R. v. R.N.M. Date:, 2011 BCPC 199

Citation: R. v. R.N.M. Date: 20110615 2011 BCPC 0199 File No: 55109-5-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON PUBLICATION PURSUANT TO S.517(1), 486.4(2) CCC REGINA v. R.N.M. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: M. Mahoney Counsel for the Defendant: N. Adams Place of Hearing: North Vancouver , B.C.

Date of Judgment: June 15, 2011 [ 1 ] THE COURT: The defendant, R.N.M., is charged with sexual assault and unlawful confinement of K.K. contrary to ss. 271 of the Criminal Code and 279(2) of the Criminal Code . [ 2 ] I will say at the outset the Crown has invited an acquittal on the offence of unlawful confinement, Count 2, and that will be dismissed.

He is also charged with several, what I characterize as, unrelated weapons offences not related to the primary allegations under Counts 1 and 2, and I will deal with those at the conclusion. [ 3 ] The issue in relation to the offence of sexual assault is whether the Crown has established beyond a reasonable doubt that the complainant did not consent to having sexual intercourse with the accused, and to some extent, as well, whether that actually occurred.

The issues in relation to the weapons offences are whether the items seized from the defendant meet the definition of "weapon" in the Criminal Code , and I will deal with the facts with respect to the events of the weekend, I will put it, of May 27th to 29th, 2010. Facts

[ 4 ] The complainant, K.K., whom I will call K. throughout because several K’s. testified, was 20 at the relevant time. She is young for her age according to her parents, W.J. and D.K., both of whom also testified. It was apparent from her testimony, as well as the entirety of the circumstances, that she was less sophisticated and mature then many young women her age. [ 5 ] Her mother said that K. has oppositional defiant disorder.

There were times in her testimony and, as well, I must observe in that of both of her parents when they became unnecessarily and remarkably defensive. [ 6 ] K. drank a large quantity of alcohol over the two days that encompassed the allegations. She admits to being a problem drinker. Her parents confirmed that she sometimes drinks to excess and exercises poor judgment when she does so. [ 7 ] On the eve of the offence date, May 26th, 2010, K. and a friend, R.S., went to the Mosquito Creek Bar in Westview Plaza, North Vancouver, after drinking for a time at his nearby residence.

When the bar closed, they accepted an invitation to go to the defendant's residence because he had a large bottle of vodka. [ 8 ] Neither knew Mr. M. particularly well, although K. had met him through her father. Another individual they had met at the bar identified as S.M., I think it was, went along. K. had met S. as a former boyfriend of her mother's. Mr. M. had also previously dated K.'s mother, but K. did not know this at the time. K.'s parents both estimated that Mr. M. would be about 45. [ 9 ] K. believed M. had said he had a 60-pounder of vodka and it appears this was the main attraction for her.

S. said he tried to convince her not to go, but then went with her out of concern. [ 10 ] K. recalled that M. had given S. a handgun to hold while they were in the cab on the way to M.'s residence, but Mr. S. later characterized this in his evidence as a toy. [ 11 ] There may or may not have been a bottle present when they arrived. K. recalled that there was not, but S. said there was a two- litre bottle and they drank it. [ 12 ] In any event, at some point in the next few hours, they ordered a delivery of two or three more 26-ounce bottles from an after- hours service.

K. gave S. her bank card and her PIN to go and get some cash for her so she could pay or contribute to the cost of the liquor. S. said he returned with the cash and K. told him to give it to M. He said he gave K. back her bank card and she put it in her purse. It was later found in the defendant's pocket with four receipts when he was arrested. [ 13 ] S. left M.'s residence after a few hours. K. recalled that M. had slapped him for talking too loud or too much, so he felt uncomfortable and left.

S. left sometime between 6:30 and 8:00 a.m. after returning with the cash. [ 14 ] S. said he believed the complainant was capable of taking care of herself when he left, though he regrets that decision now. He described her as drunk, but still awake and aware of her surroundings. He roused her by shaking her to tell her he was leaving and she told him that she was going to sleep for a while and leave later. When he left, M. was asleep on a recliner. [ 15 ] K. says she did not recall S. even returning from the bank and she has little memory of the events after that.

She does not deny that she elected to stay when S. left. [ 16 ] She said she recalled a conversation with her mother at some point during her time at the residence when she told her she was afraid because there were guns there. She said M. ripped the phone out of the wall so she could not talk anymore. She recalled that she was using M.'s land line and that her own cellphone had gone missing by that point.

She believed M. had hidden the land line after that, but agreed it appeared to be present in one of the police photos. [ 17 ] K. believed she had only talked to her mother once and that this call took place on Thursday. She had wanted to call her parents at other times, but said M. had prevented her, though he had spoken to them himself. [ 18 ] She recalled one time when he told her mother that he had sent her in a cab to her boyfriend's house, which was untrue because she was still there.

However, in cross-examination, she agreed she did not remember this and her mother had told her it happened. [ 19 ] Other things that K. remembered included working out or exercising with M. in the back yard. She asked him to give her an injection of what he represented to her as steroids, to assist with her workout. In fact, she may have injected it herself. [ 20 ] In relation to the allegation of sexual assault, K. was able only to say that at one point she awoke to find the defendant having intercourse with her.

She recalled saying no or trying to, but she was half asleep and drunk so she could not really do anything, she said. She denied that she consented to having intercourse. She said when she told him to stop, he did not stop. [ 21 ] She also said that at some point, M. told her they had had sex and that he wanted her to jerk him off all the time. She did not recall how the intercourse began or how it ended.

She then agreed that M. may have stopped when she said no, if she did so. [ 22 ] K. recalled that when the defendant was on top of her, she was wearing his long johns because he had peed on her while they were outside. It was apparent she had no real memory of that event. She said the defendant had told her he peed on her and that he liked doing that to people.

He told her he washed her clothes for her. [ 23 ] In cross-examination, she agreed that she did not recall what she was wearing when she awoke to find the defendant having sex with her and had been unable to tell the police whether she was on her back or her front at that time. She did not recall any other sexual acts, except the defendant trying to kiss her throughout the weekend, though she protested that she had a boyfriend.

She agreed she may have told the defendant she was on birth control and she agreed that they watched a lengthy video on relationships together. [ 24 ] When her mother had arrived to pick her up on Saturday, K. believed she was still wearing M.'s long johns. They had to look for her purse. The next day she had some messages from the defendant in which he was alternately angry saying, "Why would you do this?"

and telling her he loved her. [ 25 ] It was the complainant's evidence that she had wanted to leave the defendant's residence, but felt afraid to do so because M. had guns there and would not let her talk to anyone. Also, she was drunk and/or hung-over and just wanted to sleep. In cross-examination, K. agreed that her father may have told her that the defendant carried toy guns around. M. had showed her his collection of guns, but had never threatened to use one. She did not know they were toys, she said. [ 26 ] There was an unresolved issue about how much money Mr. S. may have taken from K.'s bank account.

He said he gave her back her bank card, but she did not recall that. In cross-examination, she recalled the defendant helping her to call the bank on Saturday morning when she learned that $400 had been taken out, or more. It is unclear what amount, in fact. [ 27 ] Mr. S. testified that he had only taken out $80 or $100 and given it to her with the card. He told the police he may have taken out $200, in fact. His evidence was not consistent on this point and he was unable to explain where some of the money had gone.

It appears this was never pursued with him by the bank, nor was there any attempt to investigate who had attended at the bank. [ 28 ] I will add, however, that it was clear from, at least initially, the way the allegations came out, that K. was under the impression Mr.

S. may have taken the bank card from her; stolen it and used it illicitly; and it was only later that it came out that she was simply unaware or did not remember the fact that he had given it back to her and that she had given him the PIN number to go and get some cash from the bank so that she could drink some more alcohol. [ 29 ] K. made several calls to her father during the weekend, though the timing of these is not pinned down. It is inconsistent, however, with the fact that she says she was unable to call people while she was confined in the residence of the accused. [ 30 ] She agreed that Mr.

M. may have woken her up at one point to get her to talk to the father and she said she just wanted to sleep and declined to talk. She also did talk to Mr. S. on Friday afternoon and told him she was going to go and get a tattoo; again, as pointed out by Ms. Adams in her able submissions, inconsistent with her assertion that she was unable to communicate with people or leave the residence. [ 31 ] The complainant also agreed in cross-examination that she may have fallen or stumbled while outside lifting weights and skipping rope with the defendant.

She also agreed she may have roughhoused with the defendant and tried to piggyback him, and that she probably fell at this point and that this may have been when he peed on her. [ 32 ] K. also recalled in cross-examination that on Friday evening at one point, police attended the residence - it may have been Saturday; it is really not clear but I suppose it would have been Friday - attended the residence because she had wandered into another tenant's suite and they called the police.

She hid from the police, she said, perhaps at the defendant's behest, and called her mother to tell her that she was scared because the police were there. [ 33 ] She said something about there being guns in his residence, but it seems her concern was that she might be arrested. In any event, she did not use this opportunity to make a complaint to the police that she was being held against her will at that point. [ 34 ] It was also established in cross-examination that K. went outside to smoke several times, accompanied by Mr. M. and that, at one point on Saturday, Mr.

M. actually went out and K. asked him to get her some smokes and more alcohol, which he did. She agreed she could have left then, but she just preferred to sleep. [ 35 ] She also said she wanted someone to pick her up and did not want to walk home as it was too far. Mr. M. did not have a car and she chose to wait until she could get a ride. She did not have any money for the bus. She did not feel she had access to a phone after Mr. M. pulled it out of the wall. She was not wearing her own clothes because they were in the wash. [ 36 ] Both of K.'s parents and Mr.

S. testified that at times K. does not remember things that she has done when she has been drinking. All agreed that these blackouts were different from situations when she had passed out, that she would appear awake, but not remember later what she did. K. herself agreed that she had blacked out and gotten herself into "predicaments." I think that was the word used by defence counsel, but she accepted it, on prior occasions when she had been drinking. [ 37 ] Dr. Gisele Comeau, who examined K., found she exhibited three vaginal tears. It was Dr.

Comeau's opinion that these wounds would be inconsistent with consensual sexual activity as they would have caused pain during intercourse. The doctor also documented extensive bruising that she believed to be consistent with a struggle and not with falling or exercising injuries. K. was unaware that she had any of these injuries until she was examined by the doctor, but said that the vaginal tears were painful after that for the next day or two. [ 38 ] K. did not want to complain to the police about the defendant's actions.

It is very clear from her testimony and the way in which the events unfolded, that that was the case. She testified reluctantly and she said she did not want to put anyone in jail and, on occasion, she smiled at the defendant. She agreed with the suggestion in cross-examination that when her mother arrived, she wanted to bring Mr. M. home with her. [ 39 ] She conceded that there were several times during the weekend that she could have left voluntarily, but she preferred to sleep, presumably due to her level of intoxication. It was established that Mr.

M. was trying to make plans to send her to someone's house in a cab or to the nearby residence of a friend of her mother's and that he had discussed this with K.'s father. [ 40 ] After her mother picked her up, they had a heated conversation. Mrs. K. was very angry about the situation, that she had to track K. down and that she had not come home for two days.

K. admitted to her only reluctantly that she had sexual relations with M. [ 41 ] She also falsely told her mother she was prevented from leaving and that the defendant had given her an injection against her will, or at least she acquiesced in those suggestions. She was aware that her mother knew the defendant and did not like him. She acquiesced in her mother's conclusion that she was held captive and drugged and raped by the defendant and acquiesced in her decision to

call the police. [ 42 ] Mrs. K. recalled that she had talked to K. at least twice, but she was somewhat uncertain as to the timing. She recalled that she had talked to her on Friday night when K. told her the police were there and she was scared. They got cut off and she called the number back. She was able to speak to the defendant after that, who told her K. was fine and had gone to her boyfriend's in a taxi. That is inconsistent with the phone having been yanked out of the wall at that particular point. [ 43 ] Mr. K. called Mrs.

K. on Saturday and expressed some concern because he had heard from K. and she sounded drunk. Mrs. K. recalled receiving a call from K. on Saturday morning about her bank card being lost. She told her that - that is, K. told her - M. had been helping her to talk to the bank about it. [ 44 ] After she heard from Mr. K., Mrs. K. tried to reach K. on her cellphone, but it was turned off or dead. In fact, when it was recovered, it was found to have been turned off, as I recall the evidence. She tracked down the boyfriend; that is, Mrs.

K. tracked down K.'s boyfriend, and learned that he was not with K. [ 45 ] She called and spoke again with the defendant; she was able to do so. He admitted that he had lied about that, said that K. was fine, that she was asleep and that he was taking good care of her. At some point, as she recalled it, he had promised to get her home by 6:00 p.m., but a tape of the voicemail he left on her phone indicates he may have said 7:00. [ 46 ] She also recalled talking to K. who gave her some approximate directions.

She went to where she thought she was, but did not find her waiting outside and went to talk to her husband in the bar to see if she could pinpoint the address. Mrs. K. got a better description of where the defendant lived and went there. She found K. sitting in a chair. She did not know where her purse was, but the defendant produced it out of a cupboard. Mrs. K. and K. left. Mrs. K. did not recall K. wanting to bring the defendant with her and laughed when this was suggested to her. [ 47 ] On the way home, Mrs. K. grilled K. about what occurred and K. ultimately told her she had been raped and held captive.

Mrs. K. called the police. When they arrived, in her mother's presence, K. told them she had been physically confined by the defendant. [ 48 ] Mrs. K. had several phone calls and voicemail messages from Mr. M. after the incident. She agreed she had called him and accused him of sexually assaulting her daughter and that she was angry. [ 49 ] Mr. M. called her back and said things like he would never hurt either of them, they were both beautiful, and asked for dates and that sort of thing. Mrs. K. said she did not pay much attention to what he said on these calls and I agree with Mr.

Mahoney's able characterization of them as drunken ramblings in both those and the calls to the father. It came out in evidence that Mrs. K. had dated Mr. M. several years earlier. She thought he was odd and commented that he had showed up unannounced at her house once with flowers as if to imply he was stalking her. [ 50 ] In cross-examination, she agreed that she had asked him to help her move after that and he had done so and she did not deny the suggestion that she may have asked him over for dinner.

She denied it was a date or that that was when he brought the flowers, but I noted that her daughter was sitting in court throughout this portion of her testimony. [ 51 ] Mr. K. said he had talked to Mr. M. about six times while K. was with him. He had talked to K. several times, as well, he said. In the first call, K. told him she was with M., whom he knew as R., and S. and R.S. They were in a cab going to R.'s house to drink because he had a 40-pounder of liquor, she had told her father. [ 52 ] Mr. K. was a bit uncomfortable with that, but she was with friends, he thought.

He thought this call was around 6:30 on Friday, but it is clear it must have been early on Friday morning. [ 53 ] He was a little annoyed by the first call and told her he would talk to her when she was sober. K. called him a few more times about losing her wallet or bank card, someone taking money from her account, and losing her phone. Mr. K. told her he was annoyed that she was with M. because he thought he had a screw loose. [ 54 ] In the various conversations with the defendant, Mr. K. recalled that Mr. M. had told him he peed on K. They had been lifting weights in the garage.

He injected her and she was okay with that. He was washing her clothes and she was sleeping. Mr. K. found this all rather odd. [ 55 ] Mr. M. also left some messages on Mr. K.'s phone, as I have mentioned, which he had offered to the police, but they never came back to get them. Mr. K. agreed in cross-examination that M. had also asked permission to date K. and said he was in love with her. He denied that he ever told K. that M. carried toy guns. Nothing really turns on that. [ 56 ] In his evidence, Constable Yuzyk said he wrote incorrectly in his notes that K. had said she could leave at any time.

He should have written that K. felt psychologically unable to leave. He explained this by saying he did not know the elements of unlawful confinement at the time and was relatively new to the police force. [ 57 ] He also admitted that he had written in his notes that the doctor reported to him K. had trauma to her vagina and anus. The doctor in her testimony denied that she had observed any trauma to the anus. Constable Yuzyk made his note of his conversation with the doctor many hours after he talked to her.

He had no note of bruising and did not recall that K. had complained of any injuries. [ 58 ] Yuzyk prepared an Information to Obtain a Search Warrant and M.'s residence was searched on May 30th. The warrant specified a search between 8:00 and 9:00, but the officers did not enter until after 10:00. The warrant provided for a search for her cellphone, long johns, residence documents, and a syringe, but not guns, alcohol, bottles, or a land line telephone. [ 59 ] Yuzyk found K.'s cellphone in a cosmetic-type bag in the bathroom. A pair of long johns was also apparently seized.

Neither of these were subjected to any forensic examination. Constable Yuzyk observed some empty alcohol bottles in the residence, but did not

seize them. They were photographed incidentally, but not examined or noted by anyone. K. said that Constable Stewart told her the police had found syringes and were going to analyze them, but the Crown led no evidence of this. Forensic Evidence [ 60 ] Dealing, then, with the aspect of forensic and/or supportive evidence, I have to say the police did not adequately investigate this complaint. As I have noted, the officers who attended Mr. M.'s house did not look for evidence of alcohol consumption or check the status of the telephone. If they found syringes, we have not heard about it. While they found Ms.

K.'s phone, K.'s, they returned it to her mother without investigating any of the calls that were made or messages left on it. [ 61 ] They seized a considerable number of replica or toy guns that the defendant had in socks under his bed and various other locations in the residence. These were not particularly relevant to the offence, although guns did figure in the complaint -- or a call from K. to her mother, I note. They photographed these items and the inside of the residence, but not the backyard or weight-lifting equipment. [ 62 ] The rape kit sent in by Dr. Comeau appears to have never been followed up.

There are no photographs of the extensive bruising the doctor says she observed. The long johns were never sent for examination, as I have noted. Mr. K.'s voicemails were never recovered. [ 63 ] At least two of the witnesses' statements were not transcribed which meant several hours of court time were spent or lost so that recordings could be either reviewed or played in court. It was very difficult for the purposes of cross-examination which generally requires a witness to be directed to a passage in their written statement.

These passages could not be isolated efficiently in the electronic media that were available. [ 64 ] Unfortunately, these failings are not unique to this particular investigation. It seems that more and more frequently transcripts are not provided; forensic evidence is not followed up; follow-up inquiries are not performed; witnesses are not interviewed; crime scenes and exhibits are not photographed. Perhaps there is a personnel issue. Often, it seems there are shift changes and investigations are not effectively passed on to the next team.

Corporal Truesdale accepted some responsibility for not having the cellphone examined, but provided no explanation for this. [ 65 ] The bottom line is there was no forensic evidence of any value in this investigation except the examination of the doctor. It does not matter why, because the court has no business filling in gaps caused by inadequate resourcing. As noted by the Crown in one case I dealt with recently, a prosecution cannot consist of one person fixing a number of other people's mistakes.

The burden of proof is beyond a reasonable doubt and that entails a measure of professionalism and diligence that is often lacking in this jurisdiction, in my view. Unlawful Confinement [ 66 ] Turning to the issue of unlawful confinement, as noted by Mr. Mahoney, he has not invited a conviction on that charge. The evidence is clearly insufficient to establish that the complainant was held hostage by the defendant. She went there voluntarily to consume alcohol.

She had many opportunities to leave and she never took any of the available opportunities to complain to her parents or others that she needed help. [ 67 ] It appears she stayed out of a combination of lethargy and a desire to continue drinking. It also appears she enjoyed spending time with the defendant and wanted to continue doing so. At least the Crown has not negated this conclusion. The charge of unlawful confinement clearly is not made out and was already dismissed. Credibility and Consent [ 68 ] I am not going to go through the submissions of counsel.

I will say the end result is that I am persuaded by the able submissions of Ms. Adams with respect to many of the characterizations of the evidence of the complainant and the case in general. A lot of the points that she has made, I will not mention in my conclusions, but suffice it to say, I have taken them into account and they have been persuasive. [ 69 ] So, as I have noted, in this case, there is an absence of forensic evidence apart from that of the doctor. That leaves the complainant essentially on her own in relation to her assertions that there was sexual activity and that she did not consent to it.

Her memory was obviously deficient in many respects and her behaviour raises issues in relation to whether she decided to voluntarily spend time with the defendant. [ 70 ] The first issue is whether it has been established that there was sexual intercourse. This depends on the complainant's assertion, which is supported by the vaginal tears observed by the doctor.

The defendant's voicemails to the mother did not include a denial that he had sex with the complainant. [ 71 ] While there are problems with the reliability of the complainant's evidence in many respects, the totality of the circumstances do, in my view, support her assertion in this particular respect, that she and the accused likely had intercourse. There is no evidence that would be inconsistent with that assertion that has been led, and so I do find that that act occurred. [ 72 ] The next issue is whether it has been established that K. did not consent to have sex with the defendant. The case depends upon

the reliability of her denial of consent. It also raises the issue to some extent of whether she was capable of consenting and whether the defendant can be said to have taken adequate steps to ascertain that she was. That would turn on whether I was in a position to accept the fact that she says she did not consent, and I will turn to the case law for a moment. [ 73 ] The Supreme Court of Canada has recently confirmed its earlier decision in R. v. Ewanchuk relating to the nature of consent in R. v. J.A.

In J.A. , Chief Justice McLachlin reiterated the difference between the existence of consent which relates to the actus reus of sexual assault and the defence of mistaken belief in consent which relates to the mens rea . She said at paragraph 37: The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be conscious throughout the sexual activity. Before considering these provisions, however, it is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea ...

She refers to Ewanchuk , paragraphs 48 to 49. [ 74 ] Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established. [ 75 ] In relation to the actus reus , then, in this case, the issue is whether the complainant subjectively consented, not whether she communicated consent.

Her lack of memory and apparent voluntary association with the defendant are not determinative on this issue. [ 76 ] Moreover, on a careful analysis or consideration of Ewanchuk , K.'s assertion after the fact that she would not have consented to intercourse, if that assertion were accepted, would be sufficient in the absence of contradictory evidence that she did, in fact, consent to have intercourse with the defendant.

The law comes fairly close to the point where it is sufficient for a complainant to simply come and say she did not consent and to place or move the onus somewhat away from the Crown in those certain circumstances. [ 77 ] On a close consideration of the evidence in this case, however, I am mindful, firstly, that K.'s failure to leave may be consistent with no more than a state of drunken acquiescence and inertia. That does not equate to consent. [ 78 ] However, as pointed out by Ms.

Adams in her thorough submissions, K.'s assertion that she did not consent must be considered in the context of: the way in which the complaint came out; some false allegations that were made at the outset with respect to the bank card, and, in fact, the whole idea of being confined; and her mother's obvious influence on her. [ 79 ] In particular, K.'s denial of consent regarding other actions about which she complained must be considered in light of the fact that she later admits she had consented to these particular actions. These include the giving of the bank card to Mr.

S., the injection, and in particular, the allegation that she was held captive. [ 80 ] Once reminded, or confronted, with other inconsistent evidence, she resiled from her acquiescence in her mother's characterization of the events as her having been drugged, held captive, and raped, the former of those two allegations being false. [ 81 ] There is one other particularly telling piece of evidence and that is K.'s admission that when her mother came to get her, she may have wanted to bring the defendant with her.

And clearly, at least, she was reluctant to leave at that point. [ 82 ] While some of the surrounding factors, notably, the age disparity, her obvious overconsumption of alcohol, and the lack of any prior relationship between the complainant and the defendant, may be said to support an absence of consent, those are overcome to some extent by her apparent continued desire to be with the defendant throughout the weekend and after the act about which she complains. [ 83 ] I consider that as well in light of her admission in cross-examination about roughhousing with the defendant, which discloses a level of consensual physical intimacy with him during the weekend, including her tackling him and trying to piggyback him. [ 84 ] The test in relation to the actus reus under the Ewanchuk and J.A. analysis of s. 273.1 of the Criminal Code is whether the complainant voluntarily agreed to engage in the sexual activity in question. [ 85 ] I would turn to the issue of whether she was capable of consenting, but, in my view, I have to look at two things. [ 86 ] Firstly, I will consider the evidence of the vaginal tears as described by the doctor.

They do, the doctor said, support a lack of consent. The fact that the complainant apparently did not perceive them until after her examination may be said to support a conclusion that she was too drunk to protest at the time they occurred. [ 87 ] However, as pointed out by Ms. Adams, we have no evidence as to when they occurred or what apparent state the complainant was in at that time.

She said they hurt after she was told they were there, but even when she left, when she was clearly conscious, presumably, it has not been shown other than that she was aware of the fact that there had been intercourse prior to that and she was still apparently wanting to spend time with the defendant. She appears then at that point not to have been aware that they were there. [ 88 ] There is evidence, also, from her parents and Mr. S. that she on occasion appeared to be conscious, but later had no memory of her actions.

I am mindful that that is quite different from an actual finding without evidence that she consented to have sex with the defendant and now just does not remember that. The evidence may support a finding that she acquiesced because of her inability to resist. However, her later behaviour is not consistent with an absence of consent, in my view. [ 89 ] The issue of whether she had the capacity to consent in this particular case therefore does not arise because in light of the evidence of the complainant as I have reviewed it, I find that her assertion that she did not consent is not reliable.

There is, as pointed out by Ms. Adams, no suggestion on the evidence that at the particular time when she became aware of the act that she was apparently

unconscious, and her evidence is that she was conscious at that particular time. [ 90 ] I should clarify that. She says she came to and realized that this event was occurring, but I find her evidence with respect to the entirety of that particular circumstance to be unreliable in the context of all of what she has said about what happened on the weekend.

I am mindful of the fact that her mother's persuasion may well have coloured the way in which she later viewed the action that occurred between them such that she later asserted that there was a lack of consent, but may have appeared to have been consenting, walking and talking and verbalizing at the time when it occurred. [ 91 ] So dealing only with the actus reus at this point, I do find the Crown has not established beyond a reasonable doubt that the complainant did not voluntarily consent to have sexual relations with the accused in all of the circumstances.

Because of the problems with her reliability, the many inconsistencies, possibility of influence, and the other issues raised by Ms. Adams in her submissions, I find it would be dangerous to convict the defendant based solely on the complainant's denial in this case. Belief in Consent [ 92 ] I will just turn, out of an abundance of caution, to the issue of mens rea . As pointed out in the case law, the defendant must have believed that the complainant communicated her consent to rely on this defence.

There is no evidence here to support the defence of belief in consent and I do not believe it is open to the defendant to argue it. The voicemail is not admissible, in my view, as evidence for the defence in the case. The Weapons Offences [ 93 ] As for the weapons offences, I have no expert testimony as to any of the items being designed for use as a weapon. The offence of carrying a concealed weapon - which is what is left at this point because Mr.

Mahoney is not seeking convictions on the dangerous purpose counts - the offence of carrying a concealed weapon requires proof that the item was used or intended to be used as a weapon. There is nothing in the circumstances, apart from their mere presence, that permits that conclusion. [ 94 ] As for common sense, the item with the "brass knuckles" is clearly some kind of knife. However, carrying a knife concealed without more does not support a conviction under the section, in my view.

The Crown has also invited an acquittal on the prohibited weapons offence which is Count 9. [ 95 ] I, therefore, find the accused not guilty on all counts. [ 96 ] MR. MAHONEY: I just -- to avoid further complications, since brass knuckles are a prohibited weapon in the Regulations, I take it Your Honour is not finding that they were, in fact, brass knuckles. That is a descriptive term you are using? [ 97 ] THE COURT: A knife with metal knuckles. [ 98 ] MR. MAHONEY: Thank you. [ 99 ] THE COURT: All right, well, I did not hear your submissions on that. Do you want to make them? [ 100 ] MR.

MAHONEY: No, I am just -- if you are not -- I am not -- I am not disagreeing with your finding. I am just saying for clarification, just so there is no future problems, brass knuckles are specifically described as a prohibited weapon. If they are metal knuckles and you are not finding they are brass knuckles, then that is, I think, just – [ 101 ] THE COURT: Right, well, again – [ 102 ] MR. MAHONEY: -- clarification if you were asked for it in reasons. [ 103 ] THE COURT: -- I fall back on my indication that without expert testimony as to what the item was in practice – [ 104 ] MR.

MAHONEY: Sure. [ 105 ] THE COURT: -- that it has not been established to be a prohibited weapon, therefore, not a weapon. [REASONS FOR JUDGMENT CONCLUDED]