [ 80 ] In her statement she said that K.K. had passed out after the sexual intercourse and she did not speak to her for the rest of the night. She explained that meant she did not have a conversation with her. [ 81 ] B.F. was also a sincere witness who was attempting to provide the court with her honestly held recollection of events.

However, I find that she too has a bias against K.K. and that there are significant inconsistencies between her evidence and the evidence of the other witnesses. [ 82 ] Heather Dinn was qualified to give expert opinion evidence as a toxicologist. She testified that based on the drinking pattern and symptomology described by the witnesses, K.K. was likely at a blood alcohol level over 200 milligrams per 100 millilitres of blood, and would have been highly intoxicated.

She would expect a person at this level to experience some confusion of disorientation. [ 83 ] She also testified to the effects of morphine and the kinds of morphine tablets available. Morphine creates a sense of euphoria if taken by a person not in pain. It causes mental clouding and a lack of alertness.

She said that morphine does not come in a 9 milligram tablet and that there are immediate and sustained release forms in different doses. [ 84 ] Hypothetical scenarios were put to her based on the evidence of D.H. and T.P. and she agreed that if a person who is apparently asleep or unconscious did not respond to shaking or loud voices, this would be consistent with a state of sedation or a reduced state of consciousness. It would also be consistent with the effects of certain amounts of alcohol, or morphine, or both.

She said the only way to determine someone's level of consciousness is to determine how they react to external stimuli or their environment. She said it was not possible for a person to move in and out of a state of sedation to consciousness if the sedation is caused by a drug, as the drug must be eliminated from the body, and so the level of consciousness would be expected to gradually increase. [ 85 ] She said there were many variables involved in determining what effects a combination of alcohol and morphine would have.

In general, as they are both central nervous system depressants, they are contra-indicated and that they create an additive effect that can lead to dangerously low respiration. [ 86 ] She also testified that memory can be negatively affected by excessive use of either alcohol, morphine, or both. The lack of memory for events which occurred while under the influence of such substances does not indicate the lack of consciousness at the time, and it is impossible to tell whether someone will have a loss of memory by observing them when they are under the influence.

Findings of Fact [ 87 ] I have instructed myself that I may accept all, some, or none of a witness' testimony. I have also considered the evidence of the witnesses as a whole in my analysis of whether the Crown has met its burden of proof beyond a reasonable doubt.

There is no physical or external evidence to rely on to support any particular version. [ 88 ] I find that all of the witnesses were under the influence of substances, and this impacted their ability to accurately perceive and then later recollect the events of the evening. [ 89 ] D.H.'s evidence as a whole must be viewed with great caution, given his assertion that he was sober, which was contradicted by K.K., T.P. and B.F.

I find that of all the witnesses, other than the complainant, he was likely the most highly intoxicated by alcohol. [ 90 ] D.H., T.P and B.F. did not give statements for some considerable period of time after the events.

T.P. and B.F. each demonstrated a potential for bias against the accused and the complainant respectively. [ 91 ] I find that all of the witnesses had inconsistent recollections, some of their testimony is reconstructed memory, and they have unconsciously filled in or forgotten important details. [ 92 ] Neither D.H. nor T.P. saw what occurred after leaving K.K. and M.F. in the bedroom at a point where K.K. was conscious and engaged in consensual sexual contact with him.

B.F. is the only witness who can account for this period of time and she says K.K. was conscious and engaged in conduct from which it can be inferred she was aware she was engaging in sexual acts with M.F. and made a conscious choice to participate. [ 93 ] It is significant that none of the witnesses indicate there was more than one occasion where M.F. and K.K. were discovered or interrupted having intercourse.

Their evidence stands in contradiction each to the other about the material time and events, and I find it difficult to reconcile or to justify accepting one version over another, except as already noted with respect to D.H. [ 94 ] The evidence of T.P. as set out in her statement was that K.K. was immediately responsive to her questions and remained awake for some time.

Although unclear, the evidence of B.F. was also to the effect that K.K. remained conscious during the sexual intercourse, but then fell asleep and woke up shortly after, and in one version of her evidence continued drinking. [ 95 ] The opinion of the toxicologist, Ms.

Dinn, was that this evidence is inconsistent with a significant level of sedation by drugs. [ 96 ] I find I am unable to draw any conclusions about K.K.'s capacity to consent from the state of her clothing, the position she was in during the time they were engaged in sexual intercourse, or the position she was in on the bed and floor afterward. [ 97 ] The only evidence of the accused's state of mind with respect to K.K.'s capacity to consent is his statement as testified to by D.H. to the effect that she was "awake before this." I find I cannot rely on this piece of evidence as, even if it were reliable and accurate,

it is ambiguous and could be taken to mean that she had been awake until that moment, or awake until some other earlier point in time. [98] There are three different versions of the conduct of M.F. after the intercourse ended and I find I am not able to draw anyparticular inference from any of them. I am not able to conclude that having begun the act of intercourse in the position described with aconscious and willing partner, that the accused would have or should have known the moment K.K. fell asleep or passed out.

In thisregard I am mindful that it is not a defence that M.F. may have failed to appreciate her incapacity to consent as a result of his level ofintoxication. [99] In any event, I am unable to determine on all the evidence if or when she became unconscious or incapable of consent. The Law [100] I am indebted to counsel for the authorities they provided and argued before me. Their submissions were thorough and veryhelpful. [101] I have carefully reviewed the cases submitted and

Section 273.1 and 273.2 of the Criminal Code. [102] Ms. Lee, for the Crown, provided R. v. J.A [2011] S.C.C. 28; R. v. J.R. (ON SC), [2006] O.J. No. 2698; R. v.Siddiqui [2004] B.C.S.C. 1717; R. v. Ashlee 2006 ABCA 244; R. v. A.D. [2010] B.C.S.C. 1780; R. v. Saadatmandi 2008 BCSC 250, 2008 B.C.S.C. 250. [103] Mr. Chambers for the defence provided R. v. Ewanchuk (SCC), [1999] S.C.J. No. 10; R. v. Dennison 2002NSSC 222 and also relied on R. v. Siddiqui. [104] I do not need to review these authorities given my findings with respect to the facts.

Analysis [105] The Crown must prove both the actus reus and mens rea beyond a reasonable doubt. In this matter, there is no issue with respectto there having been touching of K.K. for a sexual purpose by M.F. [106] As to the subjective state of mind of K.K. I must consider all the circumstances to determine this issue as she was unable toprovide direct evidence of her state of mind at the relevant time. [107] I am unable to find as a fact beyond a reasonable doubt that K.K. did not have the capacity to consent to engage in intercourse atany time during the act of intercourse which occurred.

The evidence as a whole raises a reasonable doubt in my mind that she in fact lostconsciousness at any point or became incapacitated.

She was highly intoxicated and likely under the influence of morphine as well, butthe evidence does not establish that she was so intoxicated or sedated she could not or did not appreciate that she was going to engage in asexual act or continue with that act, or that she could choose not to participate. [108] I refer to the words of Bennett J. as she then was in Siddiqui (supra) at paragraph 55 in this regard: Therefore, the test is not one of automatism or even one of being unconscious or insensate, although all of those states would result inincapacity.

In order to be incapacitated, due to whatever reason, the complainant must be unable to understand the risks andconsequences associated with the activity that she or he is engaged in. The complainant must understand the sexual nature of the act andrealize that he or she could choose to decline to participate. [109] I need not go on to address the issue of mens rea.

It would only arise if I had found beyond a reasonable doubt that the Crownhad met its burden with respect to a lack of consent to the sexual contact. (See Siddiqui (supra) at paragraph 58). [110] I find on all the evidence the Crown has failed to prove beyond a reasonable doubt that the complainant did not consent to sexualintercourse with M.F. [111] Mr. F., if you will stand. I find you not guilty. (REASONS FOR JUDGMENT CONCLUDED)