r v. CASEY MARK, 2022 QCCQ 9944

R. c. Mark 2022 QCCQ 9944 COURT OF QUÉBEC Criminal and Penal Division CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF IVUJIVIK No: 640-01-036310-168 DATE: January 6, 2022 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-CHANTAL BRASSARD, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. CASEY MARK Accused ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ Restrictions on publication: Publication ban has been imposed under

section 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the complainant.This publication ban applies indefinitely unless otherwise ordered. OVERVIEW [ 1 ] The accused, Casey Mark, is charged with the following indictable offences: 1 . On or about September 7, 2014, in Ivujivik, District of Abitibi, did commit a sexual assault on E. I., committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 2 . On or about September 7, 2014, in Ivujivik, District of Abitibi, in committing an assault on S. I., did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . [ 2 ] On the night of September 7, 2014, E. I. and her sister S. went to Casey Mark’s house. That evening, they were the only three people present at the house. [ 3 ] They all drank alcohol and were intoxicated to different degrees. [ 4 ] At one point, S. went to the bathroom, leaving Casey and E. alone in the kitchen. During that time, Casey and E. moved to the bedroom and had sexual intercourse. According to Casey, the sexual activity was consensual.

E. has no recollection of the intercourse. [ 5 ] When S. came out of the bathroom and heard E. and Casey, she confronted the accused, believing that her sister was being raped, and tried to open the bedroom door. Because she was being aggressive with Mr. Mark, he expelled her from his house using physical force. S. was injured that night. MATTERS IN DISPUTE [ 6 ] The first question the Court has to answer is whether or not E. consented to the intercourse. [ 7 ] If so, the second question the Court must address is her capacity, on that evening, to consent to the act in question.

[ 8 ] In regard to the accusation of assault, the aspects the Court will evaluate are first if Casey caused the injuries sustained by S. and then assess if he was acting in self-defence. [ 9 ] Although the first count raises E.’s capacity to consent to possible sexual activity, The Court must first address the contradictory evidence presented and consider the credibility and reliability of each witness. [ 10 ] According to Casey Mark’s testimony, E. did consent to the sexual intercourse and had the capability to do so.

The Crown argues that E. did not consent and could not have consented because of her state of intoxication. [ 11 ] As mentioned, E. has no recollection of the evening of the alleged offences: She blacked out due to her consumption of alcohol and remembers little of the events that occurred that night. Her first memory is next morning, when she woke up at the police station and was told that she had been arrested for breaching a condition by which she was prohibited from consuming alcohol. [ 12 ] As for the count of assault, Mr.

Mark testifies to the fact that he did not injure S. when he was forcibly removing her from his house. He maintains that she must have hurt herself elsewhere. [ 13 ] According to S.’s testimony, Casey Mark assaulted her while she was on the floor, causing the injuries that she sustained. The Crown maintains that the accused is responsible for S.’s injuries.

THE LAW [ 14 ] According to our justice system, an accused is presumed innocent, therefore his or her guilt must be proven beyond reasonable doubt by the Crown. [ 15 ] A reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or the absence of evidence. A reasonable doubt is not far-fetched or frivolous, nor does it involve proof to a degree of absolute certainty or proof beyond any doubt. [ 16 ] When facing contradictory evidence, the Court relies on the following steps suggested in R. c.

W. (D.) [1] , which are intended to ensure that the trier of fact remains focused on the principle of reasonable doubt: First, if you believe the evidence presented by the accused, you must obviously acquit. Second, if you do not believe the testimony of the accused, but it raises a reasonable doubt, you must acquit.

Third, even if the testimony of the accused does not raise a reasonable doubt, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused. [ 17 ] To be convinced beyond a reasonable doubt means to be certain that an offence has been committed before convicting someone of the offence. A finding of not guilty is required when the evidence only manages to convince the decision maker that an offence probably or likely occurred.

If the evidence is not strong enough to convince the judge with a degree of certainty that the accused committed the offence, then he must be acquitted. [ 18 ] The assessment of credibility and reliability is at the core of this trial. [ 19 ] The Ontario Court of Appeal articulates the difference between credibility and reliability in R. v. Morrissey : [2] Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be.

The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously, a witness whose evidence on a given subject is not credible cannot give reliable evidence on that point.

The evidence of a credible, that is, honest witness may, however, still be unreliable. PRELIMINARY REMARKS [ 20 ] Before assessing the credibility and reliability of the witnesses, the Court must underline that all witnesses in the present file had difficulty remembering details of the events, either because they had consumed alcohol, because of the elapsed time between the events and their testimonies, or in some cases, because of both. This can be said for all protagonists involved in the events.

The Court must bear this in mind while assessing their testimonies. [ 21 ] Also, according to the evidence presented, there is no real timeline establishing at which point in time each event occurred that evening. The Court cannot know exactly when the sexual intercourse or the assault happened, only that both actions took place between six pm and a few minutes after midnight when S. showed up at the police station, which was recorded by police officers.

Furthermore, S. cannot recall where she went after leaving the accused’s house, therefore the observations made by the two police officers can only be considered as

interpretations made after midnight, not contemporaneous to the events. ANALYSIS Casey Mark [ 22 ] The evidence presented by the accused is entirely based on his testimony.

[ 23 ] Casey Mark stated that on September 7, 2014, he was living in Ivujivik. [ 24 ] He had known S. since childhood, [...]. Also, in the summer 2014, Casey and S. had sexual intercourse on two occasions. [ 25 ] As for E., he knew her because she was a friend [...]. [ 26 ] On September 7, 2014, Casey Mark went to the Co-op and ran into S. just before closing time. He invited her to come to his place. [ 27 ] Later on that evening, he was having some drinks by himself when S. and E. arrived.

He was only expecting S. to come, but E. joined them. [ 28 ] Casey then offered the sisters drinks and served them several glasses. The three of them had two ten-ounce bottles of Smirnoff vodka ( mickeys ). He did not see other bottles of alcohol that evening. As the night went on, they were all having a good time. [ 29 ] Casey drank, but remembers everything. [ 30 ] At one point during the evening, S. went to the bathroom to take a shower, which lasted for ten to fifteen minutes. During that time, E. was playing the guitar. Casey asked E. to follow him to the bedroom, asking her if she wanted to make love.

She said yes. E. undressed herself and went to lay down on the bed, naked. Casey did the same thing. They had intercourse and Casey ejaculated inside her vagina. [ 31 ] During the sexual relation, E. was conscious and awake. According to Casey, although she drank during the evening, she was not that drunk. However, E. was on her back, not saying much, and he was on top of her. [ 32 ] Right after the event, he heard knocking at the door.

According to the accused, S. was being aggressive, “like a dog.” Casey put on underwear and pyjama pants and opened the door. [ 33 ] At that point, he asked S. to leave his home because she was too angry. She refused, so he pushed her toward the door. The accused testifies to the fact that he pushed her on her shoulders only. She resisted and scratched him many times on his chest, back and arms. She fell on her knees and Casey made her get up so he could get her out of the house. The fight lasted less than five minutes. During the altercation with S., E. came out of the bedroom.

She was angry at S. and yelling at her. E. was fully clothed. [ 34 ] Once S. was out of the house, Casey locked the main door and went to lay down on the couch. E. went back to the bedroom. [ 35 ] The accused believes that the reason S. got so angry was because she was very drunk and jealous. When she left his house, she was not injured. Casey cannot explain the injuries, but says he had nothing to do with them, and that maybe they happened outside, after she left his house. [ 36 ] Later during the night, Casey was awakened by knocks on the door.

He opened up and saw two police officers. [ 37 ] In cross-examination, his testimony was not undermined. Casey said that he could not remember everything, such as what items he bought at the Co-op , what he did right after being at the store, nor what time it was when S. and E. arrived.

Casey mentioned that he was not aware of the time all night long. [ 38 ] As previously stated, the fact that Casey does not remember all the details of that evening cannot be held against him, as the situation is the same for all witnesses heard at trial. [ 39 ] When questioned about an iPad that S. would have used to record the events, Casey confirmed that S. had one when he opened the bedroom door. The iPad was left at his house and was still in Casey’s possession at the time of the trial.

He offered to bring it to the Crown Attorney for her to see that there was nothing that was recorded that would have any value in convicting him of a crime. The iPad was not seized by the police officers at the time. [ 40 ] The evidence presented by the Crown is based on the testimonies of S. I., E. I. and the two police officers that intervened with the parties on that night. S. I. [ 41 ] S. I. has known Casey all her life [...]. They also all lived in Ivujivik, which is a small village where most people know each other. She had been to Casey’s before, including during the summer of 2014.

She denies having any sexual relationship with the accused in 2014. [ 42 ] She testified that on September 7, 2014, she went to Casey’s house with her sister E.. [ 43 ] While S. was visiting friends, she got a call from her sister asking her to join her for a drink at Casey’s. At first, S. did not want to go. She says: “Maybe it was because I could not drink.” In cross-examination, she did not recall having said that during her testimony and did not know why she did not want to drink that evening.

She adds that it is possible that she was under conditions prohibiting her from drinking at the time. [ 44 ] E. called for a second time, saying she did not want to go alone, so S. agreed to accompany her. They arrived at Casey’s after supper, sometime after six pm. They all went to the living room, and started slowly drinking Smirnoff . According to S., they had four or five mickeys of alcohol (ten-ounce bottles). [ 45 ] During the evening, she played some music, but denies that E. was playing guitar because she does not know how to play that instrument.

She also recalls that a man came by and stayed with them just a little bit. She does not remember who it was.

[ 46 ] Because E. and Casey were talking loudly and being annoying, she went to the bathroom to text with her former boyfriend. Let it be said that S. had mentioned in her examination in chief that E. was taking loudly, but during the cross-examination, she could not recall saying that. It was only when confronted with the notes of her testimony that she remembered that her sister had also been loud. [ 47 ] When S. went to the bathroom, E. did not try to stop her from leaving and did not ask her to come back.

S. confirmed that at that time, all three of them were intoxicated. [ 48 ] In the bathroom, she spoke/chatted with her former boyfriend for about 15 minutes. However, during her cross-examination, she said that she did not know how long she stayed in the bathroom. She did not recall taking a shower when in the bathroom as mentioned in her police statement taken a day or a few days after the events. She did not explain why she had first stated that to the officer. [ 49 ] S. mentions that she still heard what was going on in the living room while in the bathroom.

When she could no longer hear voices, she called out for her sister. She heard E. say: “Why are you doing this to me, you’re like a father to me.” As she was stepping out of the bathroom, she heard sounds coming from the bedroom. E. was shouting and Casey was moaning. [ 50 ] S., believing that her sister was being raped, started knocking on the door. Because no one was opening the door, she tried to record the voices and moaning coming from the bedroom on an iPad so she could bring it to the police station for evidence. [ 51 ] S. tried to open the bedroom door but it was locked.

Casey slightly opened it, but S. could not see in the room. Casey was only wearing pants, no shirt. She remembers that he had one on earlier in the evening. Casey was saying something to her, but she does not recall what it was. As for E., her voice sounded like she was intoxicated. [ 52 ] She does not recall being aggressive when trying to open the bedroom door, nor that she was asked to leave. [ 53 ] S. then tried to leave with the iPad . She started to run away, but Casey chased her and beat her up by pushing her and assaulting her a number of times.

S. fell down and he hit her again about 20 times while she was lying on the ground. She cannot specifically recall or describe what he did to her. [ 54 ] During the altercation, she managed to scratch Casey on the neck. However, she dropped the iPad so she was not able to bring it to the police station after running away. She told Casey that she was going to report him. It took about three to five minutes between the time Casey opened the bedroom door and the time S. ran out of the house. E. did not try to leave the house with her. [ 55 ] Before S. left, she saw E. fully dressed in the living room.

Her sister was angry at her. According to S., E. looked like she did not know what she was doing. She said “hating words toward her,” although she does not remember the exact words. E. could not speak very well. She was not making any sense, her eyes were crossed, and she was staggering. [ 56 ] After being expelled, S. went to the nursing station first, and then to the police station, but she is not certain of her whereabouts. She mentions that it could have been the other way around.

S. does not know how long it took for her to get to the police station, nor if she went there directly after leaving the accused’s house. Normally, it would have been a ten-minute walk. It is unclear for the Court what happened after S. left the house. [ 57 ] S. does not remember how long she stayed at the police station, where she went after or if she checked on E. later that night because, as per her own admission, she was quite intoxicated. [ 58 ] Once at the police station, she told the officer what Casey had done. She was hurt, crying, and intoxicated.

She could feel pain in her ribs and she remembers that pictures of her injuries were taken, but cannot recall exactly when that was. This said, she identifies herself in the pictures filed under P5 . [ 59 ] At the nursing station, she was treated for injuries (ribs and bruises) and was given patches and medication for the pain. She felt pain and discomfort from her injuries for more than six months. [ 60 ] It is relevant to mention that S.’s testimony was in July 2021 while her cross-examination was only conducted three months later, which could help explain some of the discrepancies in her testimony. E.

I. [ 61 ] At the time of the events, E. was 22 years old. She knew the accused because he was the father of one of her friends [...]. [ 62 ] E. testified that on September 7, 2014, she was home all day. She believes it was a Sunday. During the evening, she received two calls from Casey. [ 63 ] Casey first called her parents’ house, where she was living at the time. She knows it was around seven because she could hear the church bells’ ringing. He asked her if she wanted to come to his house to have a drink.

She told Casey that she had conditions to respect, she could not drink and she was under curfew, although she does not remember the exact time of her curfew hours. [ 64 ] Casey called to invite her again a second time around ten to fifteen minutes after the first call. E. called her sister S. to ask her to come with her at Casey’s. S. and E. then left to go to Casey’s. [ 65 ] When they got there, Casey was alone and drinking. S. and she started drinking vodka straight from the bottle. E. was not sharing her bottle and drank it all. It was a ten ounces bottle of vodka containing 40% of alcohol.

It took her about an hour to drink it all. She remembers a second bottle being opened and drinking from it. She was not paying attention to S. or to Casey’s consumption of alcohol. [ 66 ] That night, Casey taught her how to play guitar, so she did play a little bit.

[ 67 ] E. remembers that Casey started cooking, but she does not know if she ate or not. She does not remember the rest of the evening, but recalls being in the living room and in the kitchen. [ 68 ] Due to her alcohol consumption that night, she blacked out and cannot remember everything that happened. It is not the first time that she is unable to recall an evening after drinking and blacking out. On the night of the events, she says she felt buzzed, a bit drunk at first, but that the rest of the evening is a blur. [ 69 ] The very last memory she had is hard to pinpoint.

She remembers waking up at the police station and an officer telling her that she had been arrested for breaching her conditions. He also informed her that Casey had been arrested in relation to what he had done to her: having sex with her and raping her. She cried and was angry. [ 70 ] Due to her breach of conditions that night, E. remained detained and was sent to a detention center down south. Officer Jean-Sébastien Marcotte Petit [ 71 ] Officer Marcotte Petit testified that he had been working for the Kativik Regional Police Force in Ivujivik on September 7, 2014.

On the night of the events, he was assigned to the night shift with his partner, Officer Mondoux. [ 72 ] A few minutes after midnight, S. arrived at the police station. She was highly intoxicated and had some visible injuries. She had bruises on her face and seemed hysterical, given her state of intoxication. She told them that she had been beaten up by Casey Mark because she was trying to stop him from raping her sister.

She asked them to go to Casey’s house right away because it was still ongoing. [ 73 ] At that point, Officer Marcotte Petit only gathered basic information, firstly because he did not want to delay the intervention, and secondly because it was difficult to get information from S. due to her state of intoxication and panic. [ 74 ] He went to Casey’s house along with Officer Marcoux. It took them two minutes to get there. They knocked at the door and Casey eventually opened the door. He was not wearing a T-shirt and had visible scratch marks on his neck and arms. The accused was intoxicated.

The Officer could see that he was foaming at the mouth, had red eyes, slurred speech, and an odour of alcohol emanated from him. [ 75 ] Officer Marcotte Petit went into the bedroom to check on E.. She was sitting up on the bed and seemed intoxicated, confused, and disoriented. Officer Marcotte Petit tried to question E. in regards to the evening’s events, but she did not provide any answers.

He does not remember what E. was wearing, but knows that she was dressed. [ 76 ] During his testimony, Officer Marcotte Petit mentioned that he could not recall if she had been sleeping when he entered the bedroom, nor did he remember any of the symptoms that made him believe that she was intoxicated at the time. [ 77 ] Given that Officer Marcotte Petit was not getting clear answers from E., he switched places with Officer Mondoux.

He then stayed with the accused. [ 78 ] Officer Mondoux came back to place Casey under arrest, and it is Officer Marcotte Petit who brought him to the police station. [ 79 ] During the time he was in the police vehicle, the accused said something to the officer, but the Court will not consider it as there was no ruling on the admissibility of that statement. [ 80 ] Once at the station, Casey was read his rights and he was placed in a cell. [ 81 ] Officer Marcotte Petit does not recall taking pictures of S.’s injuries. He stated not remembering if he wrote or read the occurrence report at the time.

He says he probably did read it, and went on to say later on in his account of the events that, of course, he had read it, contradicting his previous testimony. The Court is confused by the contradictions in the Officer’s testimony. [ 82 ] Officer Marcotte Petit did not co-sign the report. No notes were taken between the time the accused was arrested and his release some 40 hours later. [ 83 ] Casey was released on September 9, 2014, with a promise to appear. [ 84 ] Officer Marcotte Petit testifies to the fact that, even though E. had breached her conditions that evening, both officers decided not to act on it.

Based on the difficult events that had happened to her, they thought it was not a good time to deal with a breach of conditions. He does not recall that she was arrested or detained that same night. This clearly contradicts E.’s testimony as well as his partner’s. [ 85 ] Let it be noted that during his testimony, which was provided via a system of videoconference, the Court realized at one point that Officer Marcotte Petit was reading directly from his report. A testimony must be provided from memory, although officers can ask the Court to consult their own notes or report to clarify a given detail.

They may do so only with prior authorization of the Court. This greatly affects the reliability of his account of events, as the Court cannot evaluate his true capability of recalling what happened from memory. Officer Jean-François Mondoux [ 86 ] Officer Mondoux testified that he had been working for the Kativik Regional Police Force in Ivujivik on September 7, 2014. On the night of the events, he was also assigned to the night shift with Officer Marcotte Petit. [ 87 ] S. showed up at the police station a little after midnight. She seemed to be in a state of panic and highly intoxicated.

Her face was swollen and bruised, as demonstrated by the pictures filed under P5 . She said that she had been beaten up by Casey Mark and that he was trying to rape her sister. She also said that it was still taking place, so Officer Marcotte Petit and he went to Casey’s house as fast as

possible. [ 88 ] They arrived at the house about ten minutes after S. first came to the police station, given that they had to wait for a replacement night guard to arrive before leaving the station. [ 89 ] His partner knocked on the door and eventually Casey let them inside. [ 90 ] Casey had white foam around his mouth, glassy and red eyes, as well as scratch marks on his neck and arms. He identifies the pictures filed under P4 as the scratches and bruises seen on the accused.

Officer Mondoux also noticed two empty mickeys on the floor. [ 91 ] Casey told the Officers that E. was in the bedroom, so his partner, Officer Marcotte Petit, went to check on her. [ 92 ] During that time, Officer Marcoux stayed with the accused. Casey told him: “We had sex and we are here because her sister was jealous.” [ 93 ] Given that his partner was having a hard time getting answers from E., Officer Marcotte switched places with him and headed toward the bedroom. When first seeing the young woman, he noticed signs of intoxication.

E. seemed scared and said: “Don’t let him see me, I’m scared.” When asked what had happened, she said: “You know what happened.” E. was sitting up on the bed and she was wearing clothing. He does not recall seeing any injuries on her. [ 94 ] Officer Marcoux knew E., having had encounters with her prior to this event.

Her overall demeanour that night is what led him to believe that she was intoxicated. [ 95 ] Given all the information gathered from S., E., what the accused had said, and the state of the house, they placed Casey under arrest for sexual assault. [ 96 ] While Officer Marcotte Petit was taking Casey to the police station, Officer Mondoux stayed at the house with E.. He tried to get more information about what had happened, but E. could not even remember the conversation that he had with her a few minutes ago: E. did not recall saying that she was afraid of Casey earlier in the bedroom.

She thought that the police officer was there to arrest her and stated that nothing happened. [ 97 ] According to Officer Mondoux, E. believed that they were making things up. She was completely “out of it” and very intoxicated by alcohol. However, she was able to walk by herself and get from the bedroom to the couch. She repeated that nothing had happened multiple times. [ 98 ] E. refused to go to the nursing station. Given that she was under conditions prohibiting her from consuming alcohol, she was brought to the police station for the breach of a conditional sentence order.

Officer Mondoux believes that she spent the night at the police station but he is not 100% certain. To the best of his recollection, she remained detained, but it could have been based on events from later that night. [ 99 ] The next day, Officer Mondoux informed E. of what had happened the night before. He remembers E.’s reaction when he told her that she had been raped: She looked as if she was in disbelief, started crying, and seemed completely shocked. She did not speak for a few minutes.

She then agreed to go to the nursing station to complete a medicolegal kit. [ 100 ] Officer Mondoux was ordered by his superior to release Casey because of insufficient evidence. APPLICATION OF R. v. W. (D.) TO THE FACTS [ 101 ] First, does the Court believe the evidence presented by the accused? [ 102 ] Casey Mark testified to the best of his memory. Of course, as stated earlier, the elapsed time between the events and the trial as well as the alcohol consumption on the evening in question has affected the witnesses’ ability to recall details of that evening.

This comment applies to all of the witnesses to different degrees. [ 103 ] The details that the accused does not remember are peripheral and are not at the core of his defence. He states that the sexual intercourse between E. and him was consensual and that he was acting in self-defence when he forcibly removed S. from his house. [ 104 ] Casey appeared franc and sincere.

He did not seem to be hiding anything during his testimony and was not discredited at any point during cross-examination. [ 105 ] The Crown argues that the accused did not provide many details of the words he used or what E. said when he asked her if she wanted to have sex, nor did he elaborate on the sexual act itself. [ 106 ] It is always a challenge to assess a witness’s testimony when an interpreter translates what is said, which is the case here. There can be nuances between the words chosen by a witness to express himself or herself and the

interpretation of those words by a translator. Furthermore, from one language to another, certain words or expressions do not have a perfect match when translated.

The Court cannot simply scrutinize the words that were used, but must take into consideration the translation to assess his or her credibility. [ 107 ] Although the Court does not believe all of Casey Mark’s testimony, for example when he says that he invited S. and not E. to come to his place for drinks, other aspects of his version of events cannot be discarded. [ 108 ] The officers found two ten-ounce bottles ( mickeys ) of alcohol when they arrived at Casey’s house, confirming his testimony.

E. and S. testified that there were more bottles than those that were found. [ 109 ] As observed by both police officers, Casey Mark was intoxicated. He displayed symptoms such as foam around the mouth, red

eyes, and slurred speech, but nothing else was noted. However, E. and S. were described by the two officers as highly intoxicated and not making sense. [ 110 ] As for E.’s testimony, she may not remember much, but she appeared honest and sincere to the Court. Her rendition of the evening corroborates Casey Mark’s testimony on some aspects, and her sister’s testimony on others.

This said, the fact that she cannot recall most of the evening and that, when Officer Marcoux questioned her after the events, she repeated numerous times that nothing had happened, leaves the Court with a great deal of uncertainty as to what really occurred that night. [ 111 ] S.’s testimony raises serious doubts regarding her ability to accurately observe, recall, and recount the events of that evening.

The lack of details provided on the alleged offences is not only a concern for the Court, but a reason to question the reliability of her testimony. [ 112 ] The Court also wishes to acknowledge the poor conditions in which police officers work in Nunavik, such as the absence of man power, expertise, and resources.

This said, this investigation lacks seriousness: The scene was not exploited at all, no pictures of the house were taken, and no seizures of potential exhibits were done, depriving the Court of the material evidence that could confirm or contradict the evidence provided by the parties. [ 113 ] In its assessment of the accused’s testimony, the Court finds him reliable in his recollection of the events, and credible. Therefore, the Court believes the accused: the sexual intercourse was consensual.

The Court will now turn to the second question and appraise E.’s capacity, on that evening, to consent to the act in question. CAPACITY OF E. TO CONSENT TO SEXUAL ACTIVITY [ 114 ] In R. v. G.F ., [3] the Supreme Court of Canada thoroughly reviews the law surrounding capacity and consent in sexual assault cases, finding that they need not be considered sequentially.

Karakatsanis states in paragraph 51: While a complainant logically must be capable of consenting before there can be a factual finding that they did consent, a trial judge may be faced with evidence that the complainant was incapable of consenting and also did not agree to the sexual activity in question, and a finding of either will establish a lack of subjective consent. [ 115 ] In paragraph 56, she refers to the case of R. v.

J.A. [4] In J.A. this Court held that consenting requires that the complainant have ‘an operating mind’ at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43, 44. Thus, an unconscious complainant could not provide contemporaneous consent. [ 116 ] The Court must ask itself if the fact that E. cannot recall what happened that night because she blacked out is sufficient to prove, beyond a reasonable doubt, that she did not have an operating mind at the moment of the sexual relationship.

More specifically, the Court has to determine if E. had the capacity to consent to sexual intercourse at the time it took place even though she did not remember it the next day. Her capability to recall the events is not the issue. [ 117 ] It is obvious that E. was highly intoxicated when the police officers arrived at the accused’s house. However, as mentioned before, it is impossible for the Court to know precisely when during the course of the evening Casey and E. engaged in sexual activity, making the police officer’s observations less relevant, if not useless.

Once again, the evidence lacks a real timeline setting out at which point in time each event occurred that night. [ 118 ] In R. v. D.B . [5] , Justice Sparrows states, in paragraph 44: Nevertheless the complainant’s statements that she was “a little confused’ as to what happened, she didn’t ‘feel it was something she would have consented to,’ and that she thought there was ‘a non-consensual thing that may have happened’ demonstrate some uncertainty as to whether she consented to having sex at some point.

Despite extensive evidence of her intoxication that night, in view of this expression of some uncertainty about consent it is reasonably possible that she had a sufficiently operating mind to consent to even a brief sexual act and did so.

Given that the incident occurred 19 months ago, it is also possible that the passage of time may have affected her memory. (underlined by undersigned) [ 119 ] She adds in paragraph 46: It is clear from G.F., supra and J.A, supra that the Crown must prove beyond a reasonable doubt that the complainant was incapacitated to the point that she did not have an operating mind or that even if she had capacity she did not consent (…) [ 120 ] Casey Mark is clear. E. did consent to go to the bedroom with him and to have intercourse.

She undressed herself and laid down on the bed, naked. [ 121 ] E. herself testified that she felt buzzed and a bit drunk at first. In that condition, it would be reasonable to believe that she had a sufficiently operating mind to consent, even if she later blacked out. [ 122 ] The Court concludes that the Crown did not prove beyond reasonable doubt that the complainant was incapacitated by alcohol to the point where she did not have an operating mind and could not have consented. [ 123 ] Her reaction when being told that she had been raped has no impact on the Court’s decision.

She was given the information that she was sexually assaulted, not that she had sex with the accused. Being detained, given this kind of information, and having no memory of any sexual activity would certainly cause strong emotions, though it is not relevant for the evaluation of E.’s capacity to consent. Therefore, the accused is acquitted on the first count.

AUTHOR OF THE INJURIES sustained by S. [ 124 ] It is clear, based on the evidence presented, that S. sustained injuries. The extent of the injuries is not disputed. She had to receive medical attention and suffered pain for months after the events. However, the questions the Court must address are how and when S. got injured and, as a result, who is the author of the injuries. [ 125 ] During her testimony, it was impossible for S. to describe how the accused assaulted her. She did not recall where she went after leaving the accused’s house.

Of course, this lack of precision and clarity affects the witness’s reliability, as concluded earlier by the Court. [ 126 ] Casey admits that he used force to expel S. from his house. However, he states that he never punched or kicked her. As mentioned before, The Court has no reason to discard his testimony and believes him. Casey Mark acted in self-defence using reasonable force in the circumstances. [ 127 ] This does not explain what happened to S.. We have no answers to the following questions: What exactly happened to S.? Did she go elsewhere after leaving the accused’s house?

Was she assaulted by someone else? Did she fall? Unfortunately, these questions will remain unanswered. [ 128 ] Therefore Casey Mark is also acquitted on the second count. FOR THESE REASONS, THE COURT: [ 129 ] ACQUITS the accused on the first count of sexual assault according to

section 271

a) of the Criminal Code ; [ 130 ] ACQUITS the accused of the second count of assault causing bodily harm according to

section 267

b) of the Criminal Code . __________________________________ MARIE-CHANTAL BRASSARD, J.C.Q. Me Hannah Brais-Harvey Attorney for the Crown Me Lauren Dahan Attorney for the Accused Dates of hearing: July 15, October 13, 14, and 15, 2021