R. v. J.R.B., 2021 BCPC 242

Citation: R. v. J.R.B. 2021 BCPC 242 Date: 20211006 File No: 67407-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. J. R. B. Ban on Publication: A publication ban has been mandatorily imposed pursuant to ss. 486.4 & 486.5 of the Criminal Code restricting publication, broadcasting or transmission in any way or evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.

CHALLENGER Counsel for the Crown: Jay Fogel and Katherine Fast Counsel for the Defendant: William Smart, Q.C. and Nicole Gilewicz Place of Hearing: North Vancouver , B.C. Dates of Hearing: June 1-3 and 30, 2021

Date of Judgment: October 6, 2021 [ 1 ] J. R. B. (JRB) is charged with one count of sexual assault contrary to s. 271 of the Criminal Code . The offence is alleged to have occurred in the early morning hours of July 15 th 2019 in [omitted for publication]. INTRODUCTION [ 2 ] The complainant and the accused are both officers with the [omitted for publication]. The complainant appears to be in her mid- 30’s. She is married and has children. The accused is 55. He is married and has children.

There are no factors in their personal circumstances which impact their credibility or reliability. [ 3 ] The alleged offence occurred when they were socializing at [omitted for publication] the night before a charity golf tournament. The complainant and the accused ended up sharing a fold out couch in the living room of the suite where the accused was staying. She had intended to stay in a different suite. The complainant says she was unconscious and awoke to find the accused performing cunnilingus.

The accused says the complainant was conscious and willingly engaged in sexual conduct with him. [ 4 ] The complainant made a complaint several days after the incident and was interviewed in the normal course. As part of the investigation by the RCMP into the alleged offence, the complainant agreed to participate in a covert operation as a police agent. She met with the accused on two occasions in early September to discuss what happened between them and those conversations were video and audio recorded.

The accused was interviewed and prepared a statement after the Information was sworn but before disclosure had been provided. ISSUES [ 5 ] The central issue for resolution revolves around the assessment of the credibility and reliability of the testimony of the complainant and the accused to determine whether the Crown has proven beyond a reasonable doubt that the complainant did not voluntarily consent to the sexual conduct which occurred. THE APPLICABLE LAW [ 6 ] In R. v. Bertaco 2020 BCSC 1275 at paragraphs 54 to 61 , the Court provided a helpful

summary of the leading cases with respect to the law of sexual assault which I have considered. In R. v. Stewart 2021 BCPC 111 at paragraphs 16 to 32 , the Court set out a very succinct

summary as follows: Offence of Sexual Assault: s. 265 , s. 273.1 and s. 273.2 of the Criminal Code [16] The Criminal Code of Canada sets out the applicable legal principles on the law of assault, and sexual assault, in s. 265, s. 273.1 and s. 273.2 of the Code . [17] Sexual assault is an assault, as defined under s. 265 of the Criminal Code , which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. [18] Consent for the purposes of the law of sexual assault is set out in s. 273.1 and s. 273.2 of the Criminal Code . Consent is the voluntary agreement of the complainant to engage in the sexual activity in question. Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271 , 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [19]

Section 273.2 provides as follows: 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(

a) the accused's belief arose from the accused's . . . (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting, or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. Actus Reus and Mens Rea [20] A person commits sexual assault if they touch another person in a sexual way without their consent. In R. v. Ewanchuk , 1999 SCR 330 and R. v. Barton , 2019 SCC 33 , the Supreme Court of Canada has given guidance to trial judges on the

interpretation and application of the sexual assault statutory provisions. [21] The actus reus of sexual assault comprises of proof of three elements: (1) physical contact or touching; (2) the sexual nature of the contact; and (3) the absence of consent. [22] Consent, for the purpose of the actus reus , relates to the presence or absence of agreement to the touching in the mind of the person touched.

Whether or not the complainant subjectively consented in their mind to the sexual activity, at the time it occurred, is a question of fact to be determined from the complainant’s evidence and from other evidence of the “complainant’s words or actions, before and during the incident”. Whether the complainant’s words or actions are consistent with their claim of non-consent is a question of credibility, to be weighed in light of all the evidence: Ewanchuk, at paras. 29-30. [23] Affirmatively communicated consent must be given for each and every sexual act: Barton , at paras. 90-94 .

As noted by the Supreme Court of Canada in R v Goldfinch, 2019 SCC 38 , at para. 44 : “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.” This statement confirms that there is no such thing as implied consent under the law of sexual assault. [24] If the complainant testifies that she did not consent, and that evidence is accepted, then there was no consent. The Crown has discharged its burden to prove the absence of consent as an element of the actus reus .

The complainant need not have expressed that lack of consent, or revocation of consent, at the time when the sexual activity took place. [25] The mens rea of the offence comprises of proof that: (1) accused intended to touch the complainant; and (2) the accused knew the complainant was not consenting, or was reckless of or wilfully blind to the lack of consent on the part of the complainant. [26] For the purposes of the mens rea , and specifically for the defence of honest but mistaken belief in communicated consent, the focus shifts to the state of mind of the accused.

In this context, “consent” means that the complainant has affirmatively communicated, by words or conduct, her agreement to engage in the sexual activity in question with the accused.

Honest but Mistaken Belief in Communicated Consent [27] Where an accused raises an honest but mistaken belief in communicated consent, they are asserting a claim of moral innocence based on their belief that the complainant was consenting to the sexual touching: Ewanchuk, at para. 46. [28] A bare assertion of belief that the complainant was consenting is not sufficient without some evidence to support it. [29] There are important limitations to this defence: (

a) one cannot rely on a belief in implied consent; (

b) a belief that “silence, passivity or ambiguous conduct” constitutes consent is no defence; (

c) a belief that the complainant in their own mind wanted the accused to touch them but did not express that desire is not a defence: Ewanchuk , at para. 46; Barton at para. 98 . [30] As noted in Barton , s. 273.2(

b) of the Criminal Code bars an accused from advancing an honest but mistaken belief in communicated consent where the accused did not take reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting: 104

Section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time....Notably, however, s.

273.2(

b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief inlegal age imposed under s. 150.1(4) of the Code … [citations omitted]. [31] In

summary, in considering this defence, as per R. v. Barton at paras. 121-123:

(1) The Crown bears the burden to show beyond a reasonable doubt that the accused failed to take any steps, or any reasonable stepsin the circumstances known to him at the time, to ascertain that the complainant was consenting.

(2) Where the Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, the trial judge mustgo on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest butmistaken belief in communicated consent.

(3) If the Crown fails to disprove the defence of honest but mistaken belief in communicated consent beyond a reasonable doubt, theaccused is entitled to an acquittal. [32] The Crown bears the ultimate burden on the issue of mens rea to show beyond a reasonable doubt that the accused knew thecomplainant was not consenting, or he was reckless of or wilfully blind to the complainant’s lack of consent. [7] The accused is presumed innocent and the onus of proof remains on the Crown to prove guilt beyond a reasonable doubt. Areasonable doubt can arise on both the evidence and the absence of evidence.

This onus falls much closer to absolute certainty than to thebalance of probabilities. Something less than absolute certainty is required and something more than probable guilt is required: R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. [8] In R. v.

Park (SCC), 1995 2 SCR 836 at paragraph 25, the Court addressed the approach to be taken wherethere are issues of credibility and a defence of honest but mistaken belief in communicated consent is not advanced: Secondly, the fact that stories are diametrically opposed, as well as the degree to which they are opposed, is but one factor in the air ofreality determination. Instances in which stories are diametrically opposed and where there is no air of reality are, in fact, specificapplications of the air of reality threshold. They are not intrinsic to the test, itself.

The question is not whether two stories are sodiametrically opposed that there can be no air of reality to the defence of mistaken belief in consent. This approach ignores the presenceof other factors, such as corroborative evidence, which may nonetheless justify putting the defence of honest mistake to the jury (seeBulmer, supra). Rather, we must bear in mind that neither the version of the facts given by the complainant nor that given by the accusedis necessarily a full and complete account of what actually took place and, as such, a jury may decide not to believe certain parts of eachperson's testimony.

Thus, the question is whether, in the absence of other evidence lending an air of reality to the defence of honestmistake, a reasonable jury could cobble together some of the complainant's evidence and some of the accused's evidence to produce asufficient basis for such a defence. Would the acceptance of one version necessarily involve the rejection of the other?

Put another way,is it realistically possible for a properly instructed jury, acting judiciously, to splice some of each person's evidence with respect to theencounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence ofmistaken belief in consent? If the stories cannot realistically be spliced in such a manner, then the issue really is purely one of credibility-- of consent or no consent -- and the defence of mistaken belief in consent should not be put to the jury. (emphasis added). [9] In R. v.

C.H.W. , our Court of Appeal considered the seminal case of R. v. W. (D.), [1991] SCR 742 regardinginstructions to triers of fact with respect to reasonable doubt and added a fourth consideration: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Fourthly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [10] In R. v. Mann 2021 ONCA 103 at paragraph 15, the Court set out a

summary of some of the sources of reasonable doubt: First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arisefrom the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, atpara. 36. Moreover, an inference need not arise from "proven facts", which is "a standard that is never applicable to an accused": R. v. Robert(2000), (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.).

This is because a reference to "proven facts" suggestsan obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to betrue to any standard of proof, has not been rejected. It is also incorrect to link a reasonable doubt to a "conclusion" drawn from the facts. An acquittal need not be based on a conclusionabout innocence but can rest on an inability to conclude guilt. It is also an error to suggest that an exculpatory inference must be "a much stronger conclusion" than a speculation or guess.

Thatlanguage imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence needmerely raise a reasonable doubt: Villaroman, at para. 20. [11] In R. v. Bachman 2013 BCSC 1028, the Court addressed the assessment of reasonable doubt in case such as this: [78] Sympathy for the complainant cannot be a basis for establishing guilt. Reasonable doubt must connect logically to the evidence,

based on reason and on common sense. A reasonable doubt cannot be frivolous or unduly speculative. The burden of proof the Crowncarries applies to the evidence as a whole, not to individual items of evidence. [79] In the range of levels of doubt that lie between probable guilt and absolute certainty of guilt, reasonable doubt lies much closer toabsolute certainty of guilt than it does to probable guilt. Therefore, if I were to conclude after considering all the evidence in its totalityonly that Mr.

Bachman is more likely than not guilty of these charges, I must find him not guilty. [80] I said at the start that Ms. B.'s credibility as a witness, especially the reliability of her testimony, is a central issue in this case.Deciding upon a witness's credibility involves more than coming to a decision on whether a witness is trying to be honest and notdeliberately deceitful. Even if satisfied that a witness is doing their best to be honest, the factual content of their evidence has to be testedto see if it is reliable.

Once satisfied that the witness is trying to be truthful and that their account is reliable, a judge can safely conclude that their evidence is credible. [McWilliams' Canadian Criminal Evidence, vol. 2, 4th ed., loose-leaf (updated June 2012), (Aurora:Canada Law Book) at 27:10.] [81] As Justice Estey explained in R. v. White, (SCC), [1947] S.C.R. 268, credibility is a question of fact; it is notbased on a set of rules. Justice Estey said, slightly altered for neutral language: ... It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.

The generalintegrity and intelligence of the witness, [their] powers to observe, [their] capacity to remember and [their] accuracy in statement areimportant. It is also important to determine whether [they] are honestly endeavouring to tell the truth, whether [they] are sincere andfrank or whether [they] are biased, reticent and evasive. All these questions and others must be answered from the observation of thewitness's general conduct and demeanour in determining the question of credibility. [82] A witness's demeanour is relevant, but credibility does not rest on demeanour alone.

Nor does a witness's expressions ofconfidence in their belief about their testimony strengthen it, especially when its reliability is questionable. The totality of all theevidence must be examined in a cumulative way to determine if a witness's evidence is reliable and whether there is a reasonable doubt,notwithstanding the apparent credibility of the victim. An assessment of credibility turns on a broader assessment of the witness'stestimony, whether it is consistent, whether it makes sense or is inherently hard to credit and how it ties in to all the evidence in the case. [12] In R. v.

G. (M.) , the Ontario Court of Appeal discussed the need to consider the internal and externalinconsistencies in the evidence of a witness: [27] Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between whatthe witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons.

But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [28] The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for theBritish Columbia Court of Appeal in R. v.

B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260: Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility andreliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between thecomplainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This isparticularly so when there is no supporting evidence on the central issue, which was the case here. [13] In R. v.

J.J.R.D., (ON CA), [2006] O.J. No. 4749, the Court was dealing with circumstances similar to thismatter in which a complainant and an accused had testified and both had provided evidence which could reasonably be true. However,the trial judge rejected the evidence of the accused based on the contents of a diary kept by the complainant which, when consideredtogether with her evidence, led to the rejection of the accused’s evidence. [14] More recently our Court of Appeal addressed this issue in R. v.

Redden 2021 BCCA 230: [80] In deciding whether he believed the appellant, or, even if he did not believe him, whether the appellant’s evidence raised areasonable doubt, the judge was entitled (and indeed obliged) to consider the appellant’s testimony in the context of the other evidencebefore him. [81] A court does not assess the evidence of an accused in isolation: R. v. Wanihadie, 2019 ABCA 402 at para. 31.

As a result, therewill be cases where a denial, defences that rely heavily on the testimony of the accused, or hypothesized inferences are rejected outright“based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: R. v. D. (J.J.R.)(2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53, leave to appeal ref’d, [2007] S.C.C.A. No. 69. Thisdoes not mean that the trial judge has erroneously chosen between competing narratives, simply preferring one to the other. To do sowould constitute reversible error.

Rather, it represents a finding that the testimony of the accused cannot stand in light of the cogency ofthe other evidence. [15] In R. v. Kishayinew 2017 SKQB 177 at paragraphs 78 and 79, the Court discussed the issue of memory black outs: [78] That L.S. blacked out at some point during the sexual activity and has little or no memory of the same, is not, in and of itself,

enough to support a conviction. The evidentiary effect of alcohol induced amnesia, or a “blackout” has been considered in other cases.Justice Ducharme explained the import of lack of memory as follows in R v J.R. (2006), (ON SC), 40 CR (6th) 97(Ont Sup Ct) at para 18: [18] ...Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannottestify as to what happened during a particular period. Indeed, Ms.

Martin the toxicologist called by the Crown described a blackout as,“a complete loss of memory for a portion of time during a drinking episode.” In a sexual assault case this is particularly unfortunatesince, as was noted in R. v. Esau (1997), (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), ‘[t] he parties testimony isusually the most important evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assaultcase involving a complainant with no memory of the relevant time.

In Esau at 297, Justice Major said of the complainant's memory loss,“[a]ny number of things may have happened during the period in which she had no memory.” Thus, the only significance of memoryloss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact orwhether or not she had the capacity to do so. [Emphasis mine] [79] Of course, the absence of evidence of consent or lack thereof due to the impact of alcohol on a complainant’s memory is notnecessarily fatal to the prosecution – especially where, as here, the Crown has presented other significant evidence, including L.S.’stestimony of her attempts to get away from Mr.

Kishayinew and her expressed rejection of his attempts to engage her in sexual activity.As Justice Ducharme concluded in R v J.R. at paragraph 20: [20] This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probativevalue.

It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawnabout whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. … [16] I must not base my verdict on whether I believe the defence evidence or the Crown’s evidence. The issue is whether on the wholeof the evidence, I am left with a reasonable doubt as to the guilt of the accused. I must not assume the complainant’s testimony is truewhen weighing the accused’s credibility.

Nor can I reject exculpatory evidence merely because I believe the complainant. I must be ableto articulate reasons to disbelieve any exculpatory evidence. Even if I do not believe any exculpatory evidence, I must nonethelessconsider whether it or the whole of the evidence has raised a reasonable doubt in my mind. BACKGROUND EVIDENCE [17] The timeline of most of the events of the evening of the 14th and early morning of the 15th was established through Admissionsof Fact which contained CCTV footage and stills.

These depict those staying in the two suites involved coming and going inside andoutside two different but nearby hotels and a bar in one of those hotels (the bar). There are also receipts from an outside restaurant andtwo from the bar. [18] The Crown called three other colleagues who were with the accused and complainant during the evening. The Admissions ofFact also set out the recollections of two colleagues as to events in B’s suite. Undisputed Facts [19] The complainant was invited to [omitted for publication] by a friend and colleague, B, who was staying in one of the suites (B’shotel/suite).

She was told she would be able to sleep in a spare bed in his suite if she was unable to drive home. The invitation was made the day before. On Sunday the 14th, B and the complainant met up as B’s group passed through [omitted for publication] where she lives. [20] The accused and another group of colleagues were staying in a suite in the other hotel (the accused’s hotel/suite). They connectedonce they were all in the Village. The accused and the complainant were not known to each other. [21] Both groups arrived separately and began to socialize and drink in their rooms or in bars.

They all gathered in B’s suite at around18:30. The complainant arrived at B’s suite at 19:45. [22] One of the colleagues who was not part of either group was at the suite until 23:00. He saw the complainant have a shot ofalcohol and some drinks. She told him she vomits when she drinks and said “I don’t wanna throw up, but I might be on my way to that.” [23] The accused and his group left to go out for dinner just after 20:00 and returned around 22:50. Those who remained orderedpizza. The two groups stayed in B’s suite until around 00:30 when they went to the bar in the hotel.

Four double shots were ordered.They decided to go out to a night club and went into the village but could not get in and returned to the bar. B was by then visiblyintoxicated. [24] At just before 01:00 fourteen drinks were ordered in the bar being ten double shots, two single shots and two beer. The accusedsaid he bought the drinks for one colleague’s birthday. The complainant said, “Drink! I just got a second round for you guys. You betterdrink it.” [25] Shortly after the drinks were served, B vomited at the table. He was escorted up to his room by the accused.

The complainantgave a key card to B’s suite to the accused which he gave back to her after he returned. The server in the bar was upset and those still inthe bar decided to leave. Two or three drinks were left unconsumed on the table. The server observed those at the table to be under theinfluence but no one appeared to be overly intoxicated. [26] The complainant, the accused and two others returned to the accused’s suite. One other colleague was already in a bedroomsleeping. Once there, more drinks were poured and consumed. At some point the two others went to bed in the bedrooms.

Thecomplainant and accused stayed up talking in the living room until the accused opened the fold out couch and they went to sleep. [27] The complainant and B were texting between 01:36 and 02:10. B initiated the texts by asking where the complainant was. Shetold him where she was and that she would have to stay in his room as she couldn’t drive. Her last text was “We’re having a bevy”.

[ 28 ] The complainant left the accused’s hotel at 04:08 and is seen wandering by outside the front doors at 04:16. She arrived at B’s hotel at 04:18 and went into the elevator. She had left her wallet, car keys and jacket in B’s suite. She returned to the front desk to get a key card and was there from 04:22 to 04:25 and then returned to the elevator. At 04:24 she texted B saying “wake up.” At 04:29 she showed her ID to the front desk attendant and left the hotel. The front desk attendant said the complainant appeared normal and he did not notice a smell of liquor from her.

After retrieving her things she drove home to [omitted for publication]. Testimony of the Complainant [ 29 ] The complainant had been off work due to an injury and had not seen her friend B for some time. She decided last minute to join him in [omitted for publication]. She was unaware he and his friends were going there for a golf tournament until she arrived. [ 30 ] She described having a pleasant time with all of her colleagues and spending time with B. She recalled consuming two Nude coolers and one vodka in the suite before going out to the bar and two vodka sodas at the bar the first time.

She said she avoids drinking different kinds of liquor as it makes her sick. [ 31 ] She did not have any recollection of any specific interaction with the accused in the bar the second time. She did recall that he wanted to buy the drinks and that she apologized to the server as they left. Although she ordered two drinks she believed she only had “a little bit of one”. [ 32 ] The complainant testified that the accused attempted to monopolize her attention throughout the evening. He immediately approached her in the suite when she arrived and engaged her in conversation.

After the accused returned from dinner, he was speaking with her when B interrupted and he chastised B for doing so. He was taking her arm as they walked out in the village. After B vomited, the accused pulled a chair up so he could sit next to her. As they left the bar for the last time the accused was dragging her by her arm away from the others. [ 33 ] Once she was in the accused’s suite, she was served a drink by him which she believed to have been straight gin. She did not know who poured it. She took one sip and did not have any more.

She said “beyond that I sort of lose all faculties” and has little recollection of details or sequence of events. Her “stomach did a somersault” and she described this as having happened instantly. She went to the bathroom and vomited. When she came out of the bathroom the accused had unfolded the couch. He told her she could share the couch with him. She took off her shoes and got into bed in her clothes.

She fell asleep immediately. [ 34 ] She described having “snippets” of recollection which were the thud sound of being hit with an open hand on her jaw, the feeling of her underwire bra being above her right breast, the accused whispering and touching her ear while making comments about her being attractive, the snap of an elastic and being pushed down by her left shoulder. When she came to full consciousness, the accused was between her legs performing cunnilingus. She said “no” and swatted at him.

Her pants and underwear were pulled down and completely off her right leg. [ 35 ] She felt she should “get out” immediately and got up and pulled her pants back on. She recalled the accused helping her to pull up her underwear. In direct, she speculated that perhaps he was trying to keep her from pulling them up. She was missing her right sock which she found at the end of the bed. She found her credit cards and ID on the side table but did not recall taking them out of her pants pocket. The accused was in boxers and a T-shirt.

In cross examination she adopted from her statement that she had seen his pants on the coffee table. [ 36 ] The accused asked her if she was okay and suggested she stay. She said she was okay to leave. She texted B saying “wake up” and had a clear memory of waiting for a response while at the elevator outside the accused’s suite. [ 37 ] She did not have a recollection of being in the elevator or leaving. She did recall feeling confused about where the other hotel was and using her GPS to locate it. She remembered she had a key card and tried to use it.

She also recalled getting a key card from the front desk and retrieving her things. She does not recall leaving the hotel, going to her car or driving home. She recalls being at home and her husband asking her what time it was and telling him it was around 05:30. [ 38 ] She went to bed and later spent the day on the couch feeling sick and likened it to recovering from anaesthetics after surgery. In cross examination, she agreed she described it in her statement as like having the flu. She said the day after she woke up feeling dull and like she was in a fog.

She had one red mark on her upper left chest in the area where she felt she had been pushed which she described as being like a pimple. Although she initially referred to this as a bruise in her testimony, she immediately re-stated that it was a red mark. [ 39 ] She did some research about sexual assault and date rape drugs. She went to a medical clinic and got medications for possible STD’s and took a Plan B pill. On Friday she attended for a sexual assault nurse examination and called the RCMP. [ 40 ] The complainant believes she was drugged due to what she experienced in the accused’s suite and afterwards.

She is experienced with the consumption of alcohol over long periods before and has never “nose dived” which I took to mean passing out and/or having memory black outs. She did not recall commenting to a colleague at B’s suite about vomiting after drinking although she agreed it was true. [ 41 ] The complainant was deliberately untruthful in the scenarios only to the extent necessary to carry out the ruse for wanting to meet with the accused. In particular, she told him she had not told anyone about the incident.

Testimony of the Accused [ 42 ] The accused’s recollection of the events of the evening up to having dinner is generally consistent with the evidence of his colleagues and the Admissions of Fact. [ 43 ] He was continually consuming alcohol over the course of the late afternoon and evening. He had two gin and tonics in his suite, two beer at the Keg and a beer at a pub after the Keg. He had one shot at the bar the first time. He also had a drink once back at his suite.

In direct examination, he did not account for what he had to drink at B’s suite between 18:20 and 20:00 or whether he consumed anything in the bar the second time. In cross examination, he agreed he had said in his statement that he had two drinks during his first time in B’s suite. [ 44 ] He immediately liked the complainant when he met her and was enjoying her company but did not recall monopolizing her attention. He said she took his and another colleague’s arm when they were returning to the bar after trying to get into the night club.

By the time they returned to the hotel, B was on the other side of the complainant but he could not recall when the switch occurred. [ 45 ] While in the bar the second time, he recalls that he and the complainant ordered the drinks and had a discussion about who would pay. He did not specifically recall the details of their interactions as depicted in the CCTV video evidence. [ 46 ] The accused testified that at the end of the evening, he felt that the complainant was attracted to him and he was also attracted to her.

However, once they were at his suite the sense of attraction “fizzled”. [ 47 ] They sat up chatting and having a drink until the complainant went to the washroom. He was unable to recall any details of their conversation. At that point he decided to unfold the couch. He was not aware she had vomited. When she returned, he told her he was tired and going to bed and she was welcome to sleep on the bed with him until she felt able to drive. He took off his pants leaving him in his boxers and she took off her shoes.

They got into the bed and he fell asleep. [ 48 ] He said he awoke to the complainant “grinding” her bottom into his groin. She then turned to him and kissed him on the lips. He concluded she wanted to have “physical contact”. She turned away and continued grinding her bottom against him. He took this to mean they were going to have sexual intercourse. [ 49 ] He put his hand on her breast over her t-shirt and she made pleasurable sounds so he went under her shirt and pushed her bra up and was massaging her breast while she continued to grind her bottom against him.

She then lay on her back and he licked her nipple. He reached down and massaged her genital area over her jeans. He believed she was consenting because of her body movements and the sounds she was making. [ 50 ] He tried to slide his hand down the front of her jeans but they were too tight. The complainant reached down and undid her buttons while the accused moved to sitting up by her side. She raised her hips to allow him to pull down her pants and underwear to her thigh area. He did not remember removing one leg from her pants.

He used his fingers to massage her clitoris and said she was moving her hips with his hand movement. He said he could see she was enjoying it. [ 51 ] He wanted to give her more pleasure so he moved between her legs and started to perform cunnilingus on her vulva. He had an erection. After a couple of seconds, the import of what he was doing as a married person hit him and he stopped. Immediately after he stopped the complainant looked at him and said “stop.” He laid back momentarily and then got up to go to the washroom. [ 52 ] When he returned the complainant was preparing to leave.

He asked her if she was okay to drive and she said was fine and was going home. He walked her to the door and watched her walk to the elevator. He went back to bed but did not go back to sleep. The next morning he told the other colleagues in the suite the complainant left shortly after they went to bed. [ 53 ] In the days and weeks after, he felt guilty for being unfaithful but did not think he had committed a criminal offence. [ 54 ] I turn now to what was said by the accused in the scenarios.

I will summarize those parts of the conversation where the accused describes what happened: - In the first scenario when the complainant initially referred to having “blanks a little bit about what happened”, the accused interrupted and said “Me too. Oh, as far as sex? We didn’t have sex or anything.” - There was lots of alcohol involved. Everyone was pounding back hard liquor and had a lot to drink. No one drank any of the drinks in the bar the second time. - He was so drunk and out of it he had blanks too. It was a dark and black night for him too. - She wasn’t super loaded.

She was pretty loaded and she noticeably slowed down at the end of the evening - They both drank so much they passed out and when she felt better she left. - He had not taken off his jeans when he got into bed. If they were off as she was leaving, he must have taken them off when he went to the bathroom. - She woke up and got closer or up tight to him and “nuzzled in”. He thought “it was a kiss”. There was no kissing or fondling or grabbing. He put his arm around her. She was not making noises and did not speak. The indication (from her) was to do more so all of a sudden he “goes down”. - We were rubbing.

He put a hand “down there”. Her pants buttons were already undone and she pulled one side down. He doesn’t know how her pants came down or off. She took one leg out. - He was half out of it. They both came out of a daze. He stopped and she got dressed. - It jogged his memory when she told him that she said stop and then he stopped. When she said stop, he stopped and was shocked by what he was doing. He was consistent throughout the second scenario that she said stop first. - He was unable to get an erection.

- It was impossible she heard the snap of an elastic although he may have been adjusting his underwear. - She helped him pull up her pants or he helped her do so. - After she said stop, he described her reaction as “Boom - her clothes are on and she’s out”. He remembered the look on her face which he took as indicating she was sobered up and determined to go which sobered him up. - They both fell asleep or “passed out” again after the sexual conduct ended.

They woke up at the same time later at which point she said she was okay to go. - He asked if she was okay to drive and offered to go into one of the bedrooms. - He stayed awake until the morning. [ 55 ] In cross examination, he adopted the following from the statement he prepared on October 16 th 2019: - He said he had never been investigated for a criminal offence which was untrue as he had been investigated for an impaired driving matter in 2011 which dealt with administratively. - The complainant arrived just after 17:00. - He had two drinks in B’s suite before going out for dinner. - They went to the bar on one occasion and he described the events of the second time as the only time they were there. - He set out in detail how they went from the bar to the village and directly back to his suite.

On the way the complainant was invited to stay at his suite to sober up. - He and the complainant did not drink all of the drinks which they had in his suite and were only up for a few minutes after the last colleague went to bed. - He removed his pants before getting into bed. - He stopped and then she said stop and he helped her pull up her clothes. - He said “Only as I write this statement does it come to my mind that her drink could have been spiked” despite this having been discussed in the 2 nd scenario. - He summarized part of the scenario conversation as: “She wanted to know how her pants came off and I told her I was not sure, which was true as the only thing I helped her adjust was the jeans that had partially come undone.” He conceded in cross examination that this was untrue.

ASSESSMENT OF CREDIBILITY AND RELIABILITY Evidence of Colleagues [ 56 ] The colleagues who testified were confused about the sequence of events over the course of the evening and had incomplete recollections of some parts of the evening. This does not detract from their credibility and is to be expected given they would have had no reason to pay particular attention to such details at the time or for a lengthy period after the fact. All were to some degree under the influence of alcohol and B was highly intoxicated.

Despite the negative impact this has on the overall reliability of their evidence, I find their recollections as to their impressions about the interaction between the accused and the complainant on that evening to be reliable and corroborated. [ 57 ] I find the evidence of these witnesses, as corroborated by the Admissions of Fact and the CCTV images, establishes that over the course of the evening the complainant and accused were enjoying each other’s company and the company of their other colleagues.

The physical contact between them involved linking arms while walking and the complainant also linked arms with some of the others. In the bar at the end of the evening, it appears the complainant and the accused were both interested in buying the drinks. As they were standing waiting by the bar, there was a hug initiated by the complainant, a pat on the accused’s back and a kiss to her hand. The latter was related to the accused paying the bill. I would describe their interaction as mutual uninhibited friendly contact in the context of a work related event.

I do not accept the evidence of the complainant or the accused that the other was flirting or “coming on” in any overt way with the other. [ 58 ] This evidence also establishes that both the complainant and accused were consuming alcohol continually over the course of the evening but were not visibly or grossly intoxicated and were in a jolly mood when they arrived back at his hotel. Credibility and Reliability of the Complainant [ 59 ] I cannot find the complainant was given any kind of drug by the accused or anyone else. Her own belief that she was drugged is speculative.

There is no expert evidence from which the Court could conclude that her behaviour and perceptions before, during or immediately after the event, her overall pattern of recollection or her physical state later that day or the next day are consistent with having consumed any drug other than alcohol. [ 60 ] Her pattern of recollection is consistent with ongoing consumption of alcohol over six hours and, in particular, with heavy consumption of hard liquor over the last two hours which led to her vomiting in the accused’s suite and being unable to make her way

back to B’s suite. I find she fell asleep or “passed out” after vomiting. [ 61 ] I find the complainant has minimized her alcohol consumption over the course of the evening. In the almost five hours she was in the suite before going the bar, she recalled only having three drinks, none of which were a shot. If this were true, it is inconsistent with her statement suggesting she was drinking enough to be concerned about vomiting.

The receipt from the first visit to the bar shows four double shots were served and is inconsistent with her evidence that she would have had two vodka sodas. [ 62 ] There were fourteen beverages ordered at the bar at the end of the night, ten of which were double shots. The number of drinks ordered amount to two per person and all but two or three were consumed. There would have been two extra drinks once B left the table.

The complainant based her recollection that no one drank any of the drinks on “my understanding” that none were consumed. [ 63 ] The complainant was enjoying herself at the bar and was exhorting the others to consume more liquor. I infer she was continuing to do so as well. She also accompanied the accused and the others to their suite thereafter to continue to drink and socialize. She described her level of intoxication at that point as 6 or 7 out of 10. [ 64 ] I also do not accept that the complainant’s recollection of what alcohol she consumed at the end of the night in the accused’s suite is reliable.

I base this finding on the timing and content of the texts she exchanged with B contrasted with her lack of recollection of the events prior to her vomiting in the bathroom and her sense that she became ill instantly after having one sip of the drink she was given. Her evidence is also inconsistent in that she asserts she only had one sip, however in the scenario she refers to them having “a drink” or “drinks”. [ 65 ] The complainant said that the accused attempted to monopolize her attention from the moment she arrived in the suite through to the second time they were at the bar.

Earlier in the evening she purported to specifically remember that he linked arms with her after trying to get into the night club but did not recall also linking arms with B as they returned to the hotel. In contrast, she had no recollection of the animated conversation she and the accused had in the bar the second time during which they each engaged in touching the other in a friendly and non-sexualized way. As to the accused pulling her by her arm as they left the hotel to go to his suite, the CCTV footage shows their arms linked but does not show her being pulled along.

In cross examination, the complainant agreed she had concluded in hindsight that the accused had been monopolizing her attention. [ 66 ] In her testimony, her recollection of the main activities as they unfolded over the evening was correct. She did not attempt to exaggerate or embellish the sexual conduct the accused engaged in that she was aware of. Her testimony as to the details of what occurred in the accused’s suite was consistent with her statement and the scenarios save for some details. In her testimony she said she thought she was hit in the jaw.

In her statement she said she was slammed in the face around her lip area by the accused’s mouth. She agreed she had no injury from this. In her testimony she said for the first time she had swatted at his head. She readily adopted those parts of her statement which were inconsistent with her testimony. [ 67 ] The complainant refused to resile from her evidence that she texted B from the accused’s suite even when faced with the timing of her text and the CCTV evidence which contradicted her recollection. She said she was certain because of how desperate she was to reach him at that moment.

I find her recollection is a true one but simply in error as to which hotel elevator she was going to when she texted. Nevertheless, her overconfidence in her powers of recollection and her refusal to accept that she may have reconstructed some details detracts from her overall reliability. [ 68 ] I have carefully considered the credibility and reliability of the complainant’s testimony.

Her credibility is negatively impacted by her impression that she must have been drugged, her minimization of the amount of alcohol she consumed, her overconfidence in the events she does recall and her animosity toward the accused after the fact which caused her to construe him as having “latched” on to her over the course of the evening. [ 69 ] I find she steadily consumed hard liquor including several shots and was intoxicated by the time she went to the accused’s suite where she continued to consume more liquor until she became ill.

The reliability of her recollection of all the material events must be assessed in light of this. [ 70 ] Her minimization of the amount of alcohol she consumed and speculation that she was drugged is consistent with her feelings of shame and guilt and attempts to rationalize how she came to put herself in a position where she ended up sharing a bed with a male colleague she had just met.

She was candid in admitting in cross examination that her account of the accused monopolizing her attention was come to in hindsight and that she was very angry with him. [ 71 ] Although she became intoxicated to the point of vomiting and “passing out”, her pattern of recollection is consistent with coming to consciousness while still somewhat intoxicated and “sobering up” due to the shock of finding herself being sexually assaulted. The gaps in her memory and confusion after she came to consciousness are consistent with still being intoxicated to some degree and the emotional aftermath of trauma.

Memory gaps alone of certain portions of material events do not automatically render the evidence the witness does recall unreliable. Fragmented memory, even if due to intoxication, is not a complete absence of memory. [ 72 ] I accept the complainant’s evidence that she was not conscious or fully awake during the sexual conduct described by the accused. I accept her account of the “snippets” of events which occurred as she was coming to full consciousness and that any inconsistencies in her recollection are those that may be expected in the circumstances.

I accept that she reached full consciousness at the point where the accused began to perform cunnilingus. [ 73 ] I find her emotional reaction, which she described as “just needing to get out” right away, the description of the state of her clothing, getting herself dressed and out the door are details which are consistent with an actual experience and inconsistent with a fabricated version of events. Although she has a fractured and incomplete memory of what physical contact she and the accused had in the bed, her feelings and behaviour are inconsistent with having been engaged in non-consensual sexual conduct.

The steps she took after the fact in pursuing medical attention also support that she experienced non-consensual sexual contact. [ 74 ] I have also considered as one factor in the assessment of her credibility and reliability that, although there is no proven lack of

motive, there is no evidence of any motive to make a false complaint: R. v. Ignacio 2021 ONCA 69 at paragraphs 29 to 60 . Credibility and Reliability of the Accused [ 75 ] The accused said he had thought about the incident frequently prior to meeting the complainant.

He had two days between first and second scenario to reflect further knowing she wanted to know about the details. [ 76 ] For inexplicable reasons, when preparing his written statement, the accused was careless with easily verifiable facts, some of his phrasing and was untruthful. [ 77 ] In the scenarios the accused was deceitful and prevaricated to a marked degree. His explanation for why he did so, to protect the feelings of the complainant, does not accord with her demeanour or comments to him.

She made clear she wanted him to tell her the truth about what happened because she wanted to understand what had gone on as she had not previously experienced a “nose dive” after drinking. She was quite friendly, broached the subject in a matter of fact manner and was not upset or emotional. [ 78 ] I infer he knew if he suggested to the complainant she had initiated the sexual conduct and participated in the foreplay, she would deny it, as he knew she was unconscious or not fully conscious.

This is supported by his immediate assumption that the blanks in her memory were with respect to the nature of the sexual activity and so he tells her they did not have intercourse. [ 79 ] It is implausible that he would choose to disclose that she kissed him and he performed cunnilingus but not tell her what led to the kiss or the cunnilingus other than to say “we were rubbing and I put a hand down there”. He lied to her when he said he was not erect because he had too much to drink.

On his version of the events, which is that she had communicated her consent, through her conduct, to have intercourse with him and he had the intention to engage in intercourse with her, his having an erection would have been expected. [ 80 ] The testimony of the accused as to the course of the evening is confused as to the sequence and timing of some events which is consistent with the confused recollection of the other witnesses in this respect.

However, it is of particular significance in assessing the credibility and reliability of his testimony about the details of what occurred in his suite with the complainant. He could not recall any of their conversation in his suite before getting into the bed.

However, he asserted that there were no gaps in his memory for the details of what happened in the bed and testified to a very detailed and moment to moment continuous chronology of their actions. [ 81 ] I do not accept he could have a clear and detailed memory for what happened, given the amount of alcohol he had to drink and his acknowledgment that he was intoxicated. I also do not accept that his memory improved over time.

I find his version of the behaviours of the complainant, which he says demonstrate she was fully conscious and willingly participated, are fabricated to support his theory that the complainant voluntarily communicated her consent but does not recall doing so due to an alcohol related black out in her memory. [ 82 ] In the scenarios he repeatedly asserted that he was intoxicated and had been drinking heavily over the evening. His statement establishes that his memory for the events in the latter part of the evening is clearly very poor.

However, in his testimony he says he specifically recalls that the complainant took his arm when returning to the bar from the village, an event he did not recall happening at all when preparing his statement. [ 83 ] I infer his use of the term “grinding” in his testimony, as opposed to the terms “nuzzling” as he said in the scenario or “rubbing” as used in his statement, was chosen to suggest that she was conscious when she moved toward him rather than nestling in against him while asleep. [ 84 ] He was inconsistent about whether her pants buttons were already undone or partially undone or she undid them or he undid them or she helped him to undo them.

In the scenario he did not mention that her pants were too tight for his hand. Instead he said the buttons were already undone. He said he did not pull her pants down, they were pushed lower on one side and later that they were off one leg. However in his statement and testimony, he said she undid her buttons, lifted her hips and he pulled them down and one side was pushed lower than the other. I find these inconsistencies are explained by the need to meet the complainant’s evidence that one leg was completely off along with one sock.

Given that the accused was truthful when he said that they were each lying on their left side, it follows that it would have been the right side of her pants that could have pulled down as she was sleeping. [ 85 ] I do not accept his testimony that he had a sudden realization of the import of engaging in sex with the complainant and so stopped performing cunnilingus in the moment before she told him to stop. This is inconsistent with what he repeatedly asserted in the scenarios and is a highly implausible coincidence. [ 86 ] I find he fabricated that they had fallen asleep again after the sexual conduct.

I infer he did so in order to suggest to her that she was unconcerned about their sexual interaction at the time. [ 87 ] In the scenarios he said he remembered the look on her face as she was preparing to leave, the description of which I took to mean as being a determined one, and that “it sure as hell sobered me up”.

I infer he remembers this detail because of her apparent distress at having awoken to find him engaged in cunnilingus and was scared by her reaction. [ 88 ] I find his recollection that the complainant was in B’s suite for almost three hours before he went out for dinner, rather than the twenty minutes or so she was actually there, was a function of a need to justify why he told her in the scenarios he was discussing her at dinner and to establish a longer time frame in which their attraction developed. [ 89 ] His suggestion that she stay in his suite to sober up does not accord with the evidence the complainant intended to stay at B’s suite, which was a very short walk away, in her own bed and had what she believed was a valid key card. [ 90 ] There are many inconsistencies in the scenarios about what he said and to which of his colleagues about why she stayed and when she left.

There is no reasonable explanation for this other than that he was making things up in order to attempt to placate the complainant into believing that no one knew about the sexual conduct between them.

[ 91 ] I find his statement that he was not uncomfortable about what happened was an attempt to manage the impressions of the complainant to make her believe that, in his view, whatever happened should be of no concern to either of them as long as their spouses did not find out. [ 92 ] I do not accept that the accused would not have been concerned during the scenarios about the implications of sexual relations with a colleague not only with respect to his marriage but potentially for his career.

I infer the extent and nature of his deception and prevarication in the scenarios was due to concerns not only about his marriage and career but also about potential criminal liability. [ 93 ] I do not draw any negative inference from the angry reaction of the accused or his assumption the complainant was implying he drugged her. This was a very serious allegation and I have found it was based on an attempted rationalization by the complainant.

I accept that he was telling the truth when he denied this. [ 94 ] The many inconsistencies in his accounts of the events, the implausibility of some of his statements and false assertions of fact lead me to conclude the accused fabricated the key elements of his testimony which, if accepted, would support that the complainant was conscious and communicated her consent through her conduct. [ 95 ] I feel it necessary to address the accused’s evidence of the behaviour he believed to have constituted communicated consent.

In this matter, the Crown and Defence have jointly submitted that if the evidence of the accused as to the events in his suite raises a reasonable doubt about whether the complainant was conscious but has no memory of engaging in the behaviour he describes, his version of the events establishes she consented and he must be acquitted. [ 96 ] I did not have the benefit of argument on this point due to the positions of counsel for the Crown and Defence both of whom are experienced and enjoy this Court’s respect.

However, I have grave reservations about whether what the accused described should be seen to constitute voluntary communicated consent. In my view, what the accused described might well be found to amount to being reckless or wilfully blind as to whether the complaint consented and arose from his self-induced intoxication. “An accused cannot point to his reliance on the complainant’s silence, passivity or ambiguous conduct as a reasonable step to ascertain consent”: R. v.

Barton 2019 SCC 33 at paragraph 107 . [ 97 ] In Kishayinew at paragraph 75 the Court said: [75] Where an accused knows a complainant to be seriously intoxicated, reasonable steps must be taken to ascertain whether the complainant’s apparent participation in the sexual activity represented actual consent. As noted above, consent cannot be implied, nor can it be assumed. As Justice Hill noted in R v T.S. , [1999] OJ No 268 (QL) (Ont Ct J) , the extent to which the accused took reasonable steps goes to the genuineness of the mistaken belief.

Justice Hill explained at paragraph 118: [118] The reasonableness of the belief, however, goes to the issue of whether it was in fact honestly held. The more reasonable the available grounds for the asserted belief, the more likely the trier-of-fact would be amenable to accepting its genuineness.

In other words, where, on the known circumstances, a reasonable man would have been conscious of different facts, consequences, risks, and messages, and would have reacted differently than the accused, the more suspect will be the honesty of the accused’s asserted misapprehension as to consent... [citations omitted]. [ 98 ] This accused clearly appreciated the fact that the complainant had been drinking heavily and was intoxicated to the point where she could not drive. This was the very reason she stayed in his suite.

He refers to them passing out and being in a daze. [ 99 ] The accused testified that he no longer had the sense that whatever attraction she might have had for him still existed once they were in his suite. However, he took her moving close to him, rubbing against him and briefly kissing him, which he described as a peck on the lips, as an invitation to engage in sexual intercourse with her. This assumption on his part was completely unfounded.

They did not know each other, had spent only a few hours together in the company of colleagues and only a few minutes by themselves after the others went to bed at which point he did not believe she was attracted to him. [ 100 ] In the scenario he did not mention her looking at him until after she suggested she was out of it. He then added that she did look at him and kissed him for a second. In his direct examination he also omitted making eye contact with her.

At no time does the accused attribute any reciprocation of sexual touching by the complainant. [ 101 ] In these circumstances, an accused might well be found not to have taken reasonable steps to confirm the other person was in fact awake and oriented as to where they were and who they were with. I wish to make clear that I have not taken my view of this issue into account in my assessment of credibility or reliability or finding of facts. In particular, it has played no

part in my rejection of the accused’s evidence about the material events as untruthful. ANALYSIS AND CONCLUSION [ 102 ] The accused is entitled to the presumption of innocence. I must consider the totality of the evidence in arriving at a verdict. A trial is not a credibility contest. At no point does the accused bear any burden of persuasion in order to contradict the complainant or affirmatively establish consent. I must be very certain of the guilt of the accused in order to convict him.

I must be satisfied the Crown has proved the absence of consent beyond a reasonable doubt. [ 103 ] The Crown and Defence agree that it is not realistically possible for the Court “ to splice some of each person’s evidence with respect to the encounter, and settle upon a reasonably coherent set of facts, supported by the evidence, that is capable of sustaining the defence of mistaken belief in consent”: Park at paragraph 25 . [ 104 ] The Crown concedes that the evidence of the accused, if found to raise a reasonable doubt, supports that the complainant voluntarily agreed to engage in the sexual activity in question.

The Defence submits that “the critical issue is whether the Crown has proven beyond a reasonable doubt that the accused has been untruthful about the series of events he testified occurred between himself and the complainant while on the fold out couch.”

[ 105 ] Despite the frailties in the evidence of the complainant which I have addressed above, I find her to have been a credible and reliable witness on the key events. I accept that she was unconscious and at times semi-conscious and therefore could not and did not consent.

Although her memory is fragmented, on the totality and cogency of all the evidence, I find the Crown has proved beyond a reasonable doubt that she did not consent by her conduct to engage in sexual conduct with the accused. [ 106 ] I do not accept the exculpatory evidence of the accused and find he has been untruthful in his evidence about the material events. I find his evidence is neither credible nor reliable. After considering his evidence in the context of all of the evidence, it does not raise a reasonable doubt in my mind.

Having rejected his evidence, I am nevertheless satisfied beyond a reasonable doubt on all the evidence which I do accept that he knew the complainant was unconscious or not fully conscious when he engaged in sexual conduct with her. I find the Crown has proven the actus reus and mens rea of the offence beyond a reasonable doubt. I find the accused guilty. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia