R. v. PJB., 2019 NSSC 109

SUPREME COURT OF Nova Scotia Citation: R. v. PJB. , 2019 NSSC 109 Date: 20190425 Docket: CRH 464099 Registry: Halifax Between: Her Majesty the Queen v. P.J.B. DECISION Restriction on Publication:

Section 486.4 Criminal Code of Canada, R.S.C., 1985, c. C-46 486 By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner. The electronic version of this decision has been edited to remove information that could identify the complainant, including the names and personal information of the accused and the witnesses. Judge: The Honourable Justice James L.

Chipman Heard: Oral Decision: Written Decision: March 4, 5, 6, 7 and 21, 2019 in Halifax, Nova Scotia April 25, 2019 April 25, 2019 Counsel: Josie McKinney, on behalf of the Provincial Crown Ian Hutchison, on behalf of the Accused Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. By the Court (Orally): The Charge [ 1 ] PJB is charged by an amended single-count Indictment with unlawful sexual assault on NH, on or about the 26 th day of September 2015, contrary to s. 271 of the Criminal Code of Canada R.S.C. 1985, c. C-46 . Mr. B pled not guilty on June 8, 2017. Overview [ 2 ] On September 26, 2015, AB celebrated her 19 th birthday by hosting a party at the home of her father, PB.

Among the roughly 15 guests in attendance was one of AB’s best friends, 19 year old NH. [ 3 ] Mr. B attended the party and after all of the party-goers except him and Ms. H were gone or asleep, she alleges he sexually assaulted her. Mr. B admits the two engaged in sexual activity but that it was consensual. Ms. H says that she did not provide consent and as a result of drinking excessive amounts of alcohol was unconscious at various relevant times. The Trial [ 4 ] The Crown called AB, NH, another one of their friends and party attendee, GK, and D/Cst. Andrew MacVicar. The Defence called Mr. B and his wife, JB.

Five exhibits were entered by consent. The Evidence Detective Constable Andrew MacVicar

[ 5 ] D/Cst. MacVicar has been with the Halifax Regional Police for just over 15 years. He was the lead investigator in this matter which originated with NH's complaint. She was interviewed and provided a statement on December 15, 2015. The police then took statements on February 2, 2016 from AB, BB (AB’s mother) and GK. The accused provided a statement on February 3, 2016. Other party goers, KS and RG, also provided statements. [ 6 ] On cross-examination, D/Cst. MacVicar stated he provided Ms. H, Ms. K and AB with time to answer questions completely and they were not pressured to say anything. Ms.

H's clothing was not seized by police. Ms. H provided photographs to D/Cst. MacVicar which he included as part of the disclosure. LGK [ 7 ] Ms. K (d.o.b. [identifying information removed]) is 22 and has been best friends with NH since they met in elementary school. She became friends with AB while in junior high school and are now "distant friends”. [ 8 ] Ms. K attended Ms. B's 19 th birthday party which took place on September 26, 2015. She and her then boyfriend, M, arrived at some point after dark and they stayed until her parents picked them up around midnight. The party was at the home of AB’s father, PB.

She recalled Mr. B to have been perhaps in his mid-forties with the dozen or so others in attendance to all have been around her age. [ 9 ] Ms. K said the party involved drinking alcohol and that this mostly took place in the kitchen. She could not recall what she was drinking, other than it was "a mixed drink, maybe wine and possibly beer”. She saw NH right away and knew she had been drinking as she was very happy and "huggy" towards her. On cross-examination, she agreed NH was a "huggy" person by nature. Ms. K saw NH drink on a few occasions before; this was the drunkest she ever saw her.

She could not be sure what Ms. H was drinking. [ 10 ] Ms. K saw Ms. B and could tell she was drunk as she was talkative and happy. She could not say if PB was drinking. She recalled he was in the center of the kitchen during the party. [ 11 ] Ms. K had a couple of drinks. After a few hours, she observed Ms. H getting quite intoxicated and recalled Ms. H had to vomit. Ms. K and another woman took her to the washroom off the kitchen. After about five minutes in the washroom Ms. K's boyfriend picked her up and took her to the living room where she laid down on the couch. Ms.

K got her a bowl from the kitchen and she vomited into it. For the rest of the time at the party Ms. K said Ms. H remained on the couch adding that, "she might have got up one time". Before she left the party, Ms. K observed Ms. H up walking. She has no memory of her continuing to consume alcohol. [ 12 ] Ms. K was asked about any interaction between Mr. B and Ms. H and she said, "I think he might have kissed her on the cheek". She said he may have put his arm around her and "possibly" hugged Ms. H. On cross-examination she agreed she had no clear memory of specific events at the party.

She agreed that she was not alarmed by the physical contact she observed and that it was not noteworthy enough to have told her mother. On cross-examination Ms. K agreed she would not have left Ms. H at the party if she felt Ms. H was in a dangerous situation and could not look after herself. Ms. K did not encourage Ms. H to leave with her. [ 13 ] The next weekend Ms. K saw Ms. H at Ms. H's parents' home. She arrived around dinner time and slept over. Ms. H began to tell Ms. K what happened at the party and they then saw Mr. B through the basement window. He knocked or waved and she thought Ms.

H waved back; on re-direct she described a "nervous wave". Ms. K observed Ms. H and Mr. B having a perhaps five minute conversation on the porch. Next, Ms. H's parents went outside and had a separate conversation with Mr. B for quite awhile. [ 14 ] Ms. K learned from Ms. H that she was sexually assaulted by Mr. B. It was put to Ms. K on cross-examination that Ms. H told her when it was over that she "kinda rolled over and kinda hugged him". She recalled Ms. H told her she hugged Mr. B's leg; however, when Ms.

K's preliminary inquiry testimony was reviewed with her, she acknowledged her earlier evidence about a hug and agreed she made no reference to hugging Mr. B's leg. AB [ 15 ] By agreement the accused was shielded by a screen when [identifying information removed] , AB, testified. Ms. B (d.o.b. [identifying information removed]) is 22 years old. She is presently laid off from her job as a [identifying information removed]. Ms. B's parents, PB and BB, separated in 1999. Over the years she lived with one parent for 4-5 days and then the other for 4-5 days.

By 2015, she lived more with her mother in [identifying information removed] and less with her father who was living with his girlfriend, J, at his home in [identifying information removed]. Ms. B has never gotten along with J, who is now married to Mr. B. [ 16 ] Ms. B met NH in grade seven. They became friends and by grade ten, close friends. By 2015, Ms. B considered Ms. H her best friend. Over the years they had regular sleep overs but Ms. B did not think Ms. H ever slept over when she was staying with her dad. Between grades seven and 12, Ms.

B thought NH visited her a couple of times at her father's house. [ 17 ] Ms. B described the layout of her father's home and the details of the basement. On cross-examination she described steep stairs to both the basement and upper floor. Her birthday celebration was later than her actual birthday because [identifying information removed] Ms. B said she had gone through "a lot" and by the time of the party "wanted to get drunk with friends". Ms. H was one of the first to arrive. Mr. B was present then and throughout the evening. [ 18 ] Ms.

B agreed her father took pride in his home and was aware of whom she invited to the party. Ms. B was shown what was later marked as exhibit 2, a series of photos of the basement area of her father's home at [identifying information removed]. [ 19 ] Ms. B went over the guests' names and ages; approximately 12 people were between 18 and 20, with her father being the only person in his mid-fifties. Asked about his attendance she stated, "I kinda wanted him to go away but didn't want to hurt his feelings". Ms.

B bought a large amount of alcohol for the party and exhibit 1 was introduced, a photograph of all the bottles lined up on her father's kitchen counter. Referring to the bottles, Ms. B said she tried them all that evening. She recalled NH consuming wine and hard liquor. She said her father drank beer and hard liquor. On cross-examination she said he had a shot and his drink of choice is light beer. She did not know if her father served anyone drinks.

[ 20 ] Ms. B described the party, mostly involving drinking in the kitchen. Mr. B was there talking to her and her friends. She did not know her father's whereabouts throughout the evening. A few hours into the party, Ms. B went into the living room. At this point she described herself as "really drunk". Before she went to the living room, she recalled Ms. H "puked" and that she comforted her friend in the half-bathroom off the kitchen. She said her friend was woozy and became too drunk, too fast. Ms. B did not know where her father was when this was going on. [ 21 ] Earlier, Ms.

B said she saw her dad, NH and LGK having a conversation in the kitchen. She did not observe any physical contact between her father and NH. [ 22 ] On cross-examination Ms. B agreed she was the drunkest person at the party and too drunk to know what was going on. After being shown her preliminary inquiry testimony, Ms. B agreed she probably drank more than Ms. H. She agreed her father is a "very friendly, outgoing, sociable" [identifying information removed]. When she observed him interacting with friends at her party, she had no cause for concern. She had no memory of Ms. H being in the basement.

She recalled J leaving with the dog before the party got underway but had no memory of her returning. [ 23 ] After talking to her friends and listening to music in the living room, Ms. B said she and perhaps four friends went to sleep. At this point she did not know where Ms. H was. She thought her father was still awake when she went to sleep. [ 24 ] When Ms. B woke up on September 27 th she saw her father. She also recalled seeing Ms. H, who advised she had to leave. A couple of months later Ms. B invited Ms. H to another party but she declined as she said she had a project she had to complete. [ 25 ] Ms.

H told Ms. B what happened to her at the party when they were at Ms. B's mother's house in December, 2015. Ms. B became very upset and her mother called the police and an officer attended and had a conversation with NH. Since her conversation with Ms. H, she has not had any contact with her father. NH [ 26 ] Ms. H (d.o.b. [identifying information removed]) is 22. She has [identifying information removed] Ms. H met AB in grade ten and they became best friends. Between grade ten and 12, she estimated sleeping over at A's home perhaps once a month. She thought that this would include about five times at Mr.

B's residence. [ 27 ] Ms. H met PB in 2011; she recalled he kissed her forehead on this occasion. One time when she was over for dinner with AB, Mr. B offered her a glass of white wine at dinner and she accepted. She could not recall if AB was offered wine. She was 18 at the time. She occasionally drank alcohol with her parents beginning at age 17. She recalled her parents met Mr. B on one occasion before the alleged incident. [ 28 ] Ms. H described the layout of Mr. B's home and her evidence was consistent with Ms. B’s in this area.

She discussed the party, which she believed to have been on Saturday, September 26, 2015. She arrived at around 7:00 p.m. and was greeted by AB and LG. They poured drinks and went up to ABs bedroom to do their makeup. [ 29 ] Ms. H recalled she had her first drink around 7:00 p.m. This was a red solo cup with ¼ tequila and ¾ lime pop. She brought a bottle of light red sparkling wine and believes she consumed it all that evening. She had another mixed drink (like the first one) but did not drink it all. Ms. H also recalls drinking two shots of Jägermeister. On cross-examination she described the red wine as light.

She assumed she drank it all because she saw the wine bottle empty the next day. She agreed someone else could have finished it off. [ 30 ] Ms. H said she might have had a sip one of AB's drinks. It was put to her in cross-examination that she previously told the female police officer she had one large cup of tequila, two Jägermeister shots, one rum and one full glass of vodka; she agreed but, "then I thought more carefully, I came to correct myself". She added that by "coffee cup" she meant red solo cup. Ms. H acknowledged she told D/Cst. MacVicar of consuming different amounts of alcohol. [ 31 ] Ms.

H said the other guests arrived at about 8:30 p.m. About ten people, including PB, were in the kitchen between 8:30 p.m. and 10:00 p.m. drinking and listening to music. Mr. B approached her and asked if she would step outside on the deck. She did and once outside Mr. B asked, "may I kiss you?" She responded, "no, I'm sorry, I respect you”. They went back inside and Ms. H resumed partying and after awhile became "violently ill”. She recalled throwing up, crying and experiencing loss of consciousness in the small bathroom off the kitchen. She was comforted by GK, M and AB.

After awhile she went outside on the deck and recalls AB and her father sitting on either side of her and one of them providing her with a bowl to throw up in. She began to feel better but then lost consciousness. [ 32 ] Before she went outside with PB she said he had taken three shots of vodka and that he seemed to be in a good mood. She did not think J was home. She thought Mr. B had the three shots "anywhere between 8:30 p.m. and before I got sick”. She disagreed that he was sipping from a shot glass. [ 33 ] Ms. H said others were present when PB asked her to go out on the deck.

He said he wanted to ask her something and to look at the stars. She said she apologized for not kissing him because she did not want him to be upset with her. It made her nervous but she brushed it off. He seemed okay with her response. She said she was not feeling sick at this point. She estimated they were five minutes on the deck. [ 34 ] After she went back inside, she was standing by the kitchen sink when she felt sick. She ended up in the bathroom but cannot recall getting there. She vomited into the toilet and felt relief.

She vomited again outside but felt "quite terrible”. [ 35 ] At about 10:30 p.m. she remembered calling her father to see if he could locate her speaker and after about an hour, he advised her he could not find it. She has a clear memory of calling her father from the party. [ 36 ] Ms. H said that she was having fun in the kitchen and that a speaker was acquired to play music. When she was sitting on the

floor, she said she had no memory of sitting between PB's legs. She thought she became sick about 20 minutes after her outside discussion with Mr. B. She recalled speaking with her father before going out on the deck. She has no recollection of lying on the living room couch. She said there is a blank between her time in the bathroom and time back on the deck. When she regained consciousness, Ms. H was sitting on the kitchen floor against the cabinets. By this time, it was about 12:00 a.m. and she recalled AB being "severely upset" and that guests were starting to leave.

Others were going to sleep in the living room. At this point she recalled propping herself onto a kitchen chair and speaking to PB for a half hour to 45 minutes. While talking with him, Mr. B offered her two shots of Jägermeister, which she accepted. [ 37 ] While sitting on the kitchen floor Ms. H said she no longer felt sick. She was orientated and recalls the cold floor beneath her bottom. She was feeling better and sat down across from Mr. B. She said she “crawled” into a chair but agreed this was the first time she described her movement in this manner. She said her conversation with Mr.

B ended around 1:00 a.m., as she observed the stove clock. [ 38 ] When they had their conversation in the kitchen, PB sat across from her in a chair. They discussed a number of things and Ms. H was feeling better. Mr. B was sipping on a beer. When she drank the one ounce shots she felt "okay, quite happy”. [ 39 ] The one ounce shots were not forced upon her; she drank one after the other. They talked about life in general, the recent loss of their pets, AB and her [identifying information removed] boyfriend, Mr. B's concerns about AB's education as well as her own school situation.

She agreed she enjoyed talking with Mr. B while they were in the kitchen. [ 40 ] Ms. H denied watching movie videos with Mr. B on her laptop. She denied they discussed musical tastes. She agreed music may have been earlier discussed in the kitchen. She allowed that her music taste of liking "weird shit" sounded familiar in terms of the conversation. She disagreed that she proposed to Mr. B that they go downstairs to listen to music. [ 41 ] Ms. H said she asked Mr. B if it would be okay to watch a movie and she proceeded downstairs.

She sat down on the couch and was feeling quite nauseous as she tried to get the television to work. She got the Apple television remote to bring up Netflix and the movie, Sinister. At this point she heard footsteps and knew it was Mr. B. Ms. H started to feel "numb, tingling in my limbs”. [ 42 ] On cross-examination Ms. H acknowledged Mr. B did not have to help her out of the chair or provide any assistance. She said she "would have grabbed hold of the rail" on the stairway to the basement.

She made her way down the stairs without difficulty and sat towards the end of the left side of the couch. [ 43 ] On cross-examination she recalled "grasping" the handrail but later said she "lightly" touched the wood. When it was pointed out the handrail is only two feet at its highest point, she thought she may have touched the wooden frame encasing the stairs. [ 44 ] Ms. H had not been in the basement before. She asked to go there because she did not want to wake her friends sleeping in the living room. When she heard Mr.

B, she felt nervous and uncomfortable but reassured herself as he was AB’s father and a “nice person”. [ 45 ] Ms. H did not recall playing YouTube music on the Apple system but then said, "I may have played them”. She said it would take minimal effort to bring up the movie Sinister on the system but that dexterity and hand-eye co-ordination would be needed to bring up various bands and songs on the system. She denied conducting seven song searches downstairs, stating that the history would relate to playing on her phone or AB's phone. She disagreed that Mr.

B was downstairs at the same time as her when music videos were being played. Ms. H recalled details of the basement layout and what was stored there. [ 46 ] Mr. B had a beer and sat down beside Ms. H and put his arm around her. She felt, "more numb and not even able to speak properly and that is when I lost consciousness”. She regained consciousness to feel being pulled by her upper arms from the couch onto the floor. She was on her knees on the floor and saw "almost like a black fuzziness”. Mr. B said, "let me try something" and she heard his belt being undone and at that point lost consciousness.

Shortly after she regained consciousness she had a feeling of not being able to breathe. Mr. B was forcing his penis down her throat and she was choking. She tried to pull her head back but Mr. B had his hands in her hair and said, "choke on it you stupid bitch”. Later she said he may have said "choke on it you little bitch”. Ms. H blacked out and next recalls being on her back on the couch with a weight on top of her. She could recall Mr. B’s knee up over her leg. [ 47 ] On cross-examination she said when Mr. B put his arm around her that she experienced a sensation that led to loss of consciousness.

When she came to, she felt dragged off the sofa and then felt loss of consciousness again. When she came to for the third time, Mr. B was forcing himself upon her and having her perform oral sex. It was put to Ms. H that she told the police that Mr. B asked her to sit on the floor and she responded: "I felt as though it happened. The more I thought about it . . . I do not recall him saying anything at that point”. She added, "I was speaking in an inner monologue type of way . . ." and, "no, actually he did not say anything, he did not direct me in any way to sit on the floor.

Maybe it happened and I've forgotten since then”. Ms. H repeated she was "talking in inner monologue, I'm describing what I'm thinking and not saying out loud”. Ms. H then referred to notes she made "to clarify differences" in her preliminary inquiry evidence and statement. She denied lying on the sofa, grabbing Mr. B by the arm and telling him that her boyfriend raped her. She agrees she "lightly slapped" his hand away from unbuckling the belt buckle of her jeans. Ms. H was adamant she did not consent to any of the sexual activity. [ 48 ] Ms. H said her sweater was pushed back and her tank top and bra pulled up.

She said, "I originally thought my sweater was completely removed but it was there when I woke up”. Mr. B said, "I'm going to come on your chest”. She could not move or talk. Mr. B ejaculated on her chest and she blacked out again recalling Mr. B saying, "I'm going to bed now”. [ 49 ] Ms. H stated, "I didn't want this, I was terrified”. When she rolled over, she saw the (two hour movie) credits going across the screen. She cried and again lost consciousness. Ms. H then "dragged" herself up the stairs and noted the stove clock said 4:00 a.m. Everyone in the living room was asleep.

She went upstairs and heard snoring which she thought came from two people coming from PB’s bedroom. She went into AB's room climbed into bed and went to sleep until 10:30 a.m. She got up and spoke briefly with AB and Mr. B. Before she left Mr. B kissed her on the forehead.

[ 50 ] AB's bedroom is across from Mr. B's bedroom, a distance of six to eight feet. She did not take any safety precautions as she did not think Mr. B would attack her again. [ 51 ] Ms. H told four people on four separate occasions what happened with Mr. B. She first told GK on October 2, 2015 when GK was visiting her. As she was telling her in the basement of her parent's home, Mr. B "showed his head" in the basement window. This brought on panic and Ms. H went upstairs (with GK following) to greet him; she wanted to hear what he had to say. Mr. B had headphones with him and asked if they belonged to her. Mr.

B asked Ms. H to turn around and she obliged; she thought he wanted to read the back of her shirt. After about ten minutes of speaking with Mr. B, she went inside and her father, who had been out in the garage, had a lengthy conversation with Mr. B. [ 52 ] Ms. H subsequently told RG, her (then) boyfriend and AB. She did not recall telling GK she hugged Mr. B when the assault was over. [ 53 ] Previous to the party Ms. H said she had limited experience with alcohol and "never experienced alcohol to that degree”. On cross-examination Ms.

H said that prior to September 26, 2015 she had not experienced loss of consciousness. She has no clear memory of the assault coming to an end. She is not sure what caused her to come in and out of consciousness. [ 54 ] On cross-examination she said that she had no memory of telling the police Mr. B continued with the oral sex until he became bored. She said she remembers she was on the couch, and then had a loss of consciousness. Ms. H said she filled this blank memory gap with her inner monologue.

She elaborated that she was explaining what her thoughts were, noting, "My wording is odd and I can understand why you would ask me about it”. She said that Mr. B had not told her to get on the floor but that she "uses her words to describe actions . . . it's not actually a memory of me remembering”. It was suggested to Ms. H that she could not have been unconscious and that is why she has memories and she could not agree or disagree. [ 55 ] With reference to Mr. B saying, "I'm going to come on your chest; she said; "it's kinda where consciousness wavers in and out”. She was reminded of when she said Mr.

B said, "no, no, no" and responded, "nobody actually said anything," agreeing this was part of her inner monologue. Given other examples, Ms. H said, "I was narrating my inner thoughts of how this occurred. It looks strange in written format. It's the way I talk”. She allowed she had no memory of Mr. B placing her on the couch. [ 56 ] On re-direct she said she referred to a "fade out" in the past and that this means "not being able to see, not remembering”. [ 57 ] She described Mr. B as a "father figure" previous to the events in issue.

On cross-examination she agreed their relationship had been "respectful, kind and considerate”. She elaborated that the relationship was "nearing" a father-daughter relationship; she had the same relationship with GK's father. Ms. H had no problems with Mr. B's behaviour previous to September 26, 2015 other than when he kissed her on the forehead, albeit, this is something she knew he did with all of AB's friends. [ 58 ] On cross-examination Ms. H provided three pages of notes she made some time earlier. One of the pages (in dark ink) was prepared by Ms. H prior to giving her police statement.

The other two pages (mostly in red ink) were written by Ms. H to help her recall events. She thought the first of these pages was written before she met with D/Cst. MacVicar and on the date that appears in the top left corner - November 20, 2015. The second page she believes she wrote on a later date. Beside a note about the kind of alcohol appears, "really didn't drink that much," and Ms. H confirmed she feels that way regarding the night in question. [ 59 ] Ms. H agreed her inner monologue refers to the "verbal thoughts in (her) head”.

Asked about what she meant by speaking in a "strangled voice" after the alleged assault, she said this meant a "hoarse voice" and that all she recalls saying at this point is "wait”. Ms. H said she had no difficulty speaking with Mr. B in the kitchen but that she had "no ability" to speak with him in the basement. JB [ 60 ] Ms. B (d.o.b. [identifying information removed]) is 56 years old. Ms. B has worked as a [identifying information removed]. Beginning in 2001 she and PB became romantically involved; by 2015 they were no long intimate but “roommates”, with Ms. B keeping her own bedroom at Mr. B’s house.

Their relationship subsequently rekindled and they married on [identifying information removed]. [ 61 ] Ms. B does not get along with AB. When Ms. B became aware AB would be hosting a birthday party at PB’s house she was “not thrilled…. I don’t like pandemonium”. [ 62 ] In addition to having her own bedroom, Ms. B described her “own little living space” in the basement set up to watch television. She usually watched her 43” television (equipped with Netflix and YouTube) alone with her dog [name removed] up until the dog died in June, 2015.

Shortly after [the dog] died she and PB adopted a new dog, [name removed]. [ 63 ] Given her feelings about the party, Ms. B decided to leave the house at around 5 p.m. on September 26 th . She attended a wedding shower hosted by her mother at her residence in [identifying information removed]. She returned home between 9 and 9:30 p.m. and encountered music and noise. She had hoped the guests might be gone and when PB came up to her she said she “growled a little bit”. Ms. B found [her dog] running loose so she took her and went upstairs to her bedroom.

She decided to pack a bag as she did not want to be around the party. As she was leaving she saw Ms. H in the living-room, she thought laying on the couch, being sick. She described a “commotion” around her with perhaps PB and someone else beside Ms. H. Ms. B then left (around 10:30 p.m.) with her dog and drove around “racking my brain for a place to stay”. After exhausting possibilities, Ms. B returned to the home at about 12:30 a.m. [ 64 ] Once in the driveway she observed a “guy and girl” get into a car in the driveway; she assumed the young woman to be GK, whom she knew. Ms.

B then entered the house with [her dog]. She observed Ms. H, “still lying on the couch with M at her feet and PB there sitting by her head”. She recalled saying, “this is nice” to Mr. B and going upstairs with [her dog] to her bedroom. She has a memory of hearing dog food spill, using the washroom, closing her door and going to bed. [ 65 ] Exhibit 3 was introduced showing a picture of [her dog] on JB’s unmade bed at 9:20 a.m. on September 27, 2015. Ms. B said this was a screenshot from her phone and it is consistent with the time she got up that day. Upon dressing and going downstairs, she saw

AB and one of her friends on the living room couch. There was another person on the floor and when [the dog] nudged her, the person lifted the blanket and Ms. B observed that it was NH. She recalled that Ms. H waved and that Ms. H petted [the dog]. The two exchanged greetings and Ms. B took the dog out for a walk. [ 66 ] Ms. B was shown exhibit 2 and said PB took the 10 photographs of the basement a week or so before the trial.

She described the basement as “my living space” and provided details as to how she searched items on Netflix and YouTube. [ 67 ] She said exhibit 4 showed her history which she printed showing “what played [on her system] on the morning of September 27, 2015. Ms. B said she did not watch Sinister or the other movies shown. She added that PB was “not very techy” and could not use the system on his own. [ 68 ] Exhibit 5 was introduced through Ms. B which she described as “a search history of the videos they watched that night”.

She said she searched September 27, 2015 and noted that she would not have watched the items on the first page, noted as YouTube videos played between 3:50 a.m. and 5:58 a.m. [ 69 ] Ms. B reviewed the photographs in exhibit 2 noting the limited height of the stair rail, cookie tin containing her remote controls and steep sets of stairs in the house. On cross-examination she confirmed her practice to “always” keep her remotes stored in the tin. On cross-examination she said AB moved out of the house in May, 2015, such that JB then spent less time in the basement.

When shown exhibit 4 she agreed that before her system was used on September 27, 2015, she had last watched a movie on August 27, 2015. She said there was a 46” projection television in the living-room but that in 2015 her Apple television device was not compatible with it. [ 70 ] Ms. B said she found out about the sexual assault allegation just before Christmas, 2015. This occurred when PB’s ex-wife sent her a text informing her. Mr. B then told her he had sex with Ms. H. PB [ 71 ] Mr. B (d.o.b. [identifying information removed]) is 57 years old. He was 54 on September 27, 2015.

He has lived at his [home identifying information removed]for 21 years and paid off the mortgage in December, 2015. Mr. B has [identifying information removed]. When his now 33 year old daughter was 19 or 20 she had an unsupervised party and the family home was damaged such that Mr. B did not again permit unsupervised parties. [ 72 ] Mr. B has worked as [identifying information removed]. After separating from his wife, BL, Mr. B began a relationship with J in 2001. Over the years Mr. B described their relationship as “on and off”.

He described their relationship as one of being “roommates” in 2015 and then “back together” in early 2016 with an engagement and then marriage [in] 2016. [ 73 ] He agreed he re-kindled his relationship with J after the sexual assault allegation. He said he did not expect any future encounters with Ms. H and was “surprised and shocked” he was charged. [ 74 ] After separating from BL in 1999, they shared custody of their daughter, AB, who was then 3½ years-of-age. The arrangement involved 4-5 days on, followed by 4-5 days off. This continued for about ten years.

By May of 2015, AB moved out of her father’s residence but still visited and by times, stayed over. [ 75 ] Mr. B recalled meeting NH when she was in grade 10 with AB. He estimated that she had visited his house 15 times and stayed for 5 sleepovers between grade 10 and the September 26, 2015 party. He has no recollection of offering Ms. H wine at dinner; however, “I imagine I would have offered”. [ 76 ] Mr. B noted AB’s 19 th birthday to have been on [identifying information removed].

The birthday party was put off until September 26 th , a Saturday, because AB’s boyfriend [identifying information removed]. [ 77 ] Mr. B went through the party attendees, all of whom were around AB’s age and perhaps a third of whom he did not know. When AB put out all of the alcohol (which she bought) Mr. B said he was “shocked” by the amount. He did not expect excessive drinking at the party. Mr. B said he drank throughout the evening from perhaps 7:30 p.m. to 2:00 a.m.. He estimated he had 4-5 (12 ounce) cans of Coors Light beer and “a few sips” of a 1.5 ounce shot of tequila, which he did not finish.

He noted he weighed 200 pounds and said he was “fine” in terms of his state of mind. [ 78 ] Mr. B first saw NH standing in the kitchen at about 7:30 p.m.. They exchanged greetings and there was no physical contact. Mr. B sat on the counter in the corner of his kitchen with Ms. H perhaps 2 feet away and talking to her friends. Ms. H then moved so she was standing next to him with her hip up against him. Mr. B described Ms. H as “leaning” against him for about a half hour. He recalled she put her forearm on his thigh for 20 minutes. Next, Ms. H sat on the floor between where his feet were dangling.

She put her arms around his feet so that his feet touched her breasts. On cross-examination he said she “was being very close, I was confused by her actions”. At some point he said Ms. H went to the bathroom and he went outside to light the campfire he had set. Soon after, the two resumed their previous positions. He recalled his daughter pouring tequila shots and NH having one while he took a sip of his and laid it down. [ 79 ] Sometime later, AB poured two shot glasses of Jack Daniels and Ms. H drank one. Mr. B described a “joyful” atmosphere. There was a discussion about music and it was agreed Ms.

H liked “weird shit”. [ 80 ] Mr. B said Ms. H became sick at around 9:30 p.m. and he “barked out orders” to get her a bowl, towel and cold cloths. NH was on the couch and called him over. She grabbed him by the wrist and said she was sorry twice. Mr. B then stated, “she pulled me in close and said ‘P, my boyfriend raped me’ and I was shocked by that”. Not wanting to “get sucked into a misery pit”, Mr. B went back outside. [ 81 ] Around 1:00 a.m., Mr. B recalls a female guest telling him Ms. H wanted to talk to him. He followed her into the living-room and Ms.

H (who was on the couch), “repeated the conversation (about being raped by her boyfriend) and pulled me so close and had a

strange spooky voice…” He said she was dramatic when she said this, “putting on” a bass-like voice. He recalled seeing J at the end of the living-room and telling her Ms. H was sick. Mr. B said the party began to “fade out” and by 2:00 a.m. was shutting down. Counting AB, he estimated 3-4 were in the living-room with sleeping bags and the lights off. Mr. B tiptoed out. He was by the kitchen sink when he felt a hand on his arm. It was Ms. H, and the two proceeded to have a 15-20 minute conversation. Mr. B said they stood as they talked and “she was speaking as clear as a bell”.

He denied that either sat down in chairs or that he poured Jägermeister. [ 82 ] On cross-examination Mr. B acknowledged Ms. H repeated that she had been raped by her boyfriend and that when under the influence of alcohol, some people repeat themselves. He said that he saw no signs of intoxication in Ms. H later in the evening. He added that she had spent “four hours on the couch purging”; i.e., getting the alcohol out of her system. [ 83 ] Mr. B said it did not cross his mind to provide Ms. H with assistance. He recalled she was helped while on the couch and later that she was fine.

He denied that he refused to help her because she had rejected his advance on the deck. He also held to his version that he went to kiss her after she had been sick, adding that she did not have a “vomit mouth”. [ 84 ] Mr. B said he went outside and that Ms. H followed him. The two were leaning on the deck railing when he said, “this is going to sound radical, but can I kiss you”? He says Ms. H responded by saying, “that’s not radical … perhaps another time”. Mr. B thanked Ms. H for not making him feel “weird or awkward” and they went back into the house.

On cross-examination he agreed she was polite when she rejected him and that this was in keeping with her character. [ 85 ] On cross-examination he said he called this “radical” because of their age difference and that the kiss would be on the mouth. He said they had been “bonding” through their conversation and denied a sexual motivation. When it was brought to his attention that he told D/Cst. Willett in his statement that he asked for the kiss because of the touching that occurred in the kitchen, he said “that came out wrong”.

On reflection, he realized the officer was playing “good cop bad cop and flirting” in order to get him to say this. Mr. B asserted, “I was not looking for sex, I didn’t expect it from a 19 year old”. He denied that the ask for a kiss was going to lead anywhere. [ 86 ] Mr. B said throughout the night he observed Ms. H downing two 1.5-ounce shots and drinking from a 26-ounce bottle of what he described as a pink “watermelon, raspberry… homemade” mix. Mr. B agreed he was not by Ms. H throughout the evening so he could not be sure about how much she drank.

On cross-examination he acknowledged he had much more experience with alcohol than Ms. H. [ 87 ] Mr. B said he assumed the pink solution to be a cooler, albeit, he could not taste alcohol when he tried Ms. H’s drink. He admitted to observing Ms. H drink more than one kind of alcoholic drink and that an alcohol shot can “hit” a person later. He also agreed Ms. H is a thin “and trim” individual. [ 88 ] On cross-examination it was put to him that from his vantage point on the counter he could not have seen Ms. H drink, and he responded, “I guess I couldn’t have seen the level of the bottle”.

He was adamant, however, that late in the evening he saw “two fingers” left in the bottle along with two (somewhat full) solo cups on the kitchen island. [ 89 ] Once back inside he took Ms. H up on her offer to watch music videos. They did this on J’s laptop at the dining-room table. After a minute or two of watching the “very heavy, head-banging” videos, Ms. H suggested they watch downstairs so as not to keep the partygoers (who were now going to sleep) awake. Mr. B agreed and Ms. H followed Mr. B down the narrow stairway where the 43” television was located. Mr. B sat on the left end of the couch and Ms.

H got the videos up and running on J’s system. Ms. H “plopped down right next to me” on the couch so that her left side touched his right side. Ms. H got the same music video playing and Mr. B remarked, “this is crazy”. According to Mr. B, Ms. H then said, “it’s another time…. I’ll take that kiss now”. Mr. B tried to kiss her but “got an awful crick” in his back so he moved to the other end of the couch. At this point he said Ms. H straddled him and, “she kissed me real nice on my lips – a long kiss”. He says she then bit his lower lip and said “bitch, whore” to him. As he remarked, “whoa, rough stuff”, Ms.

H pulled her top and bra up at which point he put his hands around her back. As he sucked on her breasts, Mr. B moved his hands and touched her buttocks. At this point Ms. H asked him to take his hands out of her pants and he complied. [ 90 ] Mr. B says he pulled his shirt up and Ms. H bit one of his nipples. This hurt and he told her “to suck on it, not bite it off”. Ms. H then got up off of him and went to the far end of the couch. She folded her arms and said, “bitch”, adding that kind of thing drove her boyfriend crazy. [ 91 ] Mr. B recalled that Ms.

H played a couple of more videos before settling on what she described as her “favorite show”, Sinister. She then laid on Mr. B and he felt her breasts. Ms. H said that he must find her “boring” and he responded in the negative, adding, “I’m a 54-year old man touching the breasts of a beautiful 19 year old”. At this point he asked her if she wanted to perform fellatio and she obliged. Mr. B said he was “very wary of the issue of consent – would it be the subject of a future rant?” He said the prior sexual assault she told him about made him “very wary” of the issue of consent.

He added, however, that throughout “she was running the show… I was just along for the ride here… I did not force her to do anything”. He added that she appeared to be completely sober and at no time did she lose consciousness. He repeated that he turned his mind to the issue of consent and, “she was leading the way, calling the moves”. [ 92 ] On cross-examination Mr. B said he knew of one’s gag reflex in the context of placing his penis deep in a person’s throat. Due to their age difference, Mr. B said consent was on his mind all the while he was in the basement.

He added that he was aware of this issue because of news reports and because Ms. H had said her boyfriend raped her. On cross-examination he was taken back to his “misery pit” comment and denied it related to Ms. H being drunk. He said when she asked him to “gag” her that “alarm bells” went off in his head. He said he was concerned about a “future rant” because Ms. H might make a false statement to get attention.

He maintained that he did a six/one thousands count while she performed oral sex on him because he did not want it to go on too long and that he was being careful (in the context of not wanting her to choke). He denied saying “choke on it whore”. [ 93 ] Mr. B said that Ms. H again exposed her breasts and he masturbated into his left palm and at her invitation rubbed his ejaculate on her nipples. He then sucked on her nipples and after laughing together, Ms. H put her top back on. He says they agreed to be “nonchalant” when they would see one another again in the presence of others.

[94] On cross-examination he agreed the experience was enjoyable, “almost like a fantasy … it was surreal, something out of myexperience”. It was put to him that what he described was like a pornographic film and he replied, “ya, I guess I’ve seen movies likethat”. [95] Mr. B said they had an entirely consensual sexual encounter, albeit, he did not consent to being bitten on the nipple or havinghis “head shoved sideways”. [96] Mr. B says he followed Ms. H upstairs and that she went into the living-room and he went upstairs to bed. He slept alone inhis bedroom and awoke around 10:00 or 10:30 a.m. He saw Ms.

H lying on the living room floor on her device and they exchangedgreetings. [97] Five days after the party Mr. B visited Ms. H’s home to return headphones that had been left at the party. As he walked up thedriveway he saw Ms. H through a large pavement-level window. He knocked on the window and received what he described as “veryenthusiastic” reaction. Ms. H met Mr. B outside and told him that she did not own the headphones. The two chatted and then Ms. Hwent back inside. Mr. B then had a “long conversation” with Ms.

H’s father, who came out from his nearby garage. [98] He said he first learned of the allegation when his former wife called his house in December, 2015. Position of the Parties Defence [99] The Defence emphasises the process for assessing the evidence in R. v. W.(D.) (1991), (SCC), 63 CCC (3d)397 and says that Mr. B gave credible and straightforward evidence. They argue Mr. B spoke with confidence in providing detailedevidence on an explicit topic. The Defence submits that the totality of the evidence points to consensual sexual activity between twoadults and that Ms. H was conscious throughout.

As evidence that she was fully engaged the Defence asks the Court to consider Ms. H’srecall of the basement layout and her ability to navigate the steep steps with the low rail. They add that her detailed recall of herinteractions with Mr. B cannot be explained if she was intoxicated and coming in and out of consciousness. [100] They say that to convict Mr. B, Ms. H must be found credible and reliable but that on the evidence she is anything but.

Withrespect to her “inner monologue”, the Defence says it is very difficult to reconcile this evidence and that it is a very convenient way todescribe something that did not happen. In all the circumstances the Defence says the Crown has not proven beyond a reasonable doubtthe guilt of Mr. B. Crown [101] The Crown acknowledges that Ms. H has memory challenges but that when a victim is struggling to recall specifics, the Courtmust look to other corroborating evidence. They say that her “inner monologue” represents her manner of speaking and her way ofinternally saying “help”.

While acknowledging the Court has a “difficult task” in dealing with the inner monologue, the Crown says thewhole of the evidence supports Ms. H’s version. [102] The Crown accepts the W.(D.) lens is applicable to Mr. B’s evidence which they say must be treated very carefully. The Crownasserts Mr. B’s memory is subject to challenge and poses a number of inconsistencies. They argue that Mr. B went to great lengths topresent himself in the best light possible and that he was evasive and defensive in answering simple questions. [103] The Crown says there should be no doubt NH was intoxicated at the material times.

They say her evidence was not exaggeratedand that she testified in a forthright manner. On all of the evidence the Crown asserts Mr. B’s guilt is proven beyond a reasonable doubt. Governing Law Presumption of Innocence and Burden of Proof [104] The first and most important principle of law applicable to every criminal case is the presumption of innocence (see, forexample, R. v. Starr, 2000 SCC 40; and, R. v. Lifchus, (SCC), [1997] 3 SCR 320). Mr.

B enters the proceedingspresumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence, satisfies mebeyond a reasonable doubt that he is guilty. [105] The burden of proof rests with the Crown and never shifts. There is no burden on Peter B to prove that he is innocent. [106] A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involvedin these proceedings. Rather, it is based on reason and common sense.

It is a doubt that arises logically from the evidence or from anabsence of evidence. [107] It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standardwould be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than toprobable guilt. It is not enough to conclude that Mr. is probably guilty or likely guilty. That is not sufficient. In those circumstances, Imust give the benefit of the doubt to Mr.

B. [108] I must decide, looking at the evidence as a whole, whether the Crown has proved Mr. B’s guilt beyond a reasonable doubt. Reliability and Credibility

[109] In assessing the use of demeanor evidence generally to determine the credibility of the witnesses, I am mindful of JusticeBeveridge’s comments in R. v. W.J.H., 2018 NSCA 54: 45 First of all, courts have long recognized that reliance on demeanor must be approached with caution. It is not infallible and shouldnot be used as the sole determinant of credibility.

This was succinctly summarized by Epstein J.A., writing for the Court in R. v.Hemsworth, 2016 ONCA 85: [44] This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor ofthe accuracy of a witness's testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v.Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362.

As I indicated in Rhayel, at para. 85, "[i]t is now acknowledged that demeanour is oflimited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificialityof and pressures associated with a courtroom." [45] Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses,reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26.

Ofsignificance in this case is the further principle that a witness's demeanour cannot become the exclusive determinant of his or hercredibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman(1993), (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-14. [110] Other more reliable sources of evidence are more important than demeanor evidence. In this case we have a host of exhibits andviva voce evidence. [111] When it comes to the testimony I, as trial judge, decide how much or little I accept. I may believe some, none, or all of it.

Thetestimony of all witnesses must be considered in the context of the passage of time. The matters in issue date back approximately fouryears. Evidence of the Accused [112] As acknowledged by the parties, Mr. B’s evidence must be considered through the W.(D.) lens, as explained by JusticeBourgeois in R. v. N.M., 2019 NSCA 4: 23 I agree with the appellant's view of the import of J.H.S., 2008 SCC 30 at para. 11. In R. v.

P.D.B., 2014 NBQB 213, JusticeFerguson helpfully explains the modification of W.(D.): [67] The test outlined by Cory J. in W. (D.) is as follows, although I have incorporated the second assessment element arising from J.H.S.that was not part of the original three W.D. credibility evaluation guidelines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not know whether to believe the accused or a competing witness, you must acquit. Thirdly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Fourthly, even if you are not left in doubt by the evidence of the accused, that is that his or her evidence is rejected, you must askyourself whether, on the basis of the evidence that you accept you are convinced beyond reasonable doubt by that evidence of the guilt ofthe accused. (Emphasis in original) Sexual Assault Law [113] A person commits a sexual assault when without the consent of another person, he or she applies force intentionally to that otherperson, directly or indirectly in circumstances of a sexual nature such that the sexual integrity of "the victim", is violated (see s. 265(1)(a)and

(2) Criminal Code). [114]

Section 273.1 of the Code provides the "meaning of consent", specific to a charge contrary to s. 271. The relevant provisions tothe circumstances in this case read: Meaning of consent 273.1

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

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

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

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

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

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

(

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

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 1992, c. 38, s. 1. Where belief in consent not a defence 273.2 It is not a defence to a charge under

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

a) the accused's belief arose from the accused's (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that thecomplainant was consenting. [115] In R. v. Al- Rawi, 2018 NSCA 10, Justice Beveridge reviews the elements of sexual assault at paras. 19 and 20: 19 R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 is the seminal decision on the elements the Crown is required toprove in a sexual assault prosecution.

The decision cemented the demise of implied consent and reinforced the necessity of focussing onthe subjective state of mind of the complainant to determine if he or she did not consent to the sexual touching. 20 The actus reus of the offence is simply the intentional sexual touching of the complainant and the absence of consent. JusticeMajor, for the majority, wrote: [23] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed theactus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intentionto touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person beingtouched. ... [25] The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused'sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, andR. v.

Chase, (SCC), [1987] 2 S.C.R. 293. [26] The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mindtowards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), atpp. 437-38, aff'd (SCC), [1997] 1 S.C.R. 304, R. v. Park, (SCC), [1995] 2 S.C.R. 836, at p. 850, perL'Heureux-Dubé J., and D.

Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. [116] At paras. 33 and 34 our Court of Appeal notes as follows regarding the situation with a complainant who experiences loss ofconsciousness: 33 Of course, an unconscious complainant lacks the capacity to consent (R. v. Esau, (SCC), [1997] 2 S.C.R. 777; Rv. Humphrey (2001), (ON CA), 143 O.A.C. 151, at para. 56; R. v. Ashlee, 2006 ABCA 244, leave to appeal to S.C.C.ref'd, [2006] S.C.C.A. No. 415). 34 The Supreme Court in R. v.

J.A., 2011 SCC 28 reiterated this axiom--the definition of consent in s. 273.1 requires a complainantto be conscious throughout the sexual activity in question. Any consent given before loss of consciousness is inoperative.

But whatimpairment of cognitive ability short of loss of consciousness voids capacity to consent? [117] Justice Beveridge next reviews Supreme Court of Canada authority and notes the test for capacity to consent as follows at para.66: 66 Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, forwhatever reason, the complainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she could agree or decline to engage in, or to continue, the sexual activity. [118] At paras. 67-74, he goes on to provide helpful guidance in cases, such as this one, where consent and capacity to consent are liveissues: 67 In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond a

reasonable doubt that the complainant did not consent, or lacked the capacity to consent. As detailed above, these inquiries are entirelysubjective. 68 In R. v. Hutchinson, supra, the majority reasons penned by McLachlin C.J. and Cromwell J. helpfully suggest a two stepapproach. First, determine if the complainant consented, or at least, is there a reasonable doubt that she did not. If there is doubt that shedid not consent, determine if her consent was vitiated: [4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity.

The first step is to determine whether theevidence establishes that there was no "voluntary agreement of the complainant to engage in the sexual activity in question" under s.273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to considerwhether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which thelaw deems an absence of consent, notwithstanding the complainant's ostensible consent or participation: Ewanchuk, at para. 36.

Section273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s.265(3)(

a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(

d) and 273.1(2) (c)). 69 Difficulties present where the complainant, due to the ingestion of drugs or alcohol, truly has little or even no memory of theevent. Absent direct evidence from a complainant that subjectively she did not consent, the judge or jury frequently must rely oncircumstantial evidence to determine the absence of consent (see for example: R. v. J.W.M., [2004] O.J. No. 1295; R. v. Tariq, 2016ONCJ 614; R. v. Cedeno, 2005 ONCJ 91; R. v. Thurairajah, 2006 CarswellOnt 9699, 2008 ONCA 91; R. v. Anderson, 2010 YKSC 32;R. v. B.S.B., 2008 BCSC 917, aff'd 2009 BCCA 520; R. v. C.P., 2017 ONCJ 277; R. v.

J.M., [2003] O.J. No. 3493; R. v. J.R., (ON SC), [2006] O.J. No. 2698, aff'd, 2008 ONCA 200, leave to appeal denied, [2008] S.C.C.A. 189/231; R. v.Kontzamanis, 2011 BCCA 184; R. v. Meikle, 2011 ONSC 650; R. v.

Olotu, 2016 SKCA 84, aff'd 2017 SCC 11). 70 Where a complainant testifies that she has no memory of the sexual activity in question, the Crown routinely asks: "Would youhave consented?" Despite the potential to discount the typically negative response as speculation, the answer is usually received intoevidence, and depending on the reasons, may or may not have a bearing on the determination if consent or capacity to consent wereabsent (see for example: R. v. J.R., supra, R. v. B.S.B., supra, R. v. Olutu, supra, R. v. Meikle, supra at para. 45; R. v. Tariq, supra atpara. 70; R. v.

Esau, supra at paras. 4 and 91; R. v. Kontzamanis, supra at para. 31). For unknown reasons, this question was not put tothe complainant. 71 In any event, a trial judge is required to consider all of the evidence adduced at trial and direct his or her mind to making thenecessary findings of fact or mixed law and fact presented by the issues to be decided.

In doing so, the judge must not start with anypresumptions that certain types of witnesses are inherently credible or reliable, nor must the judge employ stereotypical myths or flawedassumptions. 72 There is, of course, the legal presumption that any accused is innocent of the accusation that he or she faces.

This legalpresumption can only be displaced by reliable and credible evidence that establishes beyond a reasonable doubt all of the essentialelements of the offence or offences charged. 73 A trier of fact is not to assess each piece of evidence individually on a standard of proof beyond a reasonable doubt (R. v. Morin, (SCC), [1988] 2 S.C.R. 345). Rather, the trier of fact must take into consideration all of the circumstantial evidencerelevant to any particular element. 74 When the evidence is entirely circumstantial, the judge must again consider all of the evidence.

If after considering that evidence,existence of the elements is the only reasonable or rational inference, the trier of fact should draw the inference that the elements, andhence guilt, have been established beyond a reasonable doubt (see R. v. Villaroman, supra at para. 41). If there are other reasonable orrational explanations inconsistent with guilt, the inference must not be drawn and the accused acquitted. Analysis and Disposition [119] In considering the evidence it is apparent that there are no witnesses to what transpired between Ms. H and Mr. B in thebasement on September 27, 2015.

Accordingly, the Court is left to consider the opposing accounts of the complainant and accused. Without question the two engaged in sexual activity and the critical question comes down to whether or not Mr. B had Ms. H’s consent. As our Court of Appeal recently confirmed, an unconscious complainant lacks capacity to consent. Here, Ms. H denies being a willingparticipant and says that at no time did she provide consent. Further, she has testified to going in and out of consciousness during thetime she says Mr. B forced himself upon her. Against this evidence, we have Mr. B’s testimony that Ms.

H in effect, led the way byinitiating and controlling their sexual activity. Further, Mr. B says that Ms. H was conscious and sober throughout. [120] At this point I pause to reflect on the backdrop of this case and am mindful of Justice Duncan’s apposite comments in R. v.Smalley, 2019 NSSC 32 at para. 242: 242 Each case presents its own unique challenges to assessments of credibility and reliability.

While there may often be commonfeatures such as the involvement of alcohol and relative youth, it would be wrong to generalize when sorting through the details oftestimony taken years later, about events that take far shorter time to occur than is spent questioning about them. In particular, it is notpermissible to make assumptions based on what might be the societal expectations of behavior -- each person's conduct must be assessedon the basis of what they did during the events that constitute the subject matter of the alleged offences.

This case exemplifies theimportance of these core principles. [121] In this case we have a relatively young complainant but a middle-aged accused. Much could be said about the thirty-five yearage difference; however, that is not the object of this decision. I note that once AB found out about her father having sexual relationswith one of her friends, she refused to have any further contact with him. Mr. B’s actions may have done irreparable harm to hisrelationship with his [identifying information removed] daughter.

[ 122 ] In assessing this matter I have considered all of the viva voce and exhibited evidence. Ms. H is clearly an articulate, intelligent young woman and she prepared for her testimony to the point of writing three pages of notes to assist. She was adamant that she had no interest in sexual activity with Mr. B, beginning when he asked her for a kiss. Of course, the matters in issue occur later in the evening (early morning); when covering the time in the basement, Ms. H’s evidence is far less easy to fathom.

In this regard, the Court is left to consider her evidence of fading in and out of consciousness and her testimony concerning her “inner monologue”. [ 123 ] The Crown acknowledged the Court would be left with a difficult task in assessing the inner monologue testimony. Indeed, when I review Ms. H’s evidence in this critical area, I am left with significant doubt as to the guilt of Mr. B.

I say this because the complainant herself could not be sure whether what she had to say when testifying about the sexual activity was what she said, saw, felt and/or heard, versus what her “inner voice” told her about what was transpiring. There is another concern with Ms. H’s evidence and this was highlighted by the Defence. Notwithstanding that she claims to have been significantly intoxicated and going in and out of consciousness, she is able to provide a detailed account of the sexual activity on the morning in question.

Her precise recounting of the events would seem a stretch if one were to accept that she was impaired to the point that she could not consent. [ 124 ] In all of the circumstances, I have concluded that it would be dangerous to convict Mr. B on the basis of Ms. H’s evidence. I would add that there is no evidence from the other witnesses called in this case which provides anything with regard to what went on in the basement. The evidence from Ms. K and AB concerning the earlier hours of the party and after the fact conduct the next day (in the case of Ms.

B) and on October 5, 2015, does not provide the Court anything of consequence. [ 125 ] When is comes to Mr. B’s evidence, I am mindful that it requires analysis through the W.(D.) lens. Although I question the veracity of all of what he said, I am left with a reasonable doubt. Further, on the basis of the evidence that I have accepted at this trial, I am not convinced beyond a reasonable doubt of the guilt of the accused. [ 126 ] Mr. B provided evidence that Ms. H consented, even led the way, and was not impaired by alcohol or unconscious during the material time.

Whereas I am confident from the totality of the evidence that Ms. H was inebriated and passed out due to alcohol consumption, the evidence does not support that she continued in this state into the early morning hours of September 27, 2015. During this time the Court is left with the conflicting versions of the complainant and the accused. Unfortunately for Ms. H, her evidence is significantly compromised by her “inner monologue” qualifier. In the result, it would be unwise and unfair to convict Mr. B.

Accordingly, I must conclude that the Crown has not discharged its burden of proving beyond a reasonable doubt Mr. B’s guilt. PJB, you are free to go. Chipman, J.