R. v. Alexander, 2022 NSSC 259

SUPREME COURT OF Nova Scotia Citation: R. v. Alexander , 2022 NSSC 259 Date: 20220906 Docket: CRT 508080 Registry: Truro Between: Her Majesty the Queen v. Jason Alexander Defendant Restriction on Publication: s. 486.4 & 486.5 of the Criminal Code DECISION Judge: The Honourable Justice Jeffrey R.

Hunt Heard: July 27, 2022, in Truro, Nova Scotia Decision: Charge: Written Release: September 6, 2022 s. 271 of the Criminal Code September 14, 2022 Counsel: Alonzo Wright, Q.C., Crown Counsel Scot Stanfield, Defence Counsel Restriction on Publication: s. 486.4 CC & 486.5 CC on any information that will identify the complainants or any witnesses, shall not be published in any document or broadcast or transmitted in any way. 486.4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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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).

Mandatory order on application

(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. Victim under 18 — other offences

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(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. Child pornography

(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. Limitation

(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. 2005, c. 32, s. 15 , c. 43, s. 8 2010, c. 3, s. 5 2012, c. 1, s. 29 2014, c. 25, ss. 22, 48 2015, c. 13, s. 18 2019, c. 25, s. 190 Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred

to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. By the Court(orally): Background [ 1 ] Jason Alexander stands charged with a single count of sexual assault against B.M. as follows:

THAT he, on or between the dates of June 1, 2019, and November 1, 2019, at or near Five Houses, Colchester County did commit a sexual assault on B.M., contrary to

section 271 of the Criminal Code of Canada . [ 2 ] The trial of this matter took place on July 27, 2022. The Complainant was the sole witness called by the Crown. As was his right, the Defendant chose not to give or call evidence. [ 3 ] These reasons will set out a

summary of the evidence followed by a discussion and application of the relevant law. [ 4 ] Before providing a

summary of evidence, I intend to give a statement of the core legal principles which underpin this entire proceeding. These include the presumption of innocence and proof beyond a reasonable doubt. Legal Principles [ 5 ] The fundamental protection in every criminal trial is the presumption of innocence. This Charter protected right is the foundation of our criminal justice system. It must be appreciated that this principle is not a slogan to be quoted and then forgotten.

It must remain central to the entire analysis to be conducted by the Court. [ 6 ] Running together with this presumption of innocence is the standard of proof against which the Crown evidence must be measured. To secure a conviction in a criminal case, the Crown must establish each essential element of the offence to the point of proof beyond a reasonable doubt. [ 7 ] This standard has rightly been called an exacting one. It is a standard far higher than the civil threshold of proof, being a balance of probabilities. The law recognizes various standards of proof depending on the nature of the proceeding.

The criminal standard towers above those other lesser standards. [ 8 ] The Nova Scotia Court of Appeal and Supreme Court of Canada have provided clear direction on the issue of what is meant by proof beyond a reasonable doubt. They have instructed as follows: • A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. • Even if it is believed the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances the Court must give the benefit of the doubt to the accused and acquit, because the Crown has failed to prove the guilt of the accused beyond a reasonable doubt. • On the other hand, it must be remembered that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so.

Such a standard of proof is impossibly high. • In short, if based on the evidence before the Court, you are sure that the accused committed the offence you should convict because this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. • It has to be remembered that the burden of proof never shifts to the defendant. This is irrespective of whether the defendant himself gives evidence. • In this case the accused did not testify. Whether a defendant testifies or not, at no time does the burden of proof shift to him.

The resolution of any criminal case does not turn on the Court picking which version of the facts it prefers or finds more believable. That would be to erroneously displace the burden onto the accused and would represent a fundamental misapprehension of the Court’s proper function. [ 9 ] On the issue of assessing the evidence of witnesses, the Court is aware of many cases which provide commentary with respect to the analysis of witness testimony. What we sometimes refer to as the “credibility” of a witness is really comprised of two distinct components of creditworthiness: 1. Honesty of recollection; and, 2.

Reliability of recollection. [ 10 ] Honesty speaks to the sincerity and candour of a witness’s evidence while reliability relates more to such factors as the witness’s individual perception, memory and clarity. Both sides of the equation – honesty and reliability – impact the credit that can be afforded to testimony. A judge may accept all, none or some of a witness’s evidence, depending on the findings. A judge may apply different weight to different portions of the evidence which it does choose to accept. [ 11 ] A foundation for reasonable doubt can be found in any witness’s testimony.

So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, it is found sufficiently credible and persuasive to meet the exacting burden of proof. [ 12 ] In assessing the credibility of testimony, I am aware of the factors which have been pointed to by courts as helpful to this process. On this point, I have found R. v. Farrar, 2019 NSSC 46 to be instructive. In any written version of these reasons, I would incorporate this very helpful overview. [ 13 ] In assessing the reliability and credibility of each witness's evidence, I have considered these factors:

a) honesty;

b) interest in the proceeding (but not their status as a party);

c) accuracy and completeness of observations;

d) circumstances of the observations;

e) memory;

f) availability of other sources of information;

g) inherent reasonableness of the testimony;

h) internal consistency, including consistency with other evidence; and,

i) demeanour, but with caution, as guided by caselaw. [ 14 ] It is my obligation to ensure that all these core principles underpin the entire analysis to follow. Evidence [ 15 ] This was not a testimony heavy case. The Crown produced a single witness, the Complainant, B.M. [ 16 ] I want to note that in offering this

summary of the evidence, I am not attempting to produce a transcript or recite back every single point covered in questioning. It is my intention to focus on central issues of relevance and elements necessary to put the Court’s conclusions in context. I have however considered and weighed all the testimony in reaching my determinations, even if not specifically set out and referred to separately. B.M. [ 17 ] The Complainant is currently 25 years old. She has lived in Truro for some time. She works in retail.

Her evidence was that she first became acquainted with the Accused over Facebook. [ 18 ] Initially they communicated through Facebook without physically meeting. Eventually they made an arrangement to meet in person. Her evidence was that Mr. Alexander picked her up from work one day. They hung out at the home of a friend of his and then at his mother’s home. From this point they began a dating relationship. [ 19 ] B.M. testified that she and Mr. Alexander continued to see each other. During this relationship they went a couple of times to a camper owned by Mr.

Alexander’s mother, located in Five Houses, Colchester County. It was on one of these visits that she says she was sexually assaulted by the Accused. [ 20 ] B.M. described travelling to the trailer with Mr. Alexander where they drank and did drugs. She said it was the first time she had consumed cocaine. She believed they both smoked it and snorted it. She described her level of intoxication as “8 or 9 out of 10”. [ 21 ] She described feeling very tired and moving from the couch located in the living room area to the bedroom where she fell asleep on the bed with her clothes on.

The questioning continued as follows: Q: And so, you fell asleep. What happened next? A: I woke up, and I was naked, and Jason was on top of me. Q: Jason was on top of you? What was he doing on top of you? A: He was having sex with me. Q: Did you consent to this? A: No. Q: What was your reaction when you...? A: I was freaking out, and I was trying to tell him to stop, and he wouldn’t. Q: And when you say, ‘trying to tell him to stop’, how were you trying to tell him to stop? A: I said no, please stop. Q: And what was Jason’s reaction to this? A: He didn’t listen, he just held me down and kept going.

Q: How did he hold you down? A: With his hands. Q: How long did this last? A: Like 10 minutes, I do believe. Q: And how did it end? A: He finished inside me and then got up and dressed. [ 22 ] Her evidence was that following this, Jason Alexander got up and dressed and went to the living room. She says she laid in the bed for a while. She said she was scared. She cried but eventually got up and dressed. [ 23 ] In her direct evidence she testified that she and Alexander later that day returned to Truro as she had to work the next day. In cross examination this sequence of events was challenged.

She agreed that in the past she had said that while Jason Alexander returned to Truro that day, she was left at the camper alone until he returned the following day and took her back to Truro for her work shift. [ 24 ] She was asked in cross examination to account for this change in her description of events. She testified that she was embarrassed to talk about the time she spent alone at the trailer because during that time she was feeling scared and depressed and engaged in cutting behavior.

She said her hurt and embarrassment over this causes her to try to avoid discussing it. [ 25 ] In further questioning the Complainant was asked about her contact with the Accused after the alleged assault. She testified that Jason Alexander subsequently apologized to her for these events and said he was sorry for what he had done. She stated that, at the time, she accepted his apology because she believed at the time that he loved her.

It was some time later that they broke up and some time again before she made her police statement. [ 26 ] I want to state that I have not weighed the supposed apology against the accused. That is simply too speculative and uncertain to have any real meaning. [ 27 ] I have taken note of the areas, explored in cross examination, where Defence counsel challenged B.M.’s recollection of events. These included: - As noted above, her account of the sequence of events, in terms of her return to Truro.

In cross she acknowledged that she spent the following day at the trailer despite, in her direct evidence, implying a much quicker return to town; - She was challenged on some aspects of her drug use with Jason Alexander; - The issue of whether, when she went to the bedroom in the trailer, she fell asleep or ‘passed out’ was explored; - She was challenged on the issue of whether she approached the police independently or if the police were prompted to approach her by the defendant’s ex-partner, K.M.; - B.M. was questioned on her imperfect recollection of the timing of the assault. [ 28 ] In addition to the above issues, a focus of the Defendant’s challenge to B.M. was based in a social media post she made on the Facebook page of Mr.

Alexander’s former partner, K.M. The ex-partner and Mr. Alexander share a child over whom there has been conflict. [ 29 ] After B.M. and the Accused broke up, B.M. became friendly with the former partner, K.M. At once point after the break-up, K.M. posted some very negative things on social media about Mr. Alexander. B.M. replied to the post with encouragement and saying that she had her back.

I have ignored the bad character implications of the postings, as well as bad character flavour of some other matters raised in questioning of B.M. (for example his having been on parole during his relationship with B.M. – an issue raised by the Defence in questioning of the Complainant). [ 30 ] With respect to the Facebook issue, the suggestion of the Defence was that her desire to help the former partner of the Accused led B.M. to make a false allegation against him.

B.M. denied this, saying she simply meant that she supported her friend, but this would not extend to making up an allegation. [ 31 ] B.M. did acknowledge that she and K.M. had discussed the alleged assault. She agreed that K.M. had encouraged her to go to the police with her complaint against Mr. Alexander. While acknowledging the encouragement from K.M., she testified that the allegations were only the truth. [ 32 ] The Defence challenged B.M. on other aspects of her memory and account. Some of these are touched on elsewhere in these reasons.

Offence of Sexual Assault [ 33 ] The evidence in this matter must be weighed in light of the elements of the offence alleged. For the accused to be found guilty of sexual assault, the Crown must prove beyond a reasonable doubt each of these essential elements: (

a) That he intentionally applied force to B.M.;

(

b) That B.M. did not consent to the force applied by the accused; (

c) That the accused knew that B.M. did not consent to the force applied; (

d) That the force applied took place in circumstances of a sexual nature. [34] As was said by the Supreme Court of Canada in R. v. S. (J.H.), 2008 SCC 30, at paragraph 6: ...It is for the crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred. It is not for [the accused] toprove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place, you must find himnot guilty. [35] The Defendant in this case did not give evidence.

However, as we know, an accused does not have to give testimony denyingthe allegations in order to assert his innocence. He is presumed innocent until that presumption is displaced by proof beyond areasonable doubt. [36] Case law is clear that the Court will assess all the evidence presented at trial under what has come to be known as the W.D.analysis (see: R. v. W.D. (1991), (SCC), 3 C.R. (4th) 302 (S.C.C.), as modified by necessity to account for the fact theaccused did not testify. I adopt the recent restatement of W.D. as given by the Nova Scotia Court of Appeal in R. v.

N.M, 2019 NSCA 4. [37] Aspects of the evidence proffered in the Crown's case, as challenged by the Defence, will be assessed againstthe principles established in R. v. W. (D.). [38] The Ontario Court of Appeal, in R. v. D.(B.), 2011 ONCA 51, made the following comments about the application of the test incases where the accused does not testify: 114 What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to caseswhere an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep.

Where, on a vitalissue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourableto the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trialjudge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vitalissue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonabledoubt as to the accused's guilt: see R v.

Challice. In that event, they must acquit. (emphasis added) [39] The Defence has argued that the accumulation of all the issues canvassed above, large and small, in totality must raise areasonable doubt with respect to reliability and otherwise render this an instance where it would be unsafe to register a conviction. [40] The Court must never lose sight of the fact that the accused is to be regarded as innocent until proven guilty on a criminalstandard. It is well established, that while the Crown always has the burden of proving the essential elements of the offence(

s) to acriminal standard, it is not required to prove every single piece of the evidence beyond a reasonable doubt: see R. v. J.E.W., 2013 NSCA19. [41] The Court of Appeal in R. v. Mah, 2002 NSCA 99, stated: ...the judge at a criminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the morelimited one of deciding whether the essential elements of the charge have been proved beyond reasonable doubt…the ultimate issue isnot whether the judge believes the accused or the complainant or part or all of what they each had to say.

The issue at the end of the dayin a criminal trial is not credibility but reasonable doubt. [42] There are a number of important points made in the Mah case. Simply determining that the Complainant is credible is notenough. And critically, the trier of fact must take care not to erroneously place a burden on the defence to explain a complainant’smotive. This would be an error in that it would remove the burden on the Crown and create an onus on the defence which does not existin law. Assessment and Findings [43] B.M. did not present as an overly sophisticated witness.

By this I mean she did not appear to me to be calculating in her mannerof testifying. She is not a person with a great deal of formal education. Her manner of testifying seemed clear and direct. I am veryaware of the case law directing that substantial caution should be exercised when evaluating witness demeanor in giving evidence. Butbearing in mind its limited use, her demeanor appeared to be genuine and indicative of someone attempting to give truthful evidence. [44] Sometimes witnesses have strategic memory lapses to avoid having to concede things. I did not observe that in theComplainant’s evidence.

In making these observations I have not lost sight of the issue she had with respect to the timeline after thealleged assault. That is a concern and I have carefully weighed how that issue impacts my view of her overall credibility and reliabilityon the essential elements of the offence. [45] B.M. did not give the appearance of a witness attempting to embellish her account. The evidence did not have that flavour. Insaying this, I am aware of the limits on weighing a lack of embellishment as a factor in credibility.

We have the advantage of theSupreme Court of Canada just having provided guidance on this issue in the case of R. v. Gerrard, 2022 SCC 13 (particularly the

cautions expressed at para. 4). [ 46 ] I did not detect that she had a different approach to answering questions from the Crown as opposed to the Defence. She did not parry with the Defence. I thought she was frank in cross examination in acknowledging any issues with her evidence. [ 47 ] I have assessed the circumstances related to the Facebook posting.

As noted earlier, the Defence submits that this is indicative of an intention on the part of B.M. to make up allegations against the Accused as part of “having the back” of her new friend, K.M. [ 48 ] The Crown says this is nothing more than one friend making a generic sort of expression of support for a social media friend. They say it is not evidence of any sort of intention to lie. [ 49 ] I do think we have to be cautious about jumping to a conclusion that because one female friend wants to support another in a dispute, that such support would take the form of a false sexual assault allegation.

A trier of fact would have to exercise real caution in not allowing any stereotypical thinking to impact the weighing process. [ 50 ] I have assessed how B.M. reacted to and responded to the challenge over this posting. I found her reaction to be genuine and her explanation believable. [ 51 ] The post is certainly not an explicit declaration of an intention to lie. It is, without doubt, an expression of support for K.M. in her dispute with Jason Alexander. It must be weighed together with all the facts and circumstances as part of the search for reasonable doubt.

It is an element of the overall consideration at the last stage of analysis to see if it contributes to a residual reasonable doubt, resolvable in favour of the Accused. [ 52 ] A further matter raised forcefully by the Defence is the issue of the Complainant’s testimony reflecting a change in the post assault timeline. She acknowledged truncating the post assault timeline, saying that she was avoiding a discussion of her having engaged in cutting behavior. This is obviously concerning.

Witnesses have to share all the relevant facts, even the embarrassing or hurtful parts. [ 53 ] Does this element of how the evidence unfolded mean that her account of the core elements of the assault is fatally undermined? I do not conclude that is the case. [ 54 ] The issue has caused me to weigh with care her overall evidence. On balance it is my view that her explanation does not mean her core evidence, that Jason Alexander forced intercourse on her, is fatally undermined.

It does, however, impact the weighing process, most particularly at the final stage of W.D. [ 55 ] The issue of the timing of her complaint was raised. I do not discount the complainant's credibility because she delayed complaint. To judge her credibility against discredited myths of what we think would be appropriate behaviour for a sexual assault complainant is not helpful. The supposed expected behaviour of the usual victim would not give me useful means of assessing this particular complainant. [ 56 ] The Defence has argued that B.M.’s memory is too impaired to allow the Court to safely rely on it.

I have assessed the specific issues pointed to. She does not have complete recall of everything that occurred. She was drinking alcohol and did consume drugs. It would have been incredible to me if she had claimed perfect recall. [ 57 ] B.M. did express a clear memory of waking up and finding the Accused having sex with her. She told him to stop. He would not. She was not shaken in her account of this core evidence. This evidence was forceful, and her account given in a genuine manner. [ 58 ] There were aspects of her evidence where she was challenged by the Defence.

It would not be unusual for a witness to experience some difficulty recalling details from a number of years previous. Case law and common-sense cautions that when assessing such evidence, the loss of peripheral details and matters of marginal relevance, and even a degree of inconsistent recollection about matters, will not be fatal to the assessment of credibility and reliability. It is also important to assess the difference between a true inconsistency and the mere adding of further detail between different accounts: see for instance some discussion on this issue in R. v.

O.B ., 1995 NSCA 220 . [ 59 ] I have assessed all the points raised by the Defence. In this process I have to bear in mind that the Defence does not have to prove anything but seeks only to raise a reasonable doubt on an essential element. [ 60 ] There are details on which the witness herself acknowledged that her recollection and account has altered. But as noted in caselaw, she is not to be held to an unattainable standard in terms of recollection.

We are dealing with human memory. [ 61 ] After having heard all the evidence in the case, and considered the testimony as a whole, the Court’s obligation is to weigh the totality in light of the applicable presumptions and burdens. [ 62 ] As the Supreme Court of Canada stated in R. v. Gagnon , 2008 SCC 51 , it can be challenging to describe exactly why the evidence of a witness has the marks of credibility. This case would be no different. I am also aware of the danger of making positive credibility findings based on neutral factors.

I have attempted to take account of this point in moving through the weighing process: see discussion in R. v. Cooke , 2020 NSCA 66 and R. v. Gerrard , 2021 NSCA 59 . [ 63 ] The overall evidence given by the Complainant was compelling. As I noted earlier, she was a simple, not sophisticated, witness. I believe that she was attempting to give a full and truthful account of the events – with the caveat that she did seek to avoid discussing the cutting behavior.

She was not zealous or over-reaching in her testimony. [ 64 ] I find her to be giving a credible account when she says she woke up and the Accused was having intercourse with her. I believe that she told him that she wanted him to stop, and he would not.

[ 65 ] Having seen her and observed the testimony and having seen her challenged by experienced counsel in cross examination, I found her credible with respect to her account of non-consensual sex, where she was asking Jason Alexander to stop. [ 66 ] However, even having found her credible, I have gone on to consider whether any weighing of the evidence or any lack of evidence, taken as a whole, leaves me in any residual reasonable doubt. Conclusion and Disposition [ 67 ] I believe the evidence of B.M. She was clear, powerful, and compelling when describing the forced sex and her reaction to it.

Clearly, she was not a perfect witness. Few witnesses are. She had consumed intoxicants on the night of the assault. It has impacted her recollection. [ 68 ] Does a witness require perfect recall before their testimony is capable of being accepted? I do not believe that is the case. The issue to be determined is the accuracy and reliability of the memory as it pertains to the essential issues to be determined. Intoxication can and sometimes does, depending on the circumstances, fatally undermine a Court’s ability to rely on a witness’s testimony.

It is case dependant. [ 69 ] In this case, B.M. consumed intoxicants and ended up asleep. On waking, the Defendant was having sex with her. [ 70 ] I believe her evidence that she told him to stop, and he did not. She did not consent to the sex that took place. Jason Alexander forced intercourse on her. She tried to get him to stop. He ignored her and continued with the act. [ 71 ] This was intentional touching in circumstances of a sexual nature. B.M. did not consent to this.

Jason Alexander intentionally carried on with his actions, having sex with her, despite her efforts to have him stop. [ 72 ] Having considered all the evidence and having weighed any gaps in the evidence for reasonable doubt, I find the Crown has satisfied its burden of proving, to the required standard, the essential elements of the offence of sexual assault as reflected in the Indictment. [ 73 ] Accordingly, the Accused is found guilty on the single count before the Court. [ 74 ] Counsel, with respect to sentencing? Hunt, J.