R. v. Williams, 2019 NSSC 352

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Williams , 2019 NSSC 352 Date : 20191127 Docket: CRAT480175 Registry : Antigonish Between: Her Majesty the Queen v. Jonah Williams and Tyler Ball ________________________________________________________________________ Restriction on Publication: ss. 486.4, 486.5 and 539(1) Trial Decision ________________________________________________________________________ Judge: The Honourable Justice D. Timothy Gabriel Heard: Oral Decision: October 21-25 & 28-31, 2019, in Antigonish, Nova Scotia November 27, 2019 Counsel: Courtney J. MacNeil and Alicia K.

Kennedy, for the Crown Craig M. Garson, Q.C., for the Defendant (J. Williams) Stanley W. MacDonald, Q.C. and Jack MacDonald (articled clerk), for the Defendant (T. Ball) By the Court (Orally) Introduction: [ 1 ] Each accused is charged that between the 17th day of November 2017 and the 18th day of November 2017 at or near Antigonish Nova Scotia that he did commit a sexual assault on SH, contrary to

Section 271 of the Criminal Code . Acronyms will be used to designate both the complainant and all of the witnesses who testified at trial (other than the two accused) in accordance with the various publication bans which have been put in place. [2] The complainant and the two accused were students at St. Francis Xavier University ("St. FX") in Antigonish, Nova Scotia, at the relevant time. Mr. Williams was a second-year student at the University in 2017, while both Mr. Ball and the complainant were first- year students.

All were living on campus in Cameron Hall, a complex that includes two male residences (MacDonald and MacPherson houses) and two female residences (Thompson and Thompkins houses). Mr. Williams was a resident of MacDonald House, Mr. Ball resided in MacPherson. Both are Nova Scotia residents. The female complainant, SH, was a resident of Thompkin’s house, and resides out of Province when not attending university. [3] Cameron Hall is configured such that the two female residences are sandwiched between MacDonald and MacPherson.

Due to that layout, to traverse the distance between the complainant's room and that of Mr. Williams, took literally a matter of seconds. [4] Mr. Williams was president of MacDonald house at the outset of that year. He applied for the position, was accepted by the

University as such, and attended St. FX early in 2017 (in late August) partly to undertake orientation and training with respect to the duties that he would be assuming in that capacity. The other reason both he and complainant attended the University in late August (before classes had begun) was due to the fact that both were varsity athletes. Mr. Williams was a member of the University football team, while SH was a member of the soccer team. [5] Both the complainant and her roommate (and friend) MMK, attended in late August 2017. MMK was also a member of the soccer team.

Neither of the two young women was from Nova Scotia, and both hail from the same hometown, where they had become acquainted with one another through their local involvement in the sport. They became closer friends once they came to university and became roommates. [6] The accused, Mr. Ball, was a member of the University football team as well. Unlike Mr. Williams, however, he was not on the starting team. He was a member of the practice squad, which meant (among other things) that he would get to start actual games only rarely. [7] On November 17, 2017, SH testified that she and Mr. Williams were close friends.

They were not in a relationship at that time, and she was not then interested in pursuing one, although she had been interested previously. Mr. Williams testified that he had indicated to her that he was not interested in a committed relationship with her, and as of that date, she appears to have been accepting of this. [8] November 17, 2017 was the date of the "Catalina wine- mixer", a university sponsored annual event centred around "the Inn", which serves as the on-campus drinking establishment. To participate, students were expected to dress up in somewhat formal attire and drink wine.

Many would congregate at the Inn and, afterward, migrate to private parties that were being held in many of the residences on campus. Due to crowding, however, some students did not manage to get into the Inn, choosing instead to merely attend the myriad other parties in the dorms. [9] Mr. Williams and SH met up at one of these parties on the fourth floor of MacDonald house. The two occupants of the particular room in which this party occurred had turned it into a "party room".

They had pushed their beds back against the walls and moved some of their other furniture out into the hall to facilitate dancing and socializing. The room had been tricked up with special lighting and music equipment. [10] Mr. Williams appears to have arrived first. Both he and SH testified that when the latter arrived at the room he was up on a window ledge dancing with another young woman. SH entered the room and ended up dancing with some girlfriends directly below that ledge. At some point the other young lady dancing with Mr. Williams got down, and SH got up.

Dancing progressed to kissing and holding each other tightly. One of them suggested that they go back to Mr. Williams room. Accordingly, they traversed the two flights of stairs down to his second-floor room. [11] While there, they began having consensual one-on-one sex in Mr. Williams' roommate's bed. Both agree that this occurred in various positions and that some "rough sex", largely consisting of his spanking of SH, occurred. In the testimony of Mr. Williams, this initial period was somewhat protracted, lasting 45-60 minutes.

Because of its duration, the activity was punctuated by "breaks" during which intervals the parties rested and talked. [12] It was during one of these hiatuses that Mr. Williams says that he raised with SH the idea of a threesome. SH denies that this conversation took place then or ever. The accused, on the other hand, says that she responded affirmatively. [13] According to Mr. Williams, the parties had resumed sexual activity when a knock on the door occurred. It was JM, Mr. Williams’ roommate, who wished to gain access to their room so that he could replenish his drink.

He was with three friends, JC, CG, and the co-accused, Tyler Ball. [14] According to SH, this was not the first interruption of the evening. It had been preceded by an earlier visit from her friend MMK, who was checking on her well- being. SH had a conversation with MMK, however, does not recall what was said, and MMK left the room. [15] In any event, when the four other men entered the room, there was a reference by Mr. Williams to "a sixsome" (SH initially said he referred to a "sevensome"). Mr. Williams says it was a joking reference and that everyone, including SH, laughed.

He says he then turned to the complainant in a serious vein and again asked her whether she was willing to participate in a threesome, and that she responded affirmatively. SH denies that this conversation, or any conversation to that effect, ever occurred. [16] The process by which Mr. Ball was selected as the third party in the threesome, as well as the sexual activity involving the two accused and SH which ensued, is controverted and best dealt with when the evidence supplied by the various witnesses is considered.

It suffices to say, however, that it is the activity which occurred during the threesome which forms the subject matter of the charges which the two accuseds face. [17] The crown called ten witnesses. Messrs. Williams and Ball each testified, and Mr. Williams called one additional witness. So there were thirteen witnesses in total. [18] The assessment of the credibility and reliability of all of these witnesses looms large in this case.

It is a somewhat unusual situation in which we not only have the testimony of the actual participants in the impugned activities, but also that of the various people who interrupted their activities at various points. The testimony of these others is not unlike the effect of lightning flashes illuminating an otherwise darkened or obscured tableau. [19] All of this evidence has been considered and evaluated. Only those portions sufficient to explain the conclusion at which I have arrived will, however, be referenced.

A. The Crown's Case

i) AJ [20] Ms. A was the sexual assault nurse examiner (SANE) who examined SH on November 19, 2017 (two days after the alleged sexual assault). At the time, AJ was studying to become a nurse practitioner, and SH was the last case in which she was involved in a SANE capacity. Because of this, she indicated that she remembered this case well. [21] She acted in tandem with a colleague, RP, and Ms. A's role was that of examiner, while RP documented the findings. She testified that SH was originally brought in by her soccer coach, and that her friend, MMK, came in about halfway through the interview process.

Part of RP's role was to ask questions related to the sexual assault history and document the answers. AJ was to conduct the examination, but she was present throughout the entire process and "signed off" on the forms, when completed. [22] One of these forms was what is referred to as a trauma gram. There was an indication on this form that a fluorescent light was not used as part of the examination of SH. It also indicated that a speculum was not used either.

AJ indicated that these were mistakes and was firm in her evidence that both a fluorescent light, as well as a speculum were used at various points in the examination. [23] Another significant piece of her evidence concerned some questions that were put to SH and the answers elicited. AJ was firm in her evidence that SH had advised both RP and herself that she had been penetrated anally during the threesome. She also testified SH told them that another part of the process consisted of Mr.

Williams pinning her down on the bed with his hands around her throat. [24] AJ testified that it was evident from SH’s discharge of brownish liquid that she was menstruating at the time of her examination. She could not, however, determine whether SH was just beginning or ending her cycle when she was examined on November 19, 2017. [25] AJ found evidence of bruising on SH consisting of some bluish purple (relatively blotchy) contusions on both hips (on the sides). These were depicted in photographs taken and entered as Exhibit 1.

There was no other bruising on any other parts of her body, and in particular there was none on the bottom part of her back. [26] Mr. Williams testified that this bruising is located in the areas that were spanked and also held by him, during the one-on-one consensual sex which preceded the threesome. In fact, as we will see, he felt that he was the one who caused the bruising, albeit during this consensual activity. [27] AJ also testified that there was some slight redness behind SH's vagina in the posterior fourchette area. This area was marked with an “A” on Exhibit 2. ii) SH [28] Ms. H is a 20-year-old St.

FX student. On November 17, 2017, she was attending her first year at the University. In addition to her academic duties, she was a member of the varsity soccer team, which involved approximately five practices per week, each of about 90 minutes duration, as well as one to two games. [29] She testified that she first met Mr. Williams in August 2017. Both had attended university a few weeks in advance of the commencement of classes in order that they could begin training for their respective participation in soccer and football. She characterized him as a close friend, as of November 17, 2017.

Accordingly, she trusted him. She did not know Tyler Ball at the time. [30] On the night in question, and preliminary to her attendance at the Catalina wine mixer, she had attended "Chillis", an all women's residence across the street from Cameron Hall. She was there with some of her friends, including MMK. Before that, at around 6:00 p.m. that evening, she had been at the residence of another friend, EF.

During this interval, she had watched EF prepare marihuana brownies. [31] This latter process consisted of the extraction of the intoxicants from five to seven grams of marijuana into an oil, and the incorporation of that oil into a brownie mix recipe. The result was a pan consisting of twelve brownies. The complainant consumed one of these. [32] After she left EF's residence in order to attend Chillis, SH testified that she began to feel high. This meant that her eyes felt heavy and her movement, somewhat slowed. She also said that she was "giggly".

SH indicated that this was the first time that she had ever consumed marihuana as an edible. [33] The complainant estimated that she would have arrived at Chillis by approximately 7:00 p.m. In this new location she, while in the company of some friends, consumed roughly one-half of a standard bottle of wine, and approximately two (out of a package of four) vodka "blackflies". She was drinking the wine directly from the bottle. She described the premixed vodka blackflies as being each

slightly larger than a bottle of beer, and about 6 to 7% alcohol by volume. The complainant said that this alcohol heightened the prior intoxication she had been feeling from the marihuana brownie. [34] Her recollection was that she left Chillis at approximately 8:00 or 9:00 p.m. that evening, and that she took her remaining vodka blackflies with her. She does not recall taking the remainder of her bottle of wine from Chillis. She described her state of sobriety at the time as being "tipsy, on the verge of being drunk".

She does not recall specifically consuming any further intoxicants for the duration of the evening, although says that it is possible that she had consumed more alcohol as the night went on. [35] SH returned to Cameron Hall and began getting ready for the evening. She recalled socializing and visiting various of her friends on different levels of the residence. At some point she ended up at the room where Mr. Williams was partying. She described lots of lights, with beds and desks pushed up against the wall to facilitate dancing.

She spotted him while he was dancing on the ledge and went to dance with some girlfriends who were in the vicinity. She said "I got up on the ledge, I don't recall how I got up, I believe he [Mr. Williams] helped me up, it's pretty high up". [36] Once on the ledge they began dancing, and ended up kissing. The complainant indicates that it was Mr. Williams' idea that they retire to his room. In any event, she was not opposed to this and got down and went with him. [37] She recalls going down two flights of stairs to his room on the second floor. SH does not recall them stopping off to socialize enroute.

She does not recall having any alcohol with her, and could say that she definitely did not consume any alcohol or other intoxicants after the two left the party room on the fourth floor. [38] SH testified that she was feeling drunk, experiencing slurred speech, blurry vision and that she was "a lot more drunk than usual". She explained that she would not be drinking 7% alcohol (the blackflies) on a casual night.

She also indicated that she had not been drinking much during soccer season and the season had just ended at the beginning of November. [39] She testified that she was "on her period" that evening and, as such, was nervous and did not really want to have sexual relations with Mr. Williams. Moreover, the complainant said that she told him that she was menstruating, and he responded "okay". [40] SH cannot recall how the two became undressed but at some point they were naked and began to have sex on Mr. Williams' roommate's bed.

She described the bed as plain, with just a couple of sheets on it. [41] The sex consisted of the two adopting various sexual positions including missionary style (with him on top of her), doggy style (with him behind her while she was on her knees), and with her straddling him on top. [42] The complainant acknowledged that during this process Mr. Williams was sometimes slapping/spanking her. Although she employed more than one descriptor with respect to this activity, it was clearly consensual on the basis of her testimony. [43] During their activity, Mr.

Williams had his hands on her breasts and the sides of her hips. SH did not find that the force which he had used in spanking/slapping her was uncomfortable. [44] At some point they heard a knock at the door. SH was unsure how long they had been thus occupied at this juncture. Mr. Williams answered the door. It was MMK. SH cannot recall anyone else being with her. [45] The complainant had a conversation with her friend. She could not recall either what was said or where Mr. Williams was while it took place. The upshot was that MMK was wondering if she was okay. SH replied in the affirmative, and MMK left.

SH believes that MMK remained in the doorway rather than entering the room. [46] The complainant testified that she and Mr. Williams resumed sexual intercourse. Their entire activity consisted only of vaginal intercourse. She emphatically denied, in particular, that he performed oral sex upon her, as she was menstruating and would not have permitted it. [47] After thus resuming, there was another knock at the door. Again, Mr. Williams got up to answer, and this time his roommate JM and three friends came in. She remained on the bed, covered up by a sheet.

SH did not know any of them at the time. [48] The complainant testified that she had no conversations with either Mr. Williams or anyone else while the four other young men were in the room. Mr. Williams however, made a reference to having a “sevensome”, “sixsome”, “fivesome”, or words to that effect. She further testified that she felt very uncomfortable during this process as she was naked in the bed. She was further unsure how long the other men were in the room. They had some conversations not involving her, and eventually they all, with the exception of Mr. Ball, left.

She recalled that the lights were on, but did not recall if the door to the room was closed while the others were in the room. [49] She said that there were no further conversations involving herself or either of the two men after the others left. Specifically, there was no conversation about her being involved in either a threesome, or having sexual relations with Mr. Ball. [50] While the two men were in the room (she does not recall how long the two had been in the room with her when this occurred) there was further knocking at the door. This time, some Residence Assistants (“RA’s”) were seeking entry.

Significantly, SH could not recall if this occurred before or after sexual activity had taken place between her and the two accused. Nor could she recall any conversation with the RA's. Specifically, she does not recall ever telling them that she was "fine" and that she "wanted to be there". [51] SH testified that the sexual activity with the two men began with Mr. Williams getting on top of her and penetrating her vaginally. Mr. Ball put his penis in her face and in her mouth. [52] She testified that her privates were hurting at this time, and she tried to push Mr. Williams away. She was on her back, Mr.

Williams was on top of her. He had his hands on her hips, thus pinning her to the bed. She denied that he or Mr. Ball had their hands around her throat at any time.

[53] The complainant testified that the pain in her privates was excruciating. She told Mr. Williams "no", and "you're hurting me". This was to no avail, so she grabbed him and pulled his penis out of her. She testified that, when she did so, he appeared to be in shock, or "stunned". SH could tell by the look on his face. But this only bought her a few seconds respite before he resumed having vaginal intercourse with her once again. [54] When she had grabbed Mr. Williams by his privates, she testified that Mr. Ball's pants were down and his penis was in her face.

She said she was shocked, disgusted, and "frozen in fear". SH said she did not even know Mr. Ball at this point, and said she had no idea why he felt it was okay to do that. He said nothing to her beforehand, nor did she say anything to him, nor could she recall how many times Mr. Ball put his penis in her mouth. [55] SH testified that she could not recall any other part of Mr. Ball's body coming into contact with her while the three of them were in the room. The ordeal came to an end when they heard further knocking on the door.

She had no idea how long the threesome activity lasted before that, but, on first hearing the knocking, the two accuseds got dressed. She remained in the bed and she said she was numb, trying to comprehend what had happened to her. [56] Mr. Williams answered the door. She did not recall what either he or Mr. Ball were wearing at the time. Her friend, MMK, was at the door. She came in and sat beside her. [57] The complainant testified that she was hysterical at this point. MMK helped to dress her and got her out of the room quickly.

She could not recall what either accused did when MMK entered the room, and did not recall the specific discussion that she had with MMK while in the room. [58] The two women went to the room that they shared. SH recalled that some of her other girlfriends were there. She recalls, in particular, JA, MMK, and KS, being there, with some others in the hallway. She was sitting on the bed, crying hysterically. She recalled MMK leaving the room to talk to Mr.

Williams, "I could hear her voice in the hallway." [59] SH testified that she was pretty good friends with JA at the time, and that she had a conversation with her that night, but did not recall what was said.

She was also friends with KS, LC, and RL, as well as MJ, but neither recalled them being present while she was in her room, or having a conversation with them about what had occurred. [60] The complainant remembered crying, lying on her bed, and talking with the others, before she eventually fell asleep. [61] The next morning when she awoke, she described herself as feeling sore in the area of her hips and vagina.

That day was to have been a busy one because they had new recruits coming in for the soccer team, and she was expected to assist with their orientation, along with her other teammates. [62] She testified that she could not put a tampon in due to the swelling in her privates. She also testified to bruising on her sides, in fact, on each side on her hip joints.

The bruises were blotchy and she testified that she did not have them before November 17, 2017. [63] There was to be a soccer practice that morning (November 18, 2017) and then a get together at the residence of one of the members of the men's soccer team, with the new recruits. SH was unable to participate fully in the planned events. She confided in her soccer coach as to what had occurred the night before, and his wife drove the complainant and MMK to St. Martha's Hospital the following day (November 19, 2017). She had stayed the overnight of November 18, 2017, with a girlfriend.

She testified that she was too afraid to return to her residence in Cameron Hall. [64] On November 19, 2017, SH testified that she was examined by two SANE nurses, one of whom asked her questions and another one who filled out forms. She described the experience as "overwhelming" and that she did not see the forms that the nurses filled out. MMK was not in the room with her for more than ten minutes at the beginning. [65] The complainant indicated that she was very emotional during the examination, and did not give the nurses a lot of detail.

She did not know how long the process lasted, or the time when she left the hospital. Her best estimate was that it took a couple of hours. [66] She also testified that the evening of November 19, 2017, which was a Sunday, her soccer coach put her and MMK up in a hotel for the night. After that, she stayed at a girlfriend's residence until her mother arrived from out of province on November 21, 2017.

After that, the two obtained a hotel room and stayed together. [67] During that interval she only returned to her residence long enough to grab her toiletries and belongings and take them with her. [68] She reported the incident to police on November 22, 2017, and provided them with her first statement that day (she was later to provide them with another, one week before the trial started). She had struggled to decide what to do.

She testified that she felt unsafe and that was her number one concern. [69] SH confirmed that the photographs in Exhibit 1 were taken by the SANE nurses and accurately depicted the bruising on her body at the time they examined her. She was adamant throughout that she did not consent to sexual activity with the two accuseds (together) at any point in time. [70] The complainant was cross-examined by counsel for each of the two accused. I will recount only the salient parts of those lengthy cross examinations. [71] For example, SH confirmed that her memory, while she and Mr.

Williams were alone in the room, could be characterized (in paraphrase) as "I don't remember every single piece of that night, I remember the important parts". [72] She also indicated that she told the SANE nurse the "whole story". What mattered to her was the three-way incident itself, rather than the period of consensual sex with Mr. Williams alone which preceded it (which she did not mention).

[73] She testified that she was definitely menstruating and had used a tampon on November 17, 2017, but does not remember putting it in or changing it. She did feel, however, that she would have put one in in the morning, and changed it approximately five to six hours later. [74] SH did not recall what she did before arriving at EF's house (where the marihuana brownie was made) on the date in question. [75] The complainant confirmed that when she was with Mr. Williams, and the other four males entered the room, the reference to "sevensome" was made by the accused jokingly.

She had also testified on direct that he had also referred to a fivesome, foursome, or sixsome. She agreed that before her direct examination, she had never mentioned this fact to anybody, nor had she mentioned: (

a) the slapping/spanking during consensual sex with Mr. Williams; (

b) pain in her vagina during sex; or (

c) the fact that she had not provided a lot of detail to the SANE nurses. [76] The very first formal statement that she gave to anybody was made to St. FX University investigators, to enable them to pursue an investigation of the incident. (This was followed by the previously mentioned statement that she provided to police on November 22, 2017). She told the university investigators, among other things, that on November 17 th she was "pouring her own drinks". She denied that this was inconsistent with what she had said on direct, which was to the effect that she was drinking directly from the bottle.

She said that what she meant was that she was looking after her own drinks and was not dependent upon somebody else to make them for her. [77] The complainant agreed that in her statements to the SANE nurses, the St. FX University investigators, the police, and at the preliminary inquiry (June 12, 2018), she had said that "seven guys entered the room" when she was there with Mr. Williams. She agreed that this was incorrect, as she never knew the exact number of people who entered at that time. She said she got the figure when Mr. Williams made the reference to a "sevensome". [78] Ms.

H agreed that it was possible that she had had a conversation with LC in her room after the incident saying: "I don't know if she was one of the people in my room afterward". It was pointed out to her that at the preliminary inquiry, she had agreed that LC had been there at that time. [79] SH was asked if she was aware that LC had written in her St. FX statement words to the effect that SH was visibly upset, and that SH had told Ms. C that she had consented, but then realized that it was not what she wanted when MMK was at the door to remove her from the situation.

The complainant indicated that she had no recollection of having made that statement to LC. She also agreed that LC was a friend on November 17, 2017, and remains one to this day. [80] The complainant testified that she did not know who LB was. She conceded that LB could be a Residence Assistant (“RA”), but was not familiar with her. Importantly, she had no specific recollection of such an individual being in the room with her and while the two men were there, or of LB speaking with her. [81] Counsel for Mr.

Williams asked SH why she did not mention the fact that an RA had come to the door, to which she had testified during direct, earlier to the St. FX investigators, or in her subsequent statement on November 22, 2017, to the police (and mentioned nothing about it at the preliminary inquiry until she was cross- examined).

She responded to the effect that, she knew there were people in and out of the room the whole time, just did not mention it and that her statement to the police was intended only to give the important points of the case. [82] SH reiterated that she recalled the RA at the door but nothing beyond that, and in particular, she was unaware of LB's statement to the police. In particular, she was unaware of LB’s statement to effect that she had been one of the RA's on duty that night, and had indeed entered the room while both men were there with the complainant.

She was also unaware of the thrust of LB 's evidence, which will be recounted further on, since she testified as one of the Crown witnesses. [83] In particular, when asked whether she recalls telling a female RA that she was "fine" and that she "wanted to be there", [in the room with the two men], and that her friends were just "overreacting", she responded that she recalls an RA at the door, could not recall if it was male or female, and did not recall any of the conversation that she would have had with this individual. She did add, however, that "I feel I wouldn't have said that." Ms.

H also indicated that if the female RA were to testify that she would characterize the complainant's level of intoxication at a 2.5–3 on a scale of 0 to 10, she would disagree. [84] The complainant disagreed with the suggestion that she was alone in the room with Mr. Williams, before the entry of the other males, for about an hour. She did, however, agree that the interval could have been between 30 to 45 minutes. Moreover, she disagreed with the SANE nurse's specific recollections that she had claimed to them that there had been penile penetration of her anus, or that Mr.

Williams had put his hands around her throat to hold her in place during the threesome. SH was, in fact, clear that neither of these two things occurred at any time. [85] She did not remember much about the spanking, except that it occurred and that everything which took place between her and Mr. Williams while they were alone was consensual. She also agreed that when she was "on top" his hands were often on her "hips and butt", and that he was also holding onto her and moving her while she was on top. [86] SH did not recall whether Mr. Williams was forcefully lifting her up and down while she was on top of him.

She also could not recall whether, when the two of them were having consensual sex doggy style, Mr. Williams had his hands on the sides of her butt/hips area, but could not deny that it had occurred. She also could not recall how many spanks/slaps were administered during consensual sex. She did agree that when Mr. William spanked her, she had no idea whether he was using one hand or the other, and agreed that he could have been using both at times. [87] One conversation that SH specifically recalled involved her explaining to Mr. Williams before they had sex that she was on her

period. She recalled no breaks during sex, when the two discussed other things. She specifically did not recall a discussion initiated by Mr. Williams as to whether she wanted to participate in a threesome that night. She did not recall a knock at the door preceding the other males entering the room, or Mr. Williams roommate asking if they could come in and get some liquor, nor does she recall telling Mr. Williams to “ignore” that knock, or any subsequent one. [88] The complainant did agree that at one point during the consensual sex (while the two of them were alone), she had told Mr.

Williams that he had hurt her. She agreed that he stopped when he was advised by her to that effect, however she did not recall whether he asked her if she wished him to "try lube", before resumption of intercourse. She specifically denied that he performed oral sex upon her at any time before or after resumption of intercourse. In fact, as indicated, she denies that he performed oral sex upon her at any time that night. She could not recall if she performed oral sex on him. [89] After the other males were in the room and Mr.

Williams jokingly referred to having a seven, six and fivesome, she could not recall if everyone, including herself, laughed. She emphatically denied that (while all were in the room), Mr. Williams asked her, seriously, if she was still interested in the threesome that the two of them had discussed while they were alone. She went on to deny that she agreed to that activity, to deny that he asked her again "really?", and/or that she reiterated her consent. She further denied any recollection of Mr.

Williams assisting her in choosing the third person by pointing at two of the men and saying to the effect that " they both have girlfriends they're out". She again emphatically denied that Mr. Williams pointed to Mr.

Ball and asked if she was okay with him, that she said yes, and/or that she reiterated this once again after the other males had left the room. [90] The complainant confirmed that JA was a friend of hers on November 17- 18, 2017, and she specifically denied that she had ever said to JA (after the threesome activity on that date), or at any time since, that the two men in the bedroom had asked her if she wanted to have a threesome. [91] SH testified that she had no idea how long it was after the other males left the room before Mr. Williams had further sexual contact with her.

She had said at the preliminary inquiry that that interval was "one minute or so" and agreed during cross that this was the truth. She denied any recollection of what went on during that minute or so, and also denied that she had any thought as to what was to happen when she was left alone in the room by the others with the two men. She suggested that some of the differences between the manner in which she testified at the preliminary inquiry and at trial were caused by the fact that the former was a very "traumatic experience". She described it as an interrogation, and said that she "was confused".

She emphasized that, "I always tell the truth". [92] SH appeared to agree that the episode of the RA's at the door occurred while both men were in the room, but she has no recollection of talking to either of them. [93] She also agreed that the RA’s visit was followed by MMK again banging on the door. SH said "I know MMK banged on the door twice that night.

I can't recall what she said the second time." Specifically, she did not recall MMK saying to her "do you remember what happened?" either once or a number of times, or of her saying to MMK "but Jonah doesn't know." The complainant could not, however, "rule it out" that these things were said. [94] The complainant was reminded of her testimony (during direct), which was to the effect that when she grabbed Mr. Williams’ penis and pulled it out of her, his face looked shocked and stunned.

She was reminded further that, at the preliminary inquiry, when asked what his reaction had been when she grabbed his penis, she had answered "I don't remember". She acknowledged on cross that she saw the contradiction but was adamant that she was telling the truth then, and now. She also agreed that prior to November 17, 2017, she liked and trusted Mr. Williams, and considered him a friend.

She indicated that up to that point he had never threatened or hurt her, and that he had not lied to her or misled her (to her knowledge). [95] SH also agreed that although she presently does not know whether she ever had bruises across her back, she did tell the police on November 22, 2017, that she had bruises all across her back the next morning. When she testified, she could not say whether she ever saw any bruises across her back at any time. [96] Ms.

H agreed that she is aware that a "threesome" is sexual activity involving three people, that it can include sexual intercourse, oral sex, and sexual touching, and that she knew all this in November 2017. [97] SH specifically agreed that she remembers her activities at EF's residence, where the marihuana brownie was made, she remembers going to Chillis, remembers MacDonald House, remembers what she was wearing, specifically remembers changing from heels to slippers after she got back from Chillis, remembers dancing in the upstairs room with the lights flashing, dancing on the ledge with Mr.

Williams, some of the people in the room, and leaving the room with Mr. Williams hand-in- hand. She also recalls going down two flights of stairs to his room, going into the room, details of the layout of the room, sexual contact with Mr. Williams before the other males entered, the different sexual positions which they consensually employed and hair pulling and the spanking, before the other males entered the room. She recalls no conversations about a threesome at all. [98] She does recall engaging in further sexual activity with Mr. Williams while Mr. Ball was still in the room, and that she did not ask Mr.

Ball or anyone else why he was in the room with them. When asked why she said nothing to Mr. Ball when he began removing his pants, she indicated that she was "worried about Mr. Williams at that point". [99] The complainant agreed that when Mr. Ball put his penis in her mouth she was on her back and he was to her right standing up. She did not recall him touching her with his arms or hands. She does not remember whether he moved her prior to placing his penis in her mouth. She specifically denied that she took Mr.

Ball's penis in her hand and placed it in her mouth. [100] When asked why she had agreed at the preliminary inquiry, that she could have placed her hand on his penis, she indicated some uncertainty as to what she did. SH added that she was "frozen with fear" at the time. [101] On cross she indicated that when she was aware that Mr. Ball's penis was coming towards her face, that she did not turn her face towards his penis, although at the preliminary inquiry she had answered “I don't remember” to that question. Moreover, on cross, she indicated that she did not recall how long Mr.

Ball's penis was in her mouth, whereas on November 22, 2017, in her statement to the

RCMP she said it had been there for a couple of minutes before MMK banged at the door and interrupted their activity for the final time. [102] During her cross-examination, SH denied any recollection of JM's girlfriend, AM, opening the door or entering the room while the two men were in there with her. [103] SH also explained that her soccer coach became involved in the situation on November 18, 2017, after she felt he was upset with her for her lack of participation in some of the events with the new recruits.

It was at that point that she told him that she had been sexually assaulted the night before, and he explained that going to the hospital was an option for her. [104] In her final answer while on the stand, given on redirect, she was asked why she used the word "interrogated" to describe her experience at the preliminary inquiry.

At this point, SH began crying and pointed to defence counsel and said "he was yelling at me, pointing at me ..." The word “interrogated” had been first used by SH when she was involved in explaining one of the apparent differences between what she had said at the preliminary inquiry and her trial testimony. iii) JM [105] JM was the roommate of the accused, Mr. Williams, on the night of November 17 – 18, 2017. He had known Mr. Williams since grade four and testified that the two had played high school football together. [106] They shared a small room together in MacDonald house.

When one entered the door to their room, (he testified) his bed was on the immediate right with a mini fridge on the left and Mr. Williams’ bed across the room by the left wall. There was a desk between the two beds with a TV on it. He confirmed, that in the fall of 2017, AM was his girlfriend, although she is no longer. [107] JM also knew the accused, Mr. Ball. They had played on teams with "Football Nova Scotia" together, and while at St. FX University they had become better friends. He had known Mr. Ball since the ninth or tenth grade.

They were not really friends until they got to the University. [108] CG was another acquaintance, so was JC. These two were close friends, closer than they were to JM and Mr. Ball. On the evening of November 17, 2017, JM met up with CG, who had been drinking. He did not seem intoxicated. He did not observe any of the others with whom he came in to contact that evening consume any other substances besides alcohol. [109] When they met up with Mr. Ball, JM was pretty sure that this accused was drinking wine. While he could not recall if he saw Mr.

Ball actually drinking, he could say he did not observe him consume any other substances. [110] JM estimates that he drank approximately one-half of a bottle of white wine (“Great White”). This is a fortified wine of a higher than normal alcohol concentration by volume. He said he was feeling a little "buzzed" but was not drunk. He definitely was not stumbling, or slurring his words, and he felt he had a clear mind. [111] He is pretty sure that he saw Mr. Williams that day, as the two are roommates, but did not observe him consume any alcohol or other intoxicating substances. He met with JC, CG, and Mr.

Ball in JC's room, however he cannot recollect the exact time on November 17, 2017, when this occurred. [112] He testified that he had probably just finished a glass of his wine before they all went out to socialize in the densely packed hallways, and that there were “people everywhere”. [113] Most of the parties were on the third floor. JM’s room was on the second floor, (MacDonald side) and JC's room was also on the second floor, but on the MacPherson side.

They all went over to the MacDonald side to socialize and saw people drinking wine, but nothing out of the ordinary. [114] His wine was kept in his room, so when his glass became empty, he and the others went to it. When he opened the door to his and Mr. Williams’ room, he saw a young woman under the blankets on his bed. She did not appear to be wearing any clothes, as he could see her naked shoulders and the bottom of her legs. Upon seeing this, they closed the door abruptly. He estimated that they were in and out in about two seconds.

JM did not recall having seen the young woman before. [115] While the men were outside the door, JM saw Mr. Williams run back into the room. He was wearing only his boxers. When he asked Mr. Williams to grab his wine for him so that the four of them could refill their drinks, the latter replied " it's fine, you can come in and fill it up." So they did. [116] When JM and the others entered the room, Mr. Williams said something jokingly about a foursome or fivesome. Everyone, including the young lady on the bed, laughed. Mr.

Williams then jumped in bed with the young lady and asked, "how about a threesome" – those were not his exact words but that was the effect of what he said. [117] JM could not tell immediately if Mr. Williams was still joking. While the other men looked at one another, JM testified that Mr. Williams looked at SH and said "seriously, would you be down for a threesome", to which she responded "sure, I don't care". [118] Upon being invited by Mr. Williams to "pick" which of the other men would form the third party, JM testified that SH laughed in a somewhat embarrassed fashion and turned her head. Mr.

Williams then pointed at JC and JM saying "girlfriend, girlfriend", meaning both had girlfriends. CG volunteered that he was not interested, which left the co-accused, Mr. Ball. He said "okay" and began walking towards the bed. At this point, JM, CG, and JC all left the room.

[119] JM felt that SH appeared comfortable with the situation, and appeared to be awake and alert. He also said that if she had appeared uncomfortable, or gave an indication that she did not want to be involved in what had been proposed, he would have intervened to prevent it from happening. Quite apart from all that, he was aware that St. FX University has a policy that if something illegal happened in his room, (with his knowledge) he could be "written up", or become subject to some other form of discipline himself. [120] JM indicated that he and the two others went up to the third floor to socialize.

Approximately 15 minutes later, after he had returned to the second floor, he saw MMK banging on the door to the room that he shared with Mr. Williams. She was banging very aggressively. When he said to her, "it's locked" or, "they're busy in there", he testified that she screamed back at him, "I know". JM, feeling that this was something he did not want to be involved in, left the area. [121] JM's best recollection is that he went back to the third floor to continue socializing. The next thing he remembers is hearing a commotion involving MMK and SH, who were upset. He remembers also seeing Mr.

Williams coming upstairs. When he asked the accused what happened, or, "did you have sex with her?", his response was to the effect that he had not, but rather simply had had oral sex. He also said that MMK had accused him of sexual assault. [122] JM also recalled a later conversation with Mr. Ball, who said he did not have sex with SH, and did not give many other details. He went on to testify that he spent the night in his girlfriend, AM's room. He did not recall discussing what had gone on that night with her. Since Mr.

Williams' arrest and removal from campus, which occurred sometime the following week, he said that he has only seen him maybe four times. He has seen Mr. Ball maybe eight times. This occurs when he (JM) happens to visit HRM.

D) CG [123] This witness was one of the men who entered Mr. Williams room with JM. In the fall of 2017 he was in his first year at the University, taking “human kinetics”. He is a close friend of JC, and had known him since the age of five or six. He had also known Mr. Williams since elementary school and had played football with him on various teams over the years. He did not know Mr. Ball prior to attending St.

FX in the fall of 2017, but rather had met him through JC. [124] November 17, 2017, although also the night of the Catalina wine mixer, was significant because it was the night before JC's nineteenth birthday. Because of that milestone, it was in the back of CG’s mind to touch base with JC around midnight. He also recalled taking a variety of pictures of different people in their finery that evening. [125] At one point, while socializing, he came upon Mr. Ball, JM, and JC all talking in the hallway of MacDonald House. They talked about his pending birthday and getting a picture together.

JC had been consuming alcohol although CG did not recall the type. The former was "feeling the effects" by which he meant that his friend seemed kind of "energetic". As to Mr. Ball, CG felt that he had been drinking, but did not recall noticing any signs of intoxication. He later clarified that he felt at the time was that Mr. Ball was intoxicated, but that it was only an assumption. JM was also drinking but CG could not remember any more details than that. Again, he recalls “assuming” that they were all intoxicated. [126] Eventually, they went back to JM's room.

His recollection was that they went there to take a picture. He recalls that when the door was opened, they saw a girl on the bed under the covers and that he did not know who she was. The door was quickly closed. He did not recall if the lights were on or off in the room, although when his memory was refreshed on cross-examination with a copy of his police statement given in December 2017, he agreed that the lights were on. Nobody said anything to the girl. [127] Afterward, they stood outside the room for a couple of minutes, then started to walk in the hallway. After a very s hort interval, they saw Mr.

Williams coming down the hall. He did not recall where this accused was coming from and believes he was wearing a dress shirt and dress pants. They asked him if he knew there was someone in his room. He responded that SH was with him and that it was okay if they went into the room. So, they went in for the second time, and, again on cross, confirmed that he thought the lights were still on. [128] The girl was still on the bed, the one closest to the door. There were a total of six people now in the room. CG testified that this was where Exhibit 6, the picture of himself and JC, was taken.

He could not recall who took the photo or if it was taken on his cell phone. Behind them in the picture is Mr. Williams' bed, rather than the one SH was in. CG could not recall when the photograph was taken that evening, the caption at the top says 9:53 p.m., but he was unsure if that was accurate. There appears to be a hat, a bottle of cologne, and a can of Bud Light on the table visible in the picture. CG felt that JC might have consumed some alcohol in this room. While the photo was being taken, he recalled seeing Mr.

Williams and SH talking, but he could not make out what they were saying. [129] After the photograph (Exhibit 6) was taken, they continued to talk and Mr. Williams got undressed and got in bed with the girl. The latter proposed a "fivesome" which was clearly said in jest. Then he addressed the girl, proposing a threesome. He did not recall the exact words that the accused used, but was not joking this time. [130] To CG, a "threesome" includes sexual intercourse, sexual touching, and oral sex. The girl responded with “I don’t care.” [131] CG testified that Mr.

Williams then told her that the choice was between CG and Mr. Ball because JM and JC were in relationships. CG promptly said he was not interested, whereas Mr. Ball said "sure". CG recalls that Mr. Williams then asked the girl again if she was okay with Mr. Ball, to which she (once again) repeated "I don't care". SH's demeanour was somewhat quiet, but he could hear her responses. He himself had no conversation with her, but she appeared to be responding to Mr. Williams in an appropriate manner and appeared to be understanding of what was said to her.

Like JM, he testified that he saw no indication of reluctance or coercion, and felt that she wanted to participate. If she had said no, or he had gotten the impression that there was a problem, he would

have stopped it. He said he himself was relatively sober and had had only a couple of drinks that evening. [132] CG and the others then left. He could hear Mr. Williams, Mr. Ball, and SH talking to one another as he and the other males were leaving. At that point, Mr. Williams was in bed with the girl. Mr. Ball was in the middle of the room in his dress clothes. He did not hear what was said. [133] After leaving the room, he went to a party in one of the residences on the MacPherson side of Cameron Hall. He was in a room with 40 to 50 other people listening to music and dancing.

He did not recall what time his evening ended and/or speaking with Mr. Ball further that evening. His memory was refreshed with a portion of the statement that he had given to the RCMP on December 13, 2017, in which he recounted a further brief discussion with Mr. Ball, in which he had asked the latter how "that" was, and that he received the response "nothing really happened".

E) MJ [134] In fall of 2017, MJ was in her second year at St. FX living in Cameron Hall, (Thompkins House), on the second floor. Her roommate was SK, and their room was directly across from MMK and SH's room. [135] She had friends visiting from out of province and was preoccupied with them most of the evening of November 17, 2017. At around 9:30 p.m. that evening they made an attempt to go out to "The Inn" but it was too crowded and they could not get in. They returned to her residence between 10 and 10:30 p.m.

She herself had consumed one bottle of "Girls Night Out" wine, which has a lower than usual alcohol content of between 7 to 8%. This was consumed in its entirety before their attempt to get into "The Inn". She consumed no intoxicants after that. [136] After their return to residence, her roommate and the others planned to visit SK's boyfriend. She herself met up with LC at the staircase on the Thompkins side of the house. They were either on the second or third floor, and began chatting and catching up. [137] While the two young women were talking, MMK approached them.

At first the conversation was about unrelated matters. Then RL, another of their friends, joined them. There were now four people in their group. [138] At this point, AM approached the four, and began talking mainly to MMK. She told MMK that SH was in an unusual situation, and asked her whether she thought something should be done about it. MMK appeared to be somewhat upset and became intent on interrupting the situation in which SH was involved.

MJ went back to her own room, but one or more of the others accompanied MMK. [139] While back in her room, MJ made a phone call to see where her out of province friends had gotten to. She estimated that approximately 20 minutes had passed before she heard some "chatter and crying" from either SH's room or the hallway in that vicinity. [140] When she attended, she saw SH in her room sitting on the bed crying uncontrollably. She was crying so hard she appeared to be gasping for air. There was no way to tell her level of intoxication because she was crying so hard.

Other girls (she recalls MMK, JA and AM) were there listening and attempting to comfort her. MJ went in to try to figure out what was going on, and only left very briefly to grab some tissues and water. [141] Upon her return to the room, and upon hearing a male voice in the hallway she went outside to see what was going on and saw Mr. Williams. In her words, this accused appeared to be "concerned and a little bit confused". She saw him with RL, and at this point felt it was in SH's best interest if the latter did not see or hear from him right away. As a consequence, MJ told Mr.

Williams and RL to take their conversation further down the hallway to get it away from the room. In fact, she led the two of them away from the door. [142] During the brief interval that she was thus occupied with these two others in the hall, she recalls MMK exiting the room, walking very quickly towards them and saying to Mr. Williams "don't come back to our room again, you're a rapist". Mr.

Williams left, and she, MMK, and RL returned to the room to be with SH. [143] At some point while MJ was there, there was a knock on the door and, when she answered it, it was a female RA, checking to see if everything was all right. MJ told the RA in words to the effect that there was a lot of people with SH right now and that if they needed her (the RA) they would go get her. The RA did not go into the room.

F) AM [144] In November 2017, AM was in her second year of university in the nursing program. Her roommate was RL. JM was her boyfriend at the time, although he is not now. She had known Mr. Williams since grade 7, but had only just met Mr. Ball upon her attendance at St. FX in September of that year. [145] On November 17, 2017, she was drinking wine, and believes that she had three to four glasses during the evening. Although she lived on the third floor, she knew both SH and MMK, having met them through friends who lived on the second floor.

[146] At some point (she thinks around 9:00 p.m. but could not say exactly) she had a discussion with MMK about the latter's relationship with Mr. Williams. In particular, MMK wanted AM to let her know if she saw Mr. Williams talking to SH, because SH was involved with a boy “back home” that she (MMK) believed would be better for her than Mr. Williams. [147] After that conversation, AM continued about her night, and sometime later ended up at JM's room (the room he shares with Mr. Williams) looking for him.

She could not recall if she simply walked into the room or walked in after knocking first and receiving no response. When she entered she saw SH, Mr. Williams and Mr. Ball all in there together. [148] SH was on the bed by the door (JM's bed). Mr. Williams was standing at the end of the bed and Mr. Ball was standing next to the bed near the top of it. SH appeared fine. She was lying on the bed, under the blankets, laughing and smiling. Mr. Ball had all of his clothes on, and Mr. Williams was standing near the end of the bed. He appeared to have a blanket around him.

He seemed to be otherwise naked. [149] She felt that she might have taken one step into the room, and was there for 10 to 15 seconds at most (on cross she agreed that it was probably less than 10 seconds) saw what was going on and left. To her recollection, the lights were off. No one said anything that she can recall. While she thinks that they saw her there, she did not remember anyone specifically looking at her. She confessed to a "little surprise" to see them in JM's bed, but did not see anything that gave her any sense that there was something bad going on in that room. [150] AM closed the door, and left.

She ran into MMK and RL approximately 10 minutes after that. They were on the stairwell of the second floor on the girls side and she stopped to talk to them. She recalled MMK asking her if she saw SH, and she recalls telling MMK where she was, and conceded on cross that she had told her that SH was involved in a threesome with Messrs. Williams and Ball. MMK appeared upset, her reaction was very quick, and she got up and headed immediately towards Mr. Williams room to get SH. AM walked down the hallway with MMK, then left from there, not continuing on to the room itself.

AM went back up to the third floor. [151] When she came back down approximately 10 minutes later, she saw SH sitting on her bed in the room that she and MMK share, with JA, MJ and RL with her. SH was crying and quite upset. AM believed that SH was under the influence of alcohol, and had observed her with a glass of wine in her hand earlier that night. [152] AM helped her boyfriend, JM, wash the sheets the next day. She noticed no stains on them when they did so. She recalled that the sheets were navy blue.

G) JA [153] JA was in her second year of a health sciences program in November 2017. She then lived in Tompkins house on the second floor two doors down from the room shared by MMK and SH. Her roommate was KK. She had known Mr. Williams for just over a year at that point, and had only just met Mr. Ball at the beginning of that academic year. She did not know him, merely "knew of him", and that is still the case today. [154] JA and SH originally met through mutual friends. They became "sort of close" because of the proximity of their rooms. She did not recall drinking much that evening.

Although she was drinking white wine, she consumed merely enough to have a "buzz on" at some point during the night. She recalls going to the MacDonald side of the residence where a couple of different rooms had parties going on. [155] She had attended a couple of these parties. At some point she came into contact with MMK who was worried about SH being in a room with Mr. Williams. She was upset about this and wanted to get SH out. JA responded that if MMK was intent on doing so, she would accompany her. JA proceeded to do so. [156] She remembers people in the hallway enroute.

When they got to the door they tried the handle then knocked. JA kicked at it. The door was locked. They waited for a couple of minutes and then the door opened. [157] A recalls that when they went into the room, it was she who grabbed SH and took her out. She did not recall if anyone else was in the room besides SH and Mr. Williams. She also thinks it was she who entered first and grabbed SH, with MMK entering behind her, but she was not sure. SH was crying and shaking and "couldn't really talk" at the time. She estimated she might have been in Mr.

Williams’ room for maybe a minute. [158] JA did not recall anyone else being with her when she brought SH back to the room. She believes that, once there, RL entered at some point, but was not sure when. [159] MMK returned to the room a couple of minutes later. At that point SH started to say what had happened and her roommate consoled her. MMK then ran out of the room quickly. [160] JA could not recall if SH made mention of any reference having been made by Mr.

Williams to a “seven some” while she was in the room, but she did specifically recall SH mentioning that she had been invited to participate in a threesome by Messrs. Williams and Ball while they were in the former's room. [161] JA also recalled that, while she was with SH in her room, the latter called her ex-boyfriend (out of province) and used her cell phone to do so.

H) RL [162] RL was AM's roommate. In 2017, she was in her second year at St. FX University. She had known Mr. Williams since high school, as they had mutual friends. She had met Mr. Ball at University in the fall of that year, also through mutual friends. [163] On the night of November 17, 2017, she did not start drinking and socializing until around 8:00 p.m. She was taking her time while drinking, as she did not want to fall asleep early. [164] After they had socialized a bit, she recalled going to the second floor to check on a friend (KK). She could not recall at what time of the evening she did so.

While with KK, from two doors down, she could hear MMK speaking in a panicky voice. RL could hear her saying that SH was in a room with Mr. Williams, that she had been knocking and no one had answered, and that, "there is no way she [SH] would consent to a threesome." [165] By this time, JA had consumed a full bottle of wine, although it was of a low alcohol variety. She said she usually gets something around 5%. She had begun consumption around 8:00 p.m. and it would have been around 12:00 a.m. that she heard this commotion.

She felt fine, and she was not as drunk as she had been earlier. [166] She exited KK's room to try to find out why MMK was so upset. When asked, MMK said SH was having a threesome and that there was no way that she would want to do that. On cross-examination, RL recalled that MMK also said that SH had had a very bad experience in a threesome the year before, and that she also said that "even if she did consent to a threesome, she can withdraw consent at any time.

What if she had a flashback about the earlier incident?" By now they were outside of the room that MMK shared with SH. [167] RL's advice to MMK was that they should get the RA's involved. They went to Mr. Williams' door and knocked upon it. At some point they were joined by two RA's. She testified that one was "Abel" and she thought the second one was a male also. They advised the RAs that SH was in the room and they had to get her out. They further said she was really drunk and needed to get some help. [168] All of them knocked at the door.

When the door opened she saw SH, she had her clothes on and was bawling her eyes out. She was standing up when the door opened. She saw both of the accused as well, both were standing up but she could not recall where in the room. She could not recall much of what they were wearing "I think everybody had their clothes on" and thought the men were wearing suits. [169] RL described MMK as grabbing SH because she was crying so hard. She said that MMK had to literally hold her up as they returned to their room. She said she didn't see MMK go into the room, but she must have grabbed her very quickly.

The RAs did not accompany them back to MMK/SH's room. [170] She recalled that MJ, AM and JA all came into the room but could not remember who came in first or last. SH was very upset, and RL described her as crying so hard she could barely breathe. [171] While she could not make any observations as to MJ's sobriety, she said that both JA and AM appeared not to be drunk. RL recalled that while they were all in the room, a female RA came to the door but that they didn't tell her anything, opting instead to say that SH had just drunk too much and was having "boy problems".

At that point, they still didn't really know what had happened, and SH was not in a position to tell them. [172] RL recalled that the Residence Assistant's name was "L” but she wasn't sure. She also recalls SH saying at one point "Jonah doesn't know what happened", but was unsure of the context. She testified that she remembered Mr. Williams at one point out in the hall, and he was trying to talk to SH and seemed like he didn't "know what was going on". He seemed sober. She heard him say "I don't know what's wrong" and essentially pleading with MMK to let him speak to her.

She also heard a male voice in the hall saying (apparently) to him "come on man, leave it for now". She also recalled MMK screaming at him at one point, calling him a rapist. [173] Shortly after this time, RL left because her boyfriend was waiting for her in her room on the third floor, and that he did not know where she was. On the basis of a reconstruction from the text that she sent to her boyfriend, she thinks that she had been in the room with SH around 12:30 a.m. She returned to her room approximately 10 minutes after she sent the text. [174] Later that evening, Mr. Ball appeared outside her door.

He was looking for JM, and seemed upset. He looked like he had been crying. He said "I don't know what I did. She said it was “okay".”

I) LB [175] LB was one of the Residence Assistants (RA’

s) on duty on November 17, 2017. She was in her second year of a psychology program at St. FX University that year. Accordingly, by the time of the night in question, she had lived one year and three months in residence (her first year at the University had been spent in MacKinnon Hall). She confirmed that the term Residence Assistant (RA) is interchangeable with the title "community advisor" (CA). [176] Her duties involved working nights in residence, from 8:00 p.m. until “quiet hours”, which usually means 11 pm on a weeknight or 1:00 a.m. on the weekend. She was also accessible by phone off hours in the event there was a perceived need for her assistance (for

example in the event of a noise complaint). The bottom line was that she was expected to be available to her floor if residents on the floor needed help, such as a referral to resources, or other types of assistance. The hall director was her direct supervisor at the time. [177] LB described her main task in carrying out her duties as relating to the enforcement of the house rules, and making sure there was no trouble, whether due to intoxication or some other cause.

On occasion, she was required to "write up" a resident in the event of misbehaviour, and the consequences would be dealt with by the University's conduct officer. [178] In the hierarchy of sanctions, the least serious would be meted out for noise complaints, while the most serious would involve write ups, especially if violence or property damage were implicated, or if someone had been seriously harmed.

Sanctions could run a range from the offender receiving a “talking to”, or an email from a university official, to the most serious, which could involve expulsion from the residence or the University. [179] LB’s training involved attendance at the University before classes started in 2017, and listening to some lectures on what to do in the event of specific situations, combined with other courses on first-aid training, and the like.

On November 17, 2017, the night of the Catalina wine mixer, she was in her first year as an RA. [180] Up to that point, she had had occasion to observe many students under the influence of alcohol. In fact, LB ventured to say that she saw somebody intoxicated pretty much every night except, perhaps, Sundays or Mondays. Less frequently, but still not rarely, she would see people under the influence of other drugs. Among these “other drugs”, marihuana was relatively common, harder drugs less so. If she did see evidence of hard drugs, it was generally on a Friday or Saturday night.

Part of her training involved what to look for with respect to drug use. [181] During September to November 2017, she spent the majority of her time in Cameron Hall. After November, she determined that that residence was not a good fit for her, due to the relatively high amount of partying and alcohol consumption that went on there. She found it very mentally trying to discharge her duties because of this volume. [182] On the evening of November 17 – 18, 2017, LB was not scheduled to work. She was requested (after the shift had already started, to cover for another residence assistant who became ill that evening.

Accordingly, she ended up on duty with Abel Mazwa that night. Generally, the university’s policy was to have a male and female RA working the same shift together, so that one of them could enter a male or female residence if the need arose. [183] LB remembered that she got called into work around 11:00 p.m. that evening. Although she knew Mr. Williams, it was only well enough to say "hi" if they encountered one another. She knew him to be the president of MacDonald house. She merely knew Mr. Ball as a resident of Cameron Hall.

As for SH, she knew her face, but not her name. [184] LB testified that, when working as an RA, one is responsible for the entire building, rather than a specific

section of it. As a consequence, she was expected to go up and down each floor all shift long. [185] November 17, 2017, being the night of the Catalina wine mixer, was recollected by her to have been definitely busier than average. LB recalled multiple fights having broken out, lots of yelling and crying, with broken glass "everywhere", for good measure. [186] LB's first contact with Mr. Williams that evening came about as she was dealing with a separate unrelated incident. As she was going to where she was needed, she recalls him coming out of his room with a towel on him.

He appeared to have exited his bedroom, and to be going to the bathroom. [187] Approximately 15 to 25 minutes later, as she and Mr. Mazwa were again making the rounds in that area, she observed two girls banging on Mr. Williams’ door. They had banged for about 20 seconds before the RA’s intervened. When asked what was going on, one of the girls started to say something in response, but the other girl "the one in the red dress" told her to stop talking.

When encouraged by LB to tell her the problem so that the RA's could help if necessary, the first girl said something to the effect that her friend was in there (meaning Mr. Williams' room) and they needed to get her out. [188] LB testified that Mr. Mazwa then knocked, identified himself, and let Mr. Williams know that he needed to open the door. Mr. Williams complied, and the male RA proceeded to advise him that there were some young ladies out in the hall who were worried about their friend. Mr. Williams went out in the hall and spoke to him.

He was wearing jogging pants, she believed. [189] Meanwhile, LB went to the door to speak to the girl. She looked inside and saw her on the bed, under blankets. She recalls "another guy" in an adjacent bed on the other side of the room under blankets up to his chest. She recalled that the lights were off when the door was opened, did not see anyone turn the lights on, but that the light from the hall was sufficient to enable her to see the interior of the room. [190] She stepped into the room and testified that she asked the girl how her night was going and received a response "good", or "it's fine".

She then asked her "is everything okay?" And received an identical response. LB then, in her testimony, asked the girl, who was somewhat flushed and propped up in the bed by a pillow, "do you want to be here?" The latter responded “yes, I want to be here”. When LB told the girl that "your friends are worried about you", SH responded that her friends were "overreacting". The entire conversation lasted between four and five minutes.

At no point did the female attempt to leave the room or even stir from the bed. [191] LB testified that if she felt the girl on the bed was really intoxicated, she would have made her leave the room. Moreover, she would have done the same if SH had appeared uncomfortable about the situation,

[…]