R. v. Mitchell, 2023 BCPC 178

Citation: R. v. Mitchell 2023 BCPC 178 Date: 20230606 File No: 68935-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. JAMIE TAYLOR MITCHELL PUBLICATION BAN Pursuant to s. 486.4 (2.2) of the Criminal Code ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: A. Ward Counsel for the Accused: M. Hopkins and C. Ryan-Jean Place of Hearing: North Vancouver , B.C. Date of Hearing: December 19, 20, 21, 2022 and March 24, 2023 Date of Judgment: June 6, 2023

Introduction [ 1 ] Jamie Taylor Mitchell is charged with one count of sexual assault of R.R. The offence is alleged to have occurred at Whistler on March 5, 2021. As the complainant, R.R., was turning 16 in a matter of weeks, the Crown quite properly determined to proceed on the basis she was 16 or over and legally able to consent. [ 2 ] The issues to be resolved are whether the complainant consented, and if she did not, whether the accused can rely on the defence of honest but mistaken belief in communicated consent.

These issues turn on my findings of credibility and reliability of all the testimony. [ 3 ] The Crown called R.R., her friend S.O. and Z.S., a parent of S.O. The accused took the stand in his own defence. Background Circumstances [ 4 ] The complainant, R.R. and three of her friends were in Whistler with their families for a holiday. R.R. and S.O., who are long time best friends, were staying in the Village while E.S. and J.Z. were staying outside the Village. They arranged to meet up in the Village sometime around 8:00 pm to 9:00 pm on March 5, 2021.

They decided to get liquor and were in the area of the liquor store looking for someone to buy it for them as they were under age. [ 5 ] All four females were 15 or 16 years of age. I had the benefit of viewing R.R. and S.O. in court. At the time of the trial they were quite obviously teenage females who appeared to be their current age of 18. I infer they presented as being in their mid-teens in March of 2021 when the incident occurred. Mr.

Mitchell agreed in his evidence that they appeared to be 18 years of age at the time of the trial in December of 2022. [ 6 ] They encountered the accused and three of his friends. Mr. Mitchell was 23 years-old and the others in his group were 24, 23 and 21, in age. Mr. Mitchell agreed to purchase liquor for them and delivered a 26-ounce bottle of vodka to the teenage females. Mr. Mitchell said he thought they had been out in the bars but also said they told him that all four had left their identification in their rooms. At best Mr.

Mitchell was wilfully blind to the fact he was providing liquor to under-age females. An invitation to join the males in their hotel room was made. The females declined. J.Z. was interested in the 21 year-old named Jared. She lied and told Jared she was 17 years old. She obtained his contact information. [ 7 ] Mr. Mitchell testified that it was R.R. who connected with him over Snapchat and it was she who arranged to meet them later at his hotel. Although I accept that R.R. gave Mr. Mitchell her Snapchat contact, I do not accept that she contacted him through Snapchat. R.R. was unable to account for how Mr.

Mitchell had her Snapchat contact. J.Z. was smitten with Jared and was the instigator for going to their hotel room. I accept the evidence of R.R and S.O. that J.Z. was communicating with all the males through Jared. [ 8 ] The females drank the entire bottle of Vodka while sitting outside in the Village and later in a washroom. The timing of this consumption is not clear but they each would have consumed around 6 ounces each over perhaps an hour between approximately 9:00 pm and 10:00 pm. R.R. was absent for a brief time after the vodka had been consumed as she needed to go back to their accommodation to change.

When she returned, J.Z. was insisting on going to the hotel room to meet up with Jared. The others decided to accompany her as they were concerned about letting her go there alone. [ 9 ] When they got to the hotel, R.R. recalled that they went straight up to the room. However, S.O. and Mr. Mitchell testified he came down to the lobby to meet them as the elevator to the rooms could not be accessed without a room key. The males were staying in a two bedroom suite.

There was a master bedroom with an ensuite bath and a second bedroom with a bathroom adjacent to it but accessible from the living area. [ 10 ] Once in the hotel room the females were offered liquor which R.R. said she declined. Mr. Mitchell testified everyone “shotgunned” a cooler as soon as the females arrived. S.O. said she “shotgunned” a cooler. There was no evidence as to whether the other two females consumed any liquor in the suite. [ 11 ] All three witnesses were intoxicated during the course of the incident and all of their perceptions and recollections must be viewed, to some degree, as unreliable.

I accept the evidence of S.O. that R.R. was intoxicated and do not accept her recollection that she had only a few sips of the vodka. [ 12 ] J.Z. and Jared quickly began making out in the living area and then went into a bedroom and locked the door. The other males were in the living area except for Mr. Mitchell who was in the bathroom with the females taking selfies in the mirror. [ 13 ] Mr. Mitchell and E.S. were then seen by R.R. and S.O. to be kissing in the bathroom and the door was then closed. R.R. and S.O. left the room.

The bedroom door was then locked. [ 14 ] As S.O. and R.R. were concerned about J.Z., they knocked on the bedroom door and tried to gain access. When the door was opened J.Z. told them she was fine and closed the door. [ 15 ] As R.R. and S.O. were also concerned about E.S. being with the accused, they attempted to get the door to that bedroom open. One of the males in the living room assisted them. When the door was finally opened, E.S. was in a towel and was upset. Mr. Mitchell was in the shower. E.S. got her clothes and went into the other washroom with S.O. to dress.

She disclosed to S.O. that she had been raped by Mr. Mitchell. E.S. was alone with Mr. Mitchell for about 10 minutes. R.R. was not told that E.S. had been sexually assaulted by the accused prior to encountering him on the balcony. [ 16 ] Mr. Mitchell portrayed E.S. as being willing to engage in intercourse with him after having only brief social interactions with him in the company of R.R. and S.O. They were strangers to each other. Mr. Mitchell described E.S. in a manner that suggested she was

sexually experienced and a proactive participant in their sexual activity. In cross examination he could not provide any detail as to the course of that activity other than to suggest E.S. consented by her conduct. He said he felt they had a “connection” and began kissing. He estimated their sexual activity progressed from fully dressed and kissing to intercourse in a matter of minutes. He could not recall if he engaged in cunnilingus or if he put his penis in E.S.’s mouth.

The Evidentiary Issue re Consent [ 17 ] The narrow evidentiary issue regarding consent is whether the Crown has proved beyond a reasonable doubt that R.R. did not consent. Although R.R. testified she did not consent, whether I accept that assertion of non-consent “is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct” ( R. v. Ewanchuk [1999] 1. S.C.R. 330 at para. 30). [ 18 ] Mr.

Mitchell says R.R. communicated her consent by conduct to “making out” but then declined to engage in intercourse when asked by the accused for her consent and he did not attempt to do so. [ 19 ] If I find R.R. did not consent, the Crown argues that Mr. Mitchell cannot rely on the defence of honest but mistaken belief in communicated consent as he failed to take reasonable steps to obtain clearly communicated consent before engaging in any sexual activity with her given their age difference, particularly with R.R. presenting as a person in their mid-teens, and because they were strangers.

Although R.R. was intoxicated it is not submitted that was incapable of consenting as a result. As I must consider R.R. to have been able to consent to sexual activity, her age is only one factor to be considered in determining this issue. Circumstances of the Sexual Assault Allegation [ 20 ] I turn now to the circumstances of the sexual activity which forms the basis for the charge. The course of events as testified to by both R.R. and Mr. Mitchell is generally in accord. It is the state of mind of each of them as to what, if any, any sexual activity R.R. consented to engage in which differs.

To be clear, R.R. testified she did not consent. [ 21 ] Once S.O., E.S. and R.R. were back in the living area, J.Z., Jared, the accused, and the other two males were also present. According to R.R. she went out on the balcony alone before E.S and S.O. came out of the bathroom. According to S.O. and Mr. Mitchell, she followed him out. [ 22 ] Based on his own testimony, it is of note that a mere 10 minutes had passed since Mr. Mitchell had been in bed with E.S. when he found himself on the balcony with R.R. Less than 10 minutes later, he was in bed with her asking her to engage in intercourse.

This occurred despite testifying under cross examination that he and E.S. had agreed to cease their sexual interaction, prior to him achieving climax, because he felt “uncomfortable” or “weird” about not being in the living area partying with their friends. [ 23 ] Once R.R. and the accused were on the balcony they engaged in small talk. There was music playing or which had been played from the complainant’s favourite group. They observed they were wearing the same brand and model of sneakers. Mr. Mitchell had a cigarette. He told R.R. he thought she was pretty. He said she returned the compliment.

He asked her how many men she had been with. [ 24 ] They kissed. Mr. Mitchell picked R.R. up and she put her thighs on his hip area and her arms were over his shoulders. He carried her into the bedroom through a sliding glass door and lay her on the bed. It is unclear whether he removed his pants and the robe he had been wearing which he put on after his very recent post coital shower. He removed a hoodie she was wearing. He lay on top of R.R. and she sensed being pressed down by his body weight. He put his hand under her shirt and undid the back clasp for her bra.

He slid his hand under her pants over her bottom. He told her he wanted to have intercourse. R.R. said she did not want to have intercourse as she was on her period. She said Mr. Mitchell persisted in making requests to have intercourse and she repeatedly told him she did not want to. Mr. Mitchell said he asked only once to have intercourse. [ 25 ] S.O. and E.S. were concerned about R.R. now being in a room with the accused and opened the door. They yelled at Mr. Mitchell to get off of R.R. He told them to shut the door so he could get dressed.

R.R. says he got back on top of her and again asked to engage in intercourse. He says she grabbed him and pulled him back down on top of her. [ 26 ] S.O. and E.S. again opened the door at which point R.R. got up and left the bedroom. Mr. Mitchell testified he was annoyed by the interruptions of S.O. and E.S. and wanted nothing further to do with R.R. He also said he could not remember if he asked her to come back later or if she offered to return later. I find it highly unlikely R.R. said she would return later. [ 27 ] All four of the females then left the suite. S.O. was very upset and crying.

There are differing accounts of who was crying and when. R.R. was crying once she was outside the hotel and immediately called her sister. E.S. and J.Z. called for a ride, and once that was arranged, R.R. and S.O. walked back to their accommodation. [ 28 ] R.R. continued to cry on the walk and after they arrived back at their place. S.O.’s parents got up to find out what had happened. R.R. did not want to tell them they had been drinking and gone to a hotel room with adult males they did not know.

There was concern about E.S. not wanting to disclose what had happened to her and for J.Z., who was attending a treatment program for substance abuse. R.R. felt pressured to provide an explanation and was not prepared to disclose she had been sexually assaulted. She and S.O. told S.O.’s parents that they had been accosted in the Village by a man as they were walking home. [ 29 ] Shortly after, S.O. convinced R.R. she should tell the truth. In the meantime, S.O.’s stepfather, Z.S. had called the police about the male who had accosted S.O. and R.R.

R.R. and S.O. attended to the police detachment and were interviewed. They each gave statements in which they lied by attempting to omit what had occurred with E.S. and J.Z. The next day the four females met for brunch and discussed the incident. Later that week, they had further conversation related to E.S. deciding to make a statement. Applicable Legal Principles [ 30 ] In R. v. Stewart 2021 BCPC 111 at paragraphs 16 to 32 the Court set out a succinct

summary of the law of sexual assault.

[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 in legal 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 steps in 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 must go on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest but mistaken 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, the accused 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 the complainant was not consenting, or he was reckless of or wilfully blind to the complainant’s lack of consent. [ 31 ] I have also considered R . v. E.A.G. 2020 BCSC 1691 at paras 182 to 204 ; R. v Palmer 2023 BCSC 453 at paras 11 to 24 ; R. v Bertacco 2020 BCSC 1275 ; R . v. J.R.B 2021 BCPC 242 ; R. v.

G.M. 2021 ONCJ 362 ; R. v Greif 2021 BCCA 187 ; R. v. Gerrard 2022 SCC 13 and R. v. Lifchus 1997 CarswellMAN 392. [ 32 ] As this decision is one which turns on an assessment of credibility and reliability I will quote this

summary from Palmer : Presumption of Innocence and Proof Beyond a Reasonable Doubt. [11] As with all criminal trials, the central question in this case is whether the Crown has proven Mr. Palmer is guilty of the charges beyond a reasonable doubt. The presumption of innocence, one of the cornerstones of our criminal justice system, remains with Mr. Palmer throughout. It is not displaced until the Crown has proven its case beyond a reasonable doubt. An accused does not have to testify or call any evidence. He bears no burden to prove his innocence.

If he does call evidence, then that evidence is to be assessed along with all the other evidence. [12] Proof beyond a reasonable doubt is a high standard. Before entering a conviction, the court must be sure of the guilt of the accused. Absolute certainty is not required, but proof that an accused is probably guilty or likely guilty is not sufficient. It is not simply a case of the court deciding who to believe, the complainant or the accused. Reasonable doubt is not a farfetched or frivolous doubt, but must be based on evidence, or the lack of evidence, before the court.

Credibility of Witnesses, Reliability of their Evidence, and R. v. W.(D.) [13] For cases involving the credibility of the accused, the Supreme Court of Canada gave us guidance in applying the reasonabledoubt concept in R. v. W.(D.)., 1 S.C.R. 742.

That framework is as follows: • First, if I believe the evidence of the accused, I must acquit; • Second, if I do not believe the evidence of the accused but am left in a reasonable doubt by it, I must acquit; • Third, even if I am not left in a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of theevidence I do accept, I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [14] To this list I would add if, after careful consideration of all of the evidence, I am unable to decide whom to believe, I mustacquit: R. v.

C.W.H., (BC CA), [1991] B.C.J. No. 2753 (B.C.C.A.). [15] It is important to remember that the W.(D.) framework was never intended to be a statute and should not be read like one. As Ihave observed in other decisions, many courts have commented that this framework is not a magic incantation or something to beslavishly followed. What is important is that the principles underlying the W.(D.) framework are applied. Justice Paciocco of the OntarioCourt of Appeal discussed these underlying principles in a fairly recent article.

He identified the principles that drive the W.(D.) framework as these: 1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; 2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; 3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if that fact-finder cannot decide whether theevidence is true, there is a reasonable doubt and an acquittal must follow; 4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and finally, 5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

David M. Paciocco, “Doubt and Doubt: Coping with R. v. W.(D.) and Credibility Assessment”: 22:1 Can. Crim. L. Rev. 31. [16] The parties' submissions focused substantially on the credibility of witnesses and reliability of their evidence, particularly that ofMr. Palmer and C.W., so I will say a brief word about the assessment of those things here. [17] The court's fact-finding role requires an assessment of the credibility, which is the truthfulness and honesty of a witness, as wellas the reliability or accuracy of the witness's evidence.

This requires consideration of many factors which were helpfully summarized byJustice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, at para. 186: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, [1952] 2 D.L.R. 152(B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of theevidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existenceat the time (Farnya at para. 356). [18] To this, I would add that a court may believe some, all, or none of the evidence of a witness. I would also add that credibilitydeterminations “may be not be purely intellectual and may involve factors that are difficult to verbalize”: R. v. M.(R.E.), 2008 SCC 51 atpara. 49.

I would also add that it is important not to base determinations of credibility on emotional evaluations, guesswork, stereotypes,or other impermissible reasoning. Credibility and reliability decisions have to be grounded in reason and made as objectively as possible. [19] I am also mindful to exercise caution in placing too much reliance on demeanour evidence. I have no baseline upon which toassess the demeanour of a witness and I fully appreciate that a courtroom can be an unfamiliar and intimidating place. People arenervous, they react to its pressures differently.

There are many authorities that have reviewed the potential deceptiveness of demeanour,for example, R. v. Pelletier, 1995 ABCA 128 at para. 18. [20] I am also mindful of the need to avoid stereotypical reasoning. Justice Milman recently addressed this topic in R. v.

F.J.C., 2018BCSC 1443, where he wrote: [44] The law now recognises that victims of sexual assault will react in a myriad of ways to the trauma of having been assaulted.Therefore, in assessing the credibility of a complainant, particularly a child complainant like K.C., the mere fact that she did not try toavoid the accused or report the alleged assault to others within a particular time, is not a proper basis upon which to discount hercredibility and thereby harbour a reasonable doubt about the guilt of the accused, insofar as it would be based on discredited andstereotypical thinking about how people in general are supposed to behave in such circumstances . . . [21] I am also aware that the evidence of an accused must not be assessed in isolation, but in the context of other evidence led at trial.

Our Court of Appeal recently explained this concept 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 . . .

As a result, there will be cases where a denial, defences thatrely heavily on the testimony of the accused, or hypothesized inferences are rejected outright “based on a considered and reasonedacceptance beyond a reasonable doubt of the truth of conflicting credible evidence” . . . This does not mean that the trial judge haserroneously chosen between competing narratives, simply preferring one to the other. To do so would constitute reversible error.

Rather,it represents a finding that the testimony of the accused cannot stand in light of the cogency of the other evidence. [22] I also consider the age of complainant when the offences are alleged to have occurred. C.W. was between the ages of 12 and 19years old at the time of the alleged offences.

As well, it is uncontested, and abundantly clear from the whole of the evidence, that C.W.suffers from certain developmental delays that cause him to behave and communicate in ways that make him appear younger than hischronological age. [23] In assessing the evidence of C.W., I must be mindful of the fact that children may not necessarily perceive and recall events inthe same way that an adult would. Justice Forth discussed this concept in R. v.

Taylor, 2021 BCSC 1040: [129] The standard of proof does not change when assessing the evidence of children, but I must be sensitive to the unique perspectivesof the complainants who were children at the time of the alleged offences: R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at133. Even if they cannot recount precise details as one would expect of an adult witness, “this does not mean that they havemisconceived what happened to them and who did it”. I must take a common sense approach when assessing their testimony: R. v.

B.(G.), (SCC), [1990] 2 S.C.R. 30 at 54–55. [130] Of significance, Justice McLachlin in W. (R.) further recognized that the assessment of the witness’s evidence will varydepending on their age at the time of the events versus the time of their testimony, at 134: In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying. [24] To conclude, and to borrow again from Justice Paciocco, a criminal trial is not a “credibility contest”. It is a trial to determinewhether the Crown has proved the guilt of the accused on the specific charges alleged beyond a reasonable doubt.

It is therefore wrongto decide criminal cases where there is conflicting evidence about whether the accused is guilty simply by deciding which version of theevents is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proved the guilt of the accusedon specific charges alleged, beyond a reasonable doubt. This rule of reasonable doubt also applies to the issue of credibility: R. v.Thiara, 2010 BCCA 415 at para. 27.

Credibility and Reliability [33] I do not find the initial false description of being accosted in the village as the cause of their emotional state to detract from thecredibility of either R.R. or S.O. I accept that R.R. was not prepared at that moment to disclose having been sexually assaulted and wasconflicted about trying to avoid involving E.S. or causing J.Z.’s behaviour to be exposed. [34] I do not accept the suggestion put to R.R. and S.O. in cross examination that they fabricated the allegations against Mr. Mitchellbecause they were drinking and stayed out past their curfew.

This was a purely speculative theory. [35] R.R. was impeached with her initial statement to the police. Many of the passages put to her were difficult to make sense of andwere inaccurate. I agree with her description that she was trying to tell the whole story at once. I infer from the content of that firststatement that she was very emotionally upset and possibly still under the influence of alcohol. Nevertheless, she was able tointentionally mislead the police about the circumstances. [36] She told the police she had given her age as 15 years-old to Mr.

Mitchell outside the liquor store and that he tried to hug her. Shealso suggested she told him her age in the bedroom. At trial she testified she did not believe she told anyone her age and that Mr.Mitchell had not tried to hug her when in the Village. Telling the accused she was 15 years-old was not a matter of omission but rather anassertion of a prejudicial fact. [37] R.R. was unshaken in her testimony that she had been wearing her hoody prior to going out on the balcony and that Mr. Mitchellremoved it as soon as they were on the bed. I accept that this is an accurate and reliable recollection.

I accept she took it off at one pointto dry and put it back on again before going outside. I infer she was so upset after the incident that she forgot it was in the bedroom. [38] I also find nothing turns on the exact position of R.R.’s legs as she was picked up and carried by Mr. Mitchell into the bedroom.

The point of this cross examination seemed to be an attempt to establish that she gripped him with her thighs which would support aninference that she was consenting to the sexual activity. [39] I have considered that R.R. was not impeached with any of the content of her second statement. [40] S.O.’s evidence as to the background circumstances were generally in accord with that of R.R. She recalled that she and R.R. saton a bed for a short while before E.S. and the accused began kissing. She believed that R.R. and Mr. Mitchell were out on the balconyfor only 3 to 4 minutes before going into the bedroom.

I cannot find this estimate of time to be reliable as she was not paying anyattention to the time.

[ 41 ] R.R. and S.O. demonstrated their immaturity and lack of understanding of the criminal process by knowingly providing false statements to the police. On the other hand, both R.R. and S.O. were impressive witnesses for their age. I accept their evidence as having been truthful and sincere. However, I must find the credibility of their testimony is brought into some doubt by the deceit they engaged in when speaking to the police. [ 42 ] In her direct evidence R.R. suggested she was saying “No” to having “sex”. In cross examination, she confirmed that when she said “No” it was to intercourse.

In her first statement she said she told the accused “I don’t want to.” when he first kissed her. She also told the police that while he was putting his hands under her clothes she had said “No, I have to go. Stop.” However, at trial she did not testify to having made these statements. [ 43 ] I agree with Crown counsel that a victim cannot be expected to parse apart what they are or are not consenting to when they find themselves suddenly being engaged in sexual activity. I accept that what R.R. meant was that she did not want to engage in any sexual activity.

However, her testimony was equivocal on this material issue. [ 44 ] I have also considered that R.R. was unable to say whether she kissed the accused back while on the balcony or for how long the kissing went on for. [ 45 ] More significantly, I accept the evidence of S.O. who told the police that when she first opened the door and found R.R. and the accused on the bed,” they were laughing, telling her to leave and it didn’t seem like there was a problem”. In cross examination she clarified that she meant Mr. Mitchell was telling her to leave but did not resile from her observation that R.R. was laughing.

S.O. speculated that R.R. was laughing due to the uncomfortable situation. R.R. denied that either herself of Mr.

Mitchell were laughing. [ 46 ] I have also considered the double hearsay evidence of Z.S. who said S.O. told him that: “R.R. had ended up in a room with a guy named Jamie and that they were fooling around and that things started to go further than R.R. wanted and she said that he wouldn’t stop.” [ 47 ] Once Z.S. was aware of what went on in the suite he asked R.R. if she had been assaulted and she said no. [ 48 ] There were many inherent inconsistencies and improbabilities in the testimony of the accused. I have already addressed some of these so far in my reasons. [ 49 ] Mr.

Mitchell’s testimony was blithe with respect to what would have been readily apparent about the level of maturity of the four females and should have put him on notice to make a proper inquiry about their ages and circumstances. This is all the more so as J.Z. told Jared she was only 17 years-old. [ 50 ] As to his evidence regarding the sexual activity with R.R., he did not purport to have a detailed account of every word or gesture from which he determined she was consenting by her conduct. To the contrary, he simply believed she wanted to engage in kissing and sexualized touching.

He took no steps to confirm she wished to kiss him or engage in sexualized touching. Unlike with E.S. he did not say he felt a “connection”. [ 51 ] He was clear that he asked and R.R. refused his request for intercourse. As a result he did not proceed with any sexual activity in furtherance of intercourse. The evidence of R.R. is consistent with this save that she testified he repeatedly asked her to engage in intercourse and he said he asked her only once. [ 52 ] Mr. Mitchell provided no details as to why he believed E.S. to be consenting to engage in sexual activity.

He also provided no details as to why he believed R.R. to be consenting to engage in sexual activity. His lack of recollection of the details of the sexual activity with both E.S. and R.R. was consistent. There is little in his pattern of recollection which would support drawing an inference of fabrication. I find his evidence on the issue of her consent by conduct could reasonably be true. However, I do find his evidence in casting E.S. and R.R. as sexually experienced and open to engaging in casual sex with a stranger to have been self-serving. I do not accept his evidence in this regard.

Analysis [ 53 ] I am not permitted to draw any inferences from Mr. Mitchell’s alleged conduct with E.S. to support a finding of guilt. This evidence is double hearsay and cannot be used for the truth of its contents. I can only use the direct observations of S.O. and R.R. about the accused’s interactions with E.S. for contextual purposes with respect to subsequent actions taken or beliefs held. [ 54 ] I am not permitted to conclude that R.R. would not have been willing to engage in casual sexual activity based on stereotypical assumptions of expected behavior.

Any such inference must be grounded in the evidence at trial and R.R. did not testify to this. We need only consider the conduct of J.Z. to illustrate that such a conclusion would not be supportable as a generalization. [ 55 ] Although I believe R.R. and S.O. I am unable to reconcile the evidence of R.R. that she did not voluntarily agree to engage in any sexual activity with the evidence of S.O. about her laughing when the bedroom door was opened or what S.O. told Z.S. about R.R. fooling around with Mr. Mitchell and things going too far.

Having considered all the evidence, I am unable to determine with the necessary degree of certainty whether she did or did not communicate her consent through her conduct to kissing and touching and if she did so communicate consent, at what point the sexual activity went beyond what she was consenting to. [ 56 ] I must also view the evidence of both R.R. and S.O. as less credible given their failure to be truthful with the police when first interviewed. The four females also discussed the events amongst themselves before R.R. and S.O. gave their second statements.

It is also plausible, on all the evidence, that the experience of R.R. was influenced by her belief that Mr. Mitchell had raped E.S. [ 57 ] I do not believe the evidence of Mr. Mitchell. However, his testimony that R.R. kissed him back for a period of time on the balcony and participated in being carried into the bedroom cannot be entirely rejected in light of all the other evidence.

Conclusion [ 58 ] Having considered all the evidence I accept, I must find the Crown has failed to prove beyond a reasonable doubt that R.R. did not affirmatively communicate a lack of consent and I must acquit Mr. Mitchell. I do so despite believing the evidence of the Crown witnesses and disbelieving the testimony of the accused. My finding of a reasonable doubt on all the evidence arises solely from frailties in the evidence of R.R. and S.O. and the evidence which supports the testimony of Mr. Mitchell on the issue of consent. [ 59 ] Having come to this conclusion, I need not address the issue of whether Mr.

Mitchell had an honest but mistaken belief in communicated consent and whether he took all reasonable steps to in the circumstances to ascertain consent. [ 60 ] I feel the need to express the following observations for the benefit of Mr. Mitchell. On all the evidence, there is a significant likelihood that the conduct of Mr. Mitchell was deliberately exploitive and predatory. I infer that he saw these youthful females as potential sexual conquests when he encountered them in the Village looking for liquor. He purchased liquor for them.

The invitation made to four teenage females to attend to the hotel room of four adult males where they would engage in the consumption of alcohol could not have had any innocent purpose. The most blameless purpose would have been to provide the males with amusement at the expense of the females. According to him he was actively engaged in pursuing their attendance with R.R. over Snapchat. [ 61 ] Once the females attended to his suite he offered or provided them with more liquor in a manner intended to cause rapid intoxication. He then wasted no time in manipulating E.S. into engaging in sexual activity with him.

Within minutes he turned to R.R. for a second conquest. He saw these young women as nothing more than objects for him to use for his own selfish purposes. [ 62 ] Despite there being no discernible reason for his belief that R.R. wanted to engage in sexual relations with him, he pressed his attentions on her. He was focused solely on his desire to engage in sexual intercourse with her. He took advantage of her immaturity, lack of sexual sophistication and level of intoxication by suddenly kissing her and immediately picking her up and carrying her into the bedroom.

I find she would have been taken by surprise by these actions. I infer he took those sudden actions with the intent to overcome any resistance by urging his sexual advances upon R.R. before she had an opportunity to express any resistance or react. I expect he counted on her being intimidated by his age and sexual experience.

As R.R. described, the sexual activity proceeded very quickly and she was asked almost immediately if she wanted to engage in intercourse. [ 63 ] I agree with S.O. that it is likely that if R.R. was apparently laughing it was the result of embarrassment which would explain why she does not remember doing so. If R.R. did flirt with or kiss Mr. Mitchell on the balcony, it would appear that things went too far as soon as he put her on the bed and began, as she described it, “grabbing and groping her all over”. [ 64 ] The conduct of Mr.

Mitchell on the evening in question was despicable and is deserving of strong condemnation. He is being acquitted today as the result of a very narrow margin of reasonable doubt. [ 65 ] For the benefit of the complainant, her friends and her family I wish to make clear that I faced a dilemma in coming to the conclusion that I must acquit Mr. Mitchell. I have had to repeatedly instruct myself, while engaged in my deliberations, that I must remain objective and analyze the evidence rationally. In order to convict I must be satisfied that the evidence which I accept proved Mr.

Mitchell’s guilt beyond a reasonable doubt. This requires a very high degree of certainty. In circumstances such as these, where I have found myself arguing with myself about whether I have a reasonable doubt, I have a duty to acquit. ________________________________ The Honourable Judge J.C. Challenger Provincial Court of British Columbia