HIS MAJESTY THE KING - v. –, 2023 SKKB 73

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 73 Date: 2023 04 10 Docket: CRM-SA-00156-2022 Judicial Centre: Saskatoon BETWEEN: HIS MAJESTY THE KING - and – MORGAN LESLIE KENNEDY PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Aaron D. Martens for the Crown Meagan J.

Bortis for the accused ___________________________________________________________________________ JUDGMENT MORRALL J. APRIL 10, 2023 ___________________________________________________________________________ Introduction [ 1 ] The accused, Morgan Leslie Kennedy, was charged in an Indictment dated May 19, 2022, and pled not guilty to the following two counts: THAT HE, the said Morgan Leslie Kennedy, at or near Saskatoon, in the Province of Saskatchewan did: Count #1: on or about January 2, 2021, commit a sexual assault on T.W., contrary to

section 271 of the Criminal Code ; and

Count #2: on or about February 19, 2021, commit a sexual assault on T.W., contrary to

section 271 of the Criminal Code. [2] On March 10, 2023, in court, I gave my decision.

These are the written reasons. [3] To better organize this judgment, I have divided it into the following sections: ITEM PARAGRAPHS Introduction .................................................................................................................... 1-3 Reasonable Doubt and Assessing Credibility .............................................................. 4-17 The Evidence at Trial ............................................................................................... 18-199 A.I. .............................................................................. 20-29 Examination-in-chief ......... 20-24 Cross-examination ............. 25-28 Re-examination ....................... 29 T.W............................................................................... 30-80 Examination-in-chief ......... 30-55 Cross-examination ............. 56-78 Re-examination ................. 79-80 K.W. .......................................................................... 81-108 Examination-in-chief ......... 81-97 Cross-examination ........... 98-107 Re-examination ..................... 108 C.W. ........................................................................ 109-135 Examination-in-chief ..... 109-121 Cross-examination ......... 122-135 Morgan Kennedy ..................................................... 136-199 Examination-in-chief ..... 136-176 Cross-examination ......... 177-199 Position of the Parties.............................................................................................. 200-205 The Actus Reus and Mens Rea Required for a Charge of Sexual Assault.............. 206-212 Analysis .................................................................................................................. 213-256 Reasonable Doubt and Assessing Credibility [4] Before reviewing the evidence given at this trial, it is important to keep in mind six crucial conceptsapplicable to evaluating the evidence presented in a criminal trial.

These concepts may be obvious, but they bear repeating. [5] Firstly, the Crown bears the burden of proving guilt in relation to these offences beyond a reasonable doubt.This standard of proof applies to the Crown’s onus to prove each element of the offences in question and to disprove any availabledefences.

I must consider the evidence as a whole when deciding whether the Crown has proven its case beyond a reasonable doubt. (SeeR v Morin, (SCC), [1988] 2 SCR 345 (QL) at paras 36-41). [6] Secondly, the Crown is not required to prove any particular fact beyond a reasonable doubt except insofar as itis tied in with proof of an element of the offence or disproof of a defence. (See R v Morin, 2021 SKCA 3 at para 17.) [7] Thirdly, in terms of understanding the reasonable doubt standard, the Supreme Court has provided the

following guidance in R v Lifchus (SCC), [1997], 3 SCR 320 at para 39: 39 Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given alongthese lines: The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [8] The decision of R v Starr, 2000 SCC 40 at para 242, [2000] 2 SCR 144, further indicates that the reasonabledoubt standard “falls much closer to absolute certainty than to proof on a balance of probabilities”. [9] Fourthly, having regard to the fact that the reasonable doubt standard applies to the assessment of credibility ina criminal trial, the Supreme Court in R v W.(D.), (SCC), [1991] 1 SCR 742 at 757 [W.(D.)], sets out a suggestedformula for this assessment where an accused testifies: … A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [10] This instruction was qualified in R v J.H.S., 2008 SCC 30, [2008] 2 SCR 152 [J.H.S.], where the Courtrecognized that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused” (para.10).

If Icannot decide whom to believe, the accused is entitled to an acquittal. In other words, I must not treat conflicting testimony as acredibility contest in deciding whether to accept one version or the other. As noted in para. 13 of J.H.S., the lack of credibility on the partof an accused does not equate with proof of his guilt beyond a reasonable doubt. [11] Fifthly, the credibility assessment that has been previously referred to means the assessment of two qualities of awitness’s testimony: their credibility and their reliability.

As stated in the decision of R v G.F., 2021 SCC 20 at para 82, 459 DLR (4th)375 [G.F.]: 82 Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding therelationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility,equating reliability with the witness' ability to observe, recall, and recount events accurately, and referring to credibility as the witness'sincerity or honesty: see, e.g., R. v. H.C. 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

However, under a functional and contextualreading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and“reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factualcontext of the case, including truthfulness and accuracy concerns. A trial judge's determination to accept or believe inculpatory witnessevidence includes an implicit assessment of truthfulness or sincerity and accuracy or reliability: Vuradin [2013 SCC 38, [2013] 2 SCR639], at para. 16.

Often, the term “credibility” is used in this broader sense to mean the believability of the evidence and it necessarilyincludes both truthfulness and accuracy: McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 3, at pp. 30-1 and 30-2.For example, Black's Law Dictionary (11th ed. 2019), at p. 463, defines credibility as “[t]he quality that makes something (as a witnessor some evidence) worthy of belief” and model jury instructions include both truthfulness and accuracy within “credibility” assessments:G. A. Ferguson and M. R.

Dambrot, CRIMJI: Canadian Criminal Jury Instructions (4th ed. (loose-leaf)).

Provided trial judges turn theirmind to these considerations, there is no requirement that they utter the word “reliable”. [12] Reliability involves assessing things such as the witness’s capacity to observe, the witness’s condition whenmaking the observation, the significance of the event, whether the witness’s evidence about what they saw has changed over time andhow the witness’s evidence on the observation fits or is in harmony with the other evidence in the case, amongst other indicia. [13] Credibility involves assessing the external and internal consistency of the witness’s evidence, the witness’scharacter for truthfulness, the inherent plausibility of their testimony as well as demeanor, amongst other characteristics. [14] In relation to demeanor, the Supreme Court has affirmed it is a factor to consider when assessing credibility.

As

stated in R v N.S., 2012 SCC 72, [2012] 3 SCR 726: 25 Covering a witness's face may also impede credibility assessment by the trier of fact, be it judge or jury. It is a settled axiom ofappellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (and juries) have the“overwhelming advantage” of seeing and hearing the witness — an advantage that a written transcript cannot replicate: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 24; see also R. v. White, (SCC), [1947] S.C.R. 268 at p. 272; R. v.W.(R.), (SCC), [1992] 2 S.C.R. 122 at p. 131.

This advantage is described as stemming from the ability to assess thedemeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination. … 27 On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial.Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accuratecredibility assessment.

But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence. [15] However, while demeanour can be considered in assessing a witness’s credibility, it should only play asupporting role and must not overtake the need to deal with other difficulties in a witness’s evidence. As noted in R v Hemsworth, 2016ONCA 85 at paras 44 and 45, 334 CCC (3d) 534: [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, relianceon demeanour must be approached cautiously: see R. v.

S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726 at paras. 18 and 26. Of significance inthis case is the further principle that a witness's demeanour cannot become the exclusive determinant of his or her credibility or of thereliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377 (Ont. C.A.), at para. 131; R. v. Norman (1993), (ON CA), 16 O.R. (3d) 295 (Ont. C.A.), at pp. 313-14. [16] Sixthly, it is important to note that pernicious myths will not play a

part in assessing the testimony of theaccused, complainant or other witness. Some examples of myths are noted by the Supreme Court as follows: 1) a person cannot consent in advance to sexual activity that is expected to occur at some point in the future: R v Barton, 2019 SCC 33at para 99, [2019] 2 SCR 579 [Barton]; 2) consent cannot be implied by a pre-existing relationship between the accused and complainant: R v J.A., 2011 SCC 28 at paras 47and 64, [2011] 2 SCR 440 [J.A.]; Barton at para 98; and 3) consent can be revoked at any time: J.A. at paras 40 and 43-44; see also s. 273.1(2)(

e) of the Criminal Code, RSC 1985, c C-46. [17] I also take into consideration the following commentary in R v D.D., 2000 SCC 43 at para 65, [2000] 2 SCR275: 65 A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma likea sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will neverdisclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding andknowledge.

In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in thefactual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against thecredibility of the complainant. The Evidence at Trial [18] The Crown filed Exhibit P-1 at the commencement of these proceedings, which was an Agreement as to Factsdated February 10, 2023 that was consented to by defence counsel.

As a result of this agreement, the following facts were admittedbetween the parties: 1. date and jurisdiction; 2. on both dates, the accused and the complainant engaged in sexual acts; and 3. identity. [19] In outlining the facts, I will use the first names of all the witnesses, not out of familiarity or disrespect, but so asto easily differentiate between the individuals as several of the witnesses have the same last name. I will review some of the salient factsbut will not reiterate every detail.

A.I. [20] A.I. testified during direct examination that she was friends with Morgan Kennedy [Morgan], T.W. and hersisters, K.W. and C.W. She has known them for about the last 10 years. [21] She recalls an incident when they were all drinking together at Morgan’s residence in the City of Saskatoon inFebruary 2021. She remembers arriving around midnight, at which time T.W., K.W., C.W. and Morgan were already there. She believes

no one else was there. All five of the individuals at the party were socializing together except when some would take breaks to smoke. Some individuals were smoking marijuana, but she was not. When she left the party, she felt she was about a 5 out of 10 on the intoxication scale, with 1 being sober and 10 meaning extremely drunk. She thought that T.W. and Morgan were also about a 5 on that scale, with K.W. being about a 5 or a 6 and C.W. being the least intoxicated at a 2 or a 3. [ 22 ] In describing anything unusual at the party, she remembers noticing Morgan and T.W. being missing from the party.

She does not remember how long they were missing but would ballpark the amount of time that they were gone being 20 to 30 minutes. She went upstairs to Morgan’s room with C.W. to check but were not able to enter, although she did not know if this was because the door was locked or not. They stayed by the door for about a maximum of a minute but did not hear anything inside the room. She noted that it was quieter upstairs, and the music was muffled. [ 23 ] After returning downstairs to the party, she noticed thereafter that T.W. was quieter, more reserved and not her usual bubbly self making jokes.

It did not appear that T.W. was tired but that she was not enjoying herself anymore. She does not remember any unusual behaviour between T.W. and Morgan after that time. When they left the party in A.I.’s vehicle, T.W. started to cry, was noticeably upset and said something happened between her and Morgan (the Crown clarified that this statement was for narrative purposes only). She did not see any injuries on T.W. [ 24 ] She specified that T.W. was initially quiet when she got in the car but became really upset, seemed shaken and was crying quietly.

A.I. tried to comfort her and drove T.W. and K.W. to K.W.’s residence and dropped off K.W. and T.W. She did not leave immediately but stayed for about half an hour and had a smoke break with T.W. and K.W. During the ride, she noted that T.W. was still on and off crying. After dropping them off, she went home to bed. [ 25 ] During cross-examination, A.I. agreed that she arrived at Morgan’s residence alone about midnight and did not drink before she got there. While she only smokes cigarettes, she saw T.W. smoke marijuana.

She agreed that she may not be completely accurate in assessing her friend’s drunkenness visually. She then describes the layout of Morgan’s house where the party took place and noted that Morgan’s bedroom was on the main floor and that everyone at the party was drinking downstairs with the smoke breaks taking place out the side door. [ 26 ] She then said that at one point she saw T.W. and Morgan alone and standing close together in the boot room area, but they separated when she got there.

She agreed that nothing seemed out of the ordinary at the party and that neither T.W. nor Morgan seemed angry or upset. [ 27 ] She then reiterates how long she believes Morgan and T.W. were missing at the party and what happened when she and C.W. went to look for them. She added that when they did not find either T.W. or Morgan, they then messaged the group chat that all the individuals belonged to. She said that while there was music in the basement, that you could have a normal conversation upstairs. At this time, there was nothing to indicate to her that anyone was in trouble.

When she saw T.W. at the point where she came back down after being upstairs, she reiterated that she was quieter and more reserved, but there was no indication that she was physically crying. She thought she just wanted to go home. When Morgan came downstairs, he was acting the same as before, which she described as his happy, friendly, normal self. [ 28 ] When A.I. was driving T.W. and K.W. home after the party at 3:00 or 4:00 in the morning, T.W. was in the backseat on the passenger side and A.I. noticed her crying through the rear-view mirror and she started asking what happened.

While she cannot remember exactly what she said, A.I. got the impression that T.W. was upset. She also agreed that some of her lapses in memory were probably due to the fact that she had been drinking. Previously, when she and C.W. went to Morgan’s bedroom door and did not see who was in the bedroom, she agreed that she was not overly concerned. [ 29 ] In re-examination, A.I. clarified that she noticed T.W.’s tears in the car before she had started driving as it was 10 minutes between the time she started the car and then drove away. T.W. [ 30 ] The next witness called by the Crown was the complainant, T.W.

In direct examination, she indicated she was born [redacted], 2002 and was close to both her older sisters, being K.W. who was 28 and C.W. who was 30. She knows Morgan because he was a friend of both her sisters and in their friend group. She first became aware of Morgan in 2018 when she was 15 and initially she was not very close to him, although there were sometimes when they would party together.

She began to see Morgan more often when she would be babysitting C.W.’s children and thereafter after she turned 18. [ 31 ] In early December 2020, after freshly turning 18, Morgan began private messaging her on Facebook and calling her pretty as well as complimenting her body. This continued until the incident in February.

Initially, she said that they did not really interact between the December and February period because they both knew it was wrong as she was just 18 and she did not want to ruin the friendship he had with her sisters. [ 32 ] T.W. then describes the February 2021 party which she initially says happened in early January 2021. She also admits that her memory is not that great. She then gives a concise version of the initial events of February 2021, although she is unable to place it in time.

She stated that they were drinking in Morgan and her cousin D.W.’s basement, and that during that time Morgan told her to meet him upstairs and she went and made out with Morgan. [ 33 ] She indicated that the attendees at the party included K.W., C.W., Morgan, A.I. and herself, although she allows that one of Morgan’s friends could be there, but she does not recall his name. They all agreed to drink, picked up wine and soju and had a good night. Morgan messaged her again and she went upstairs and kissed him. However, her sisters came in from outside after having a cigarette and they stopped immediately.

After the kissing stopped, he went to the bathroom. [ 34 ] She then said that two hours later Morgan sent a message saying “round 2” and she sent him the “eye emojis” and she went upstairs again. They kissed again and he moved his hands over her body, including her bum, chest and neck, but this

stopped shortly after. She indicated that she was feeling like she should not be doing this. [ 35 ] At closer to midnight to 2:00 a.m., Morgan messaged her that he was upstairs. She went upstairs and he put on a two-minute timer and told her that whatever they were going to do they had to do it quickly. During that time, they were kissing only. After the timer went off, she thought that they were done and when she sat up, he sat her back down and asked her to give him “oral”. T.W. did not want to but he “kind of” forced her head down to his penis.

During the act, she used her teeth so he would be uncomfortable. [ 36 ] He then laid her down and told her to take off her pants, but she did not want to. He ripped down her pants, told her to spread her legs, forced them open and shoved his penis into her vagina. She tried to remove him from her, but he was too heavy and when she heard people coming upstairs, she told him to “hold on”, got the strength to push him off her, and held the door closed so no one would come in. She was shaking and scared.

After the people left, she, in a hurry, put on her underwear backwards, asked if Morgan was coming downstairs and after he said no, she called him a “fucking asshole”. She went to the bathroom and noticed the toilet was filled with blood. It looked like she was on her period but worse. She then cleaned herself up and went back downstairs. [ 37 ] After she went downstairs, Morgan came down 10 minutes after and was touching her leg and she was shaking her head no to stop him from doing that.

Prior to going home, she went outside to have a smoke and told A.I. that “Morgan did something to me” and that she was bleeding but did not want to say anything else or tell K.W. when she came outside at that time. She then grabbed her bong as she was gathering her items to leave. Morgan was hiding the downstem piece of her bong so that she would have a reason to come back. She told him that she was not going to come back. When they jumped into A.I.’s car and started going home, she told A.I. and her sister, K.W., what happened during the ride.

K.W. became very angry and started calling Morgan and Morgan told K.W. what T.W. said was made up and she was saying it for attention. (The Crown also noted that this passage was relied on for the narrative only). [ 38 ] At this point, various points were clarified and expanded upon during direct examination. [ 39 ] She indicated that prior to the party they picked up a Korean alcohol called soju and that while she was the only one smoking marijuana, everyone, including her, was drinking alcohol at the party. [ 40 ] She then spoke about how the first message to go upstairs from Morgan came about two hours after she got to the residence.

At that point, they only engaged in kissing, which lasted a minute or two in length and occurred upstairs in the hallway by the bathroom. It ended because one of her sisters walked in for a cigarette. [ 41 ] With respect to the “round 2” message, T.W. indicated it happened about an hour after the first message and that the words “round 2” from Morgan were accompanied by the “eyes emoji” which she sent back with her own “eyes emoji”, which indicated okay.

She indicated that she went to the same place as where the first contact occurred and that the kissing continued, that Morgan moved his hand over her clothes to her bum and chest area, and then gently to the front of her neck. The contact lasted again for one to two minutes. It continued when her sisters were outside for a cigarette and stopped when they came inside. [ 42 ] With respect to what she believes was the third time she and Morgan had an encounter, she remembers A.I. walking in on her while she and Morgan were kissing and he had his hands down her pants and that they stopped right away.

She does not remember how this occasion commenced. [ 43 ] She stopped drinking and consuming anything that night after she found out she was bleeding. [ 44 ] On the scale of intoxication, T.W. said she was about a 6 and not that drunk. She was not sure how drunk Morgan was, although she is sure that he was not acting sober, as he was being funny and loud and that K.W., C.W. and A.I. were about as drunk as her but “not too drunk”.

She indicated that she was a willing participant for the first three incidents of contact with Morgan. [ 45 ] With respect to the next period of contact between Morgan and T.W., she stated that he texted her that he was in the room waiting for her. She was unsure how long after the third period of contact that this occurred. She was hesitant to go back up, but she went upstairs anyways without telling anyone she was going to his room, which was dark.

She shut the door, sat on the edge of the bed, and Morgan put on a two-minute timer on his Apple watch and said that whatever she was going to do, she had to do it quickly. They just kissed during that time on the bed and when the timer went off, T.W. thought that they were done, however, T.W. stated that Morgan had other plans. During this time, T.W. said she was clothed but Morgan just had his shirt on and underwear and was not wearing pants. Morgan then said he wanted head, so he pushed her head down to his penis “pretty forcefully”. At this point, he had pulled his underwear down. That act did not last long.

T.W. was trying to make it harder for Morgan by keeping her pants up and her legs closed. She opened her mouth so that she used more teeth and was focused on trying to get out of the situation. [ 46 ] T.W. then said that Morgan told her that he would put it in real quick, to which she responded, “I don’t know”. His response to this was to lay her down and he told her to take off her pants. She did not so he forced them off and her legs open with his arms. During this occasion, she said she kept telling him to wait, to hold on, that someone was coming, and “I don’t know” but he would not stop.

He said nothing in response as he was not talking. She also blocked her vagina with her hands, and he used his hands to move her hands out of the way. [ 47 ] After a repeated struggle moving her hands, he then shoved his penis inside her vagina. She was unable to say how long he took to get inside her. When he was inside her, she started crying and started praying that someone would walk in and help her and save her, but at the same time she was scared that someone would see her in that position.

Thereafter, when she heard A.I. and her sister coming, she got the strength to push him off and ran to the door to keep it closed as she did not want anyone to see her with her pants down. [ 48 ] She said that no condom was used and she is unsure whether he finished inside of her. She stated that she did not invite him to have sex with her and that it hurt “really bad” when he was inside of her, which is why she was crying. The only time she said that she may have indicated she was consenting was in the texts to go up to his room. She said she never consented thereafter.

She said that her body was not ready to have sex with him and Morgan did not do anything to make her ready. She was not able to say how

long he was inside of her. [ 49 ] After the incident and noticing the whole toilet bowl was filled with blood, she cleaned herself up so that everything was clean.

After slowly going downstairs, she kept to herself until they were ready to go. [ 50 ] In terms of her memory, she agreed that the alcohol and marihuana affected her memory “pretty well” in that she remembers the main parts that happened, but the background stuff was “kind of” blurry. [ 51 ] She then indicated that she remembered some things about an incident that happened in January. [ 52 ] She initially related that she turned 18 in December and that after New Year’s, Morgan, during the early morning hours, messaged her on Facebook Messenger and she went to his house alone and used an Uber.

He showed her his artwork, a box that he had with a “vibrator” and then they watched an anime. They laid in bed, had consensual sex, and fell asleep. [ 53 ] When T.W. woke up, Morgan was having sex with her while she was on her stomach, and she had a pillow resting on top of her head. She stated that she did not invite him to have sex with her before she went to sleep and noted she thought it was “ok” because she had her underwear on when she fell asleep but not when she woke up. She said when she woke up, she just let it happen. It made her feel gross and used.

She said there was no touching or kissing when this was happening, and he was not using a condom. She then had a shower and got an Uber and went to her sister K.W.’s residence. [ 54 ] She was not entirely sure of the date and while she was pretty sure the incident happened January 2, she believed the latest it could have happened was January 10, 2021. [ 55 ] During this January incident, they were both sober and said that she suffered from a UTI after this incident and the incident in February.

She said she was not on her period during the February incident and both incidents involved vaginal intercourse. [ 56 ] T.W. was then cross-examined. [ 57 ] She agreed that she provided a February 21, 2021 written statement and a March 3, 2021 audio visual statement to the police.

She also agreed that she lost her phone with the text messages from Morgan that she had saved and spoken to the police about. [ 58 ] In terms of the January incident, she said that a couple of weeks after her birthday, that she and Morgan had been exchanging messages on Facebook Messenger and confirmed, after being shown Exhibit D-1 (for identification at this point), which contained a copy of some messages between Morgan and her, that January 9, 2021 at 6:18 a.m. was when he contacted her. As well, she agreed that he “Ubered” to K.W.’s residence where she was staying to pick her up and take her to his residence.

She said that she did not have a good memory of this incident as it happened two years ago. She said she decided to go because she was bored as she could not sleep that night. [ 59 ] Once there, she remembers going to his bedroom and looking at his artwork and then watching anime. She was not sure if he was playing music through the television. It was Morgan’s idea to hang out in the bedroom, but she had no hesitation hanging out there. She said they started kissing, then touching and then they had sex in the missionary position.

She was then asked why she had told police in March 2021 that they only had oral sex. She stated that it started off as oral and then progressed to vaginal sex and she then woke up to Morgan having sex with her again. She does not recall what time it was when they woke up. [ 60 ] She reiterated that there was no condom involved and that she did not know whether he ejaculated inside of her. She emphasized that there was penetrative sex and not just oral sex in the morning. After that incident, she again reiterated that she showered and left.

She emphasized that the sex act which she woke up to was not consensual. [ 61 ] After this incident, she said she did not tell anyone about it because it felt weird as Morgan was good friends with her sisters and she felt guilty that they would be mad if they found out that Morgan and her had sex.

She said it was not the age difference that bothered her. [ 62 ] She agreed that in her statement to the police of February 21, 2021 she did not mention this January incident with Morgan. [ 63 ] During the February incident, she said she was wearing her black jeans and a grey sweater but does not remember what Morgan was wearing. They all agreed to drink that night so C.W. picked up some alcohol at Sobeys and also agreed that they went to Shoppers for something as well.

They then went to Starbucks to find something to mix with soju. [ 64 ] She was at Morgan’s for the duration of the evening, which would be approximately six hours and was a “6” on the intoxication scale at the time of the incident. She agrees that she met with Morgan four different times over the course of the evening. She acknowledges that in her police statement she only spoke about three specific occasions. Before testifying she said that she did not review her written statement but did review her video statement.

She says her memory of the events is clearer now because at the time of her interviews it was so fresh, she was stressed out and she was rushed to get the statement out. She indicated the same thing occurred with her written statement to the police as well and reiterated that her recollection is better now despite the lack of notes on the phone. [ 65 ] She said when she first consensually kissed Morgan during the first incident in February, she was not that drunk and was a 2 out of 10.

She reiterated that she stopped kissing him because her sisters came back in from their smoke break. [ 66 ] She was then asked why go upstairs if she was previously sexually assaulted, referring to the January incident. She responded that she was young and naïve but did agree that no one was forcing her to go upstairs and kiss Morgan. When she stopped

the kissing, she agreed that he was not angry or frustrated. She said her tolerance to marijuana was pretty high and was only smoking here and there on the night in question. [ 67 ] She then reiterated that the next time they interacted was outside the bathroom, which involved touching and kissing, with Morgan touching her butt, chest and throat while she touched his shoulders and back. She agreed that this was entirely consensual. She said this happened an hour after the first encounter.

They again stopped when T.W.’s sisters came in. [ 68 ] The third time involved when he stuck his hands down her pants in the boot room and she believed that A.I. saw them. She said she knew A.I. had seen them kissing. She was then shown a video interview where an officer asked her if this incident in the boot room was the second incident and she agreed. After they stopped, she agreed that Morgan was not angry or frustrated. [ 69 ] With respect to the fourth incident, she does not remember the exact wording of the text message she received from Morgan asking her to come upstairs to his bedroom.

However, at that time her sisters were still downstairs. She said she was fully clothed and Morgan was in his shirt and boxers when she went up to the room and sat on the bed beside Morgan. At that point, he told her about the two-minute timer and that they had to be quick, whatever they were doing, which she interpreted as when the timer went off it was all they would be doing and they were done. After the timer went off after kissing, she assumed they were done and said “ok”, but then he said he wanted oral sex. [ 70 ] At that point, he pushed her head down to his penis.

After that, he then forced her legs open, said he wanted to put it in and forced himself into her. She then described their body positions during these acts. She does not have any idea how long the forced oral sex or vaginal sex lasted. During this time, when she told him to hold on, she eventually got the strength to push him off as she had heard someone come up the stairs to the hallway. [ 71 ] While she was praying for someone to help her in that predicament, she did not yell for help and her impulse was to not let anyone in.

She acknowledged that it did not make sense, but she felt she was in a dilemma as she was scared to have people see her in that position and also scared to stay in that room. She also agreed that when she went for the door that Morgan did not pursue her. She then got dressed and put her underwear on backwards. Before she left, she called Morgan a “fucking asshole”. She agrees that Morgan told her he was going to sleep. [ 72 ] In terms of the blood in the toilet, she stated she did not have her period.

She also acknowledged having had sex before (which is implied given her rendition of the January incident) and agreed that she did not seek medical attention. She said she was not still crying when she went downstairs but sat on the couch and kept to herself. She said that Morgan started touching her leg and that she was shaking her head no, but he would not stop. She said the reason for this was that she did not want her sisters to know and she no longer felt safe with Morgan. She said Morgan acted like nothing happened. Her sisters were in the room when this was happening.

She did not think anyone noticed at the time. [ 73 ] When she and K.W. were about to leave, she reiterated that she was looking for a part of her bong. Eventually she found it in the couch and Morgan had said it was an excuse for her to come back. She acknowledged that she did not indicate this in her video statement because she did not think it was important. [ 74 ] Just before she left with A.I. and K.W., she told A.I. about what happened, which was that Morgan did something and she was bleeding.

On 33rd Street, turning on to Circle Drive in Saskatoon, she then told K.W. what had happened, and K.W. became very upset. She agreed that she told them because she felt guilty about having sex with Morgan. She indicated that she told all the details about what happened. [ 75 ] She agreed that no one forced her to go upstairs and acknowledged that she could not give a “good” explanation, other than being drunk, about why she went upstairs if she had non-consensual sex with Morgan previously.

She agreed that Morgan was not angry, and she had not been scared of him previously. [ 76 ] She agreed that her primary concern was that her sisters did not find out and she was worried that she would get caught, that her sisters would be mad if she got caught and was worried if she got caught that it would jeopardize her relationship with Morgan. She hesitated going upstairs the fourth time because her sisters were there and T.W. said she did not want to get caught. [ 77 ] When she went back downstairs, she was uncomfortable because she thought her sisters would smell blood on her and know what had happened.

She agreed that she held the door closed because she was worried that she would be caught. [ 78 ] She reiterated that the sexual activity in both January and February was not consensual and that she knew she was getting sexually assaulted when she was crying and hurting. [ 79 ] During re-examination, T.W. said it felt good when she told A.I. what had happened as she felt safe enough. [ 80 ] In terms of the statements, she did not mention the January incident as it was her first time writing something like that, and she assumed she had to write only about the one incident.

At that time, she was rushed as her mind was racing and she does not do well under pressure. She felt better in court as she can take her time. K.W. [ 81 ] The next witness called by the Crown was K.W. She is 28 years old and explained how she knew A.I. and how she was introduced to Morgan in 2012 at a round dance at the Oskayak School. [ 82 ] In February 2021, she was living in the Evergreen area of Saskatoon while her sister C.W. was living in Wadena. Given she has a young daughter, she has not hung out with these close group of friends since the summer of 2020.

The group has a chat group known as “BTS Trash”, which included the three sisters previously mentioned, as well as Morgan, A.I. and her cousin Courtney.

[ 83 ] The decision to hang out was a last-minute matter where they went to Starbucks, the Sobeys Liquor store in the Evergreen area, where C.W., who was driving, and Morgan got alcohol, which included soju, wine and Twisted Teas. She said she was the last to be picked up at around 8:00 p.m. - 9:00 p.m. A.I. was not with them as she arrived separately between 11:00 p.m. -12:00 p.m. [ 84 ] Once they arrived, they were mixing the soju with their Starbucks drinks. When A.I. arrived, she came in with a small case of White Claw drinks.

The party took place in the basement as the whole group listened to music and chatted. [ 85 ] During the party, there were a lot of smoke breaks, and she said A.I. and her were getting a little light buzz from the alcohol and she was focusing on talking to A.I. because she missed her. To smoke, they would go out the side door of the residence and she noted it was cold outside.

She did not consume any drugs. [ 86 ] During the party, Morgan would make them laugh a lot like he always did. [ 87 ] During one point at a smoke break with C.W. and A.I., she got too cold and went back inside and noticed she was alone in the basement. The music was still playing and she sat and scrolled through her social media on her phone. After being alone for 15-20 minutes, she remembers getting a message on the group chat from A.I. or C.W. about Morgan shaving his eyebrow. She does not remember going upstairs at that point, although she had gone there previously to use the bathroom.

During this time, she had believed that T.W. and Morgan had gone for a smoke, which is why she did not question anything. [ 88 ] At their drunkest, she would rate C.W. at about a 2 on the scale of intoxication, she was a 5-6, A.I. was a 5-6, T.W. was maybe a 6 and Morgan a 7-8. She did note that when T.W. came back from upstairs after being gone for some time, she was quiet, although she attributed that to her sobering up or being bored. [ 89 ] At the end of the night, she remembers having a smoke break where T.W. and A.I. were talking and when she came out, they stopped talking.

A.I. was warming up the car at this point. She does not remember spending more one-on-one time with T.W. as she was focusing on catching up with A.I. The only unusual thing she noted between T.W. and Morgan was that when she came downstairs T.W. sat beside her rather than in her normal spot. She thought her quietness at the end of the party was unusual as she was usually vocal at the end of a party, even when she has had enough. When they left, she thought Morgan’s eyebrow was shaved a little bit. [ 90 ] She then spoke about the crush that Morgan had had on C.W.

While C.W. did not return the feelings, it was not a big deal in the group. [ 91 ] She noted that C.W. had already left the party 20 to 30 minutes before they were about to. However, she could not confidently say for sure that C.W. did not leave with them. C.W. had also left earlier that night for about 45 minutes to go to talk to a friend, but she is not sure when that was. [ 92 ] That said, she indicates she “110%” remembers leaving in A.I.’s car from the party with A.I. driving, K.W. in the passenger seat and T.W. behind her.

By 33rd Street, A.I. exited on to Circle Drive and that is when A.I. told her that T.W. has something to tell you. She was on her phone at the time, so she did not even turn around. T.W. then told her the “gist” of what happened. She remembers T.W. apologizing to her and blaming herself a lot and K.W. told her to stop blaming herself. [ 93 ] K.W. remembers being very angry and seeing red and wanting to go back to the house and told A.I. to turn around, but A.I. said no.

She then called and messaged Morgan on the phone and she asked, “What the fuck happened?” She said Morgan played dumb and she kept repeating her queries and he kept lying to her as he was denying everything profusely. He kept saying, “I don’t know what you’re talking about”. She told him that, “T.W. told me you sexually assaulted her”. He responded by saying he never would touch “our little sister”. He then pretended to start crying for about a minute and then flipped the switch, stopped crying and started laughing (like chuckling) and said, “Okay, fine”.

He said that they did have sex, but it was consensual and told her to drop it. She said, “She’s barely 18, she’s just a kid”. This conversation made her very mad. [ 94 ] She did not see any injuries on T.W. She hung up on Morgan at one point but continued to message him and call him a predator. She had also told T.W. that she could take her to the hospital for a rape kit or they could go to the police station. She said that T.W. did not want to go and because C.W. felt she was not in the right state of mind, she let T.W. take a shower.

Once they got back to her house, she thought T.W. was in the shower for an hour. [ 95 ] Once they did get back to her house, she finished her conversation with Morgan in the garage, got T.W. a fresh towel and went outside to smoke with A.I. She remembers the sun coming up at this time. When A.I. left, T.W. was still in the shower.

T.W. made the decision herself to go to the police despite K.W. being scared for her to go because it is difficult to relive the experience and then potentially have nothing come of it. [ 96 ] She also stated that she was familiar with T.W.’s menstrual cycle and noted that they called themselves “blood sisters” because they were aligned in that area.

She can say that the night of February 19 T.W. was not on her period. [ 97 ] She said that, while T.W. was inconsolable in the car when she disclosed what had happened to her, by the time they arrived at her home T.W. had stopped bawling her eyes out but still took deep after-cry breaths on occasion. [ 98 ] K.W. was then cross-examined. [ 99 ] She was not able to provide many details with respect to the friendship between T.W. and Morgan except for the fact that they likely met in 2018.

She was not aware prior to February 19, 2021 that they had messaged each other. [ 100 ] With respect to the events of February 19, 2021, she remembers being picked up by C.W. around 8:00 p.m. - 9:00 p.m. and going to Starbucks and then Sobeys Liquor where T.W. was not able to buy liquor as she was underage. She does not recall going to a second liquor store. She remembers getting to Morgan’s at around 9:00 p.m. - 10:00 p.m., going to the basement and drinking within 30 - 40 minutes of arriving. She remembers everyone consistently drinking and, while she did not see T.W. smoking marihuana,

she assumed she was. She saw a bong on the coffee table. [ 101 ] She then advised where everyone was seated. During the evening, she said everything seemed normal and no one was upset. Morgan was being funny and making everyone laugh. [ 102 ] When T.W. came downstairs, she seemed quiet and bored. However, she only glanced at her and noted that she was on Facebook. Morgan came down a minute or two later and sat in his usual spot with T.W. to the left of her and Morgan to her right.

Again, she did not see anything unusual or that T.W. had been crying. [ 103 ] Thereafter, A.I. texted her to go for a smoke and K.W. had a smoke with T.W. and A.I. She reiterated that she heard muffled voices but that they stopped talking when she got outside. She did not see any crying, but she was not paying attention as she only noted T.W. on her phone and, in an unusual act for her, looking at her feet.

She was getting cold and then asked A.I. to drive her and T.W. home. [ 104 ] After T.W. had relayed the gist of what happened and followed with the apologizing, K.W. said that T.W. was preoccupied with how she would take the news. Her focus was on T.W. and messaging and calling Morgan because she was so angry. She remembers a couple of calls, including one lasting about six minutes and screaming at him. He also hung up on her once. That other call was maybe a minute, perhaps less. When she called Morgan, she wanted to see how he reacted, so she asked open-ended questions so he had a chance to tell the truth.

However, she felt he was being “dumb”. It was obvious to her he knew she was mad. [ 105 ] In terms of the “pretend crying”, she knew what he sounds like normally and she was not incapacitated enough not to “use my head”. She agreed it was her opinion that he was pretending. She agrees that she was also upset at the age difference. [ 106 ] She was sure of the periods and knew that they had finished one and a half to two weeks before this incident, although she acknowledged that it was possible that she did not know if T.W. was on her period.

However, she stated that they had spoken about it. [ 107 ] She said that T.W. knew that she would disapprove of her being with an older man. She also acknowledged that she never saw anything but talking between Morgan and T.W. on February 19, 2021. [ 108 ] On re-examination, K.W. confirmed that her and T.W.’s menstrual cycles were regular. C.W. [ 109 ] The next witness was C.W. [ 110 ] In direct examination, she said that she was the oldest of the sisters at 30. She has known A.I. since she was a little girl.

She has known Morgan since January 2012 when they met at a round dance at Oskayak School and started hanging out. She lives in Saskatoon now, but in the spring of 2021, she lived in Wadena. She is part of the Facebook chat group of “BTS Trash”. She and Morgan were best friends and he had a crush on her, but she never felt the same way and he never pushed it on her. [ 111 ] Since the pandemic started, the group did not see each other as much but did video chat.

Previously, she had taken parental responsibility for T.W. when T.S. was 15 but they stopped living together in the summer of 2021. [ 112 ] On February 19, 2021, the group hangout included herself, K.W., T.W., Morgan, and their friends, Keenan and A.I. The plan to hang out developed a couple of days before when she messaged Morgan to hang out. She arrived in Saskatoon at 7:30 p.m. - 8:00 p.m., picked up T.W., then Morgan, then K.W., then went to the Starbucks and then to Sobeys Liquor. Afterwards, they went to Morgan’s house and hung out. [ 113 ] She says they arrived at Morgan’s around 9:00 p.m. - 10:00 p.m.

During the party, she left Morgan’s house for about 40 minutes to an hour between 11:00 p.m. -12:00 p.m. to see a friend and when she got back, A.I. was there. [ 114 ] When she first got there, she went to the basement and drank some strawberry soju. Prior to leaving to visit a friend, she had the soju and a half a glass of wine and one other mixed drink with the soju. When she had returned to the party after the brief absence, she thought everything was fine. When she got back, she drank some more.

On the scale of intoxication, she was about a 3, K.W. was a 3, T.W. was a 4, A.I. was a 4 and Morgan was around about a 7. [ 115 ] She indicated she did not smoke marihuana but took smoke breaks about every 20 minutes. While the music was loud, it was not so loud that she could not hear what people were saying when they were talking. During the party, she did not see anything unusual. She left the party between 3:00 - 4:00 a.m. and she was the first to leave. [ 116 ] The only incident of note during the party was the time when Morgan and T.W. were gone from the basement.

She had been outside smoking with A.I. and noted the absence of those two people. A.I. had messaged Morgan on the group chat and asked him where he was and he had said that he was shaving his eyebrow. It did not strike them as unusual as he said he wanted to do it. [ 117 ] After coming back in and noticing they were not downstairs, she said to A.I., let’s go upstairs. And the bedroom door was closed so she whispered to A.I., “I think they’re in there”. She was curious and tried to open the door, but it was shut. She believed someone was holding the door when she tried to open it.

She thought this was “super weird”, so she went back downstairs but did not talk to anyone else about this. [ 118 ] After she went back downstairs, everything seemed okay when they both came down separately, so it did not raise any concerns for her. She did not hear anything in the bedroom when she approached it. She did not look at Morgan’s eyebrow after

he came down. She did not note anything else unusual as sometimes people were missing because they were in the bathroom or smoking during the party. [ 119 ] The absence of Morgan and T.W. was longer than a smoke break as smoke breaks were approximately 5 - 15 minutes. [ 120 ] When T.W. and Morgan came back downstairs, she knows Morgan was acting normal as he was loud and joking around.

She did not really notice T.W. [ 121 ] When she left the party, she left alone. [ 122 ] During cross-examination, she said she has known Morgan for nine years and that T.W. and Morgan knew each other because of his friendship with her. [ 123 ] She again recounted arriving in Saskatoon at 7:30 p.m. - 8:00 p.m. and initially going to Starbucks and then the Sobeys Liquor store.

She thought it was possible that she could have gone to a second liquor store. [ 124 ] She said she did not drink before she got to Morgan’s house, had two to three drinks initially, then had no drinks when she visited her friend in the interim and had two drinks after she returned to Morgan’s. [ 125 ] She agreed that everyone seemed normal and happy and that no one was upset at Morgan’s. [ 126 ] She does recall seeing T.W. smoke marihuana once that night but does not recall seeing the bong. [ 127 ] She thought it was about an hour and a half after she returned that she noticed that T.W. and Morgan were gone. [ 128 ] She said there was no music on the main floor, and while it was not quiet on the main floor, it was not as loud as the basement. [ 129 ] When she went upstairs, she did not hear anything in the room except for shuffling and she was there for about one minute.

After checking out the door, she went back downstairs with A.I. She believed it was at least 10-15 minutes before T.W. first came back downstairs and then Morgan. [ 130 ] While T.W. did not seem upset when she came downstairs, she was not really looking at her as she just took a quick look. T.W. sat down in the same place as before beside K.W. Morgan came back down one to two minutes later. [ 131 ] She thought Morgan appeared normal and not angry and frustrated.

She did not see anything between T.W. and Morgan on the couch after they were downstairs, but she was busy having fun and talking with everyone. [ 132 ] She left half an hour to an hour later after Morgan and T.W. returned downstairs. [ 133 ] She was confident in assessing Morgan as a 7 on the scale of intoxication. On February 19, 2021, she indicated that T.W. never told her about any prior messages or personal encounters between herself and Morgan.

She felt Morgan preyed upon T.W. partly as a result of the age difference. [ 134 ] She indicated she has not discussed the incident with T.W. [ 135 ] After having the Indictment conform with the evidence by amending the date in count #1, with the consent of defence counsel, to “on or between January 1 and January 10, 2021, both dates inclusive”, the Crown closed its case. Morgan Kennedy [ 136 ] The defence called Morgan to the stand. [ 137 ] During direct examination, he indicated he was 30 years old and in February 2021 lived with his cousin, D.W., at [reacted], just off of 33rd Street in Saskatoon.

He knew T.W. as she was the little sister of his friends, K.W. and C.W. The older sisters had been his friends since 2013. He had also known A.I. since high school. He had first met T.W. several years ago. [ 138 ] He said that the first message he sent to T.W. was in January after a night of drinking and he asked her if she wanted to hang out. Her age had nothing to do with the timing of the message. The defence entered Exhibit D-1 as a full exhibit, which Morgan identified as a copy of the text messages between himself and T.W. on January 9, 2021 at 6:18 a.m.

He acknowledged sending messages to T.W. before, but those messages involved simply asking the location of T.W.’s older sister because they did not have wi-fi. [ 139 ] On January 9, 2021, he had just been at a gathering drinking with three other friends and was ready to go home. He tried to get an Uber and saw that T.W. was online at 6:18 a.m. on Facebook and decided to message her to hang out. She agreed and he took an Uber over there and picked her up. During the ride over to his residence, she held his hand.

He was pretty sure they watched anime for a bit when they arrived at his residence and then listened to music on TV. He was still under the influence of alcohol at this time. [ 140 ] He said he messaged T.W. because he was just bored and wanted to say hello. [ 141 ] At the time he left his friends, he felt he was about a 5 on the intoxication scale. [ 142 ] After listening to music, showing her his artwork and discussing her poetry, they started to get intimate, which progressed to kissing and feeling each other up. She unbuttoned her pants, they started fingering and kissing each other and then he gave

her oral sex. He said she never said no or wanted to stop any of this activity. Before beginning oral sex, he asked her if it was okay and she said yes. [ 143 ] He then tried to have vaginal sex with her and got on top but was too intoxicated to perform so they kept with the fingering and the oral sex. This lasted between 20 minutes to half an hour. He denies that any vaginal sex occurred before he went to sleep.

While he was dizzy and nauseous, his impairment did not affect his memory. [ 144 ] After the sexual acts they went to sleep, and he next remembers waking up in the morning feeling hungover, at which point they cuddled. [ 145 ] After this cuddling, they went back to sleep. [ 146 ] They woke up in what might be the afternoon and they cuddled again. He then tried to go back to sleep. They woke up again and started kissing, but he was worried about how bad his breath might be, so he initially stopped. More sexual acts followed, but it was just fingering and digital penetration and no other sex acts occurred.

During these sex acts, T.W. was awake and never said no. The only time she moved his hand or told him to stop was after she ejaculated (or climaxed) during oral sex. He indicated that he stopped. He reiterated there was no penile penetration.

He said he felt bad because he fell asleep on her. [ 147 ] Before she left, he asked her if she wanted to shower and she showered and left between 8:00 p.m. - 9:00 p.m. that night. [ 148 ] They did discuss keeping the relationship secret from T.W.’s sisters and he said that if they found out they would be angry. [ 149 ] Between the January 9, 2021 date and February 19, 2021, they had contact with each other on Snapchat where they were saying hello and being flirty both ways. [ 150 ] He then describes an incident where he and T.W. had contact shortly after Valentine’s Day, 2021.

However, questions about this incident were not put to T.W. or C.W. during cross-examination. Of more importance, the procedure outlined pursuant to s. 276(2) of the Criminal Code was not followed either. Therefore, given the Rule outlined in Browne v Dunn (1893), 6 R 67 (UK HL) and the provisions of the Criminal Code , this incident will not factor into my considerations. [ 151 ] On February 19, 2021, C.W. had messaged him that she had a hard time that week at work and wanted to drink.

He agreed and, along with T.W., they went to Sobeys Liquor in Stonebridge where he bought two bottles of soju and a couple bottles of wine. T.W. was not able to purchase any liquor as she was underage. They then went to Starbucks, then picked up K.W. in Evergreen, then went to Shoppers as K.W. wanted to get a magazine. After, they went to the other Sobeys Liquor off Preston in Saskatoon where C.W. bought Twisted Teas and soju. After that, they went to his house and arrived around 9:30 p.m.

The people present were himself, C.W., T.W., K.W., and later A.I. and Morgan’s friend, Keenan. [ 152 ] Keenan was already at the house in his room and they convinced him to join the rest of the group. He remembers A.I. arriving an hour later. They started drinking the Starbucks with soju. They were all drinking and socializing in the basement. [ 153 ] He says he was drinking the soju mix and wine but did not have any other drugs. He remembers T.W. smoking marihuana while she was outside. [ 154 ] He started to get buzzed and messaged her on Snapchat to meet him and she said yes.

They went upstairs with him going first and then T.W., and they kissed for about two minutes. They stopped when T.W.’s sisters came in. She then went down to the basement and he followed after about a minute. There is one bathroom in the residence and the kissing occurred outside the bathroom. [ 155 ] He then sat back down on the couch and, after a period of time, messaged T.W. “round 2”, to which she responded “ok” and when T.W.’s sisters and A.I. went for a smoke break, he went upstairs and T.W. followed. They began kissing again and feeling each other’s bodies and he felt up her bum, back, neck and chin.

All this touching was over the clothes and it lasted three to four minutes. It ended when her sisters, Keenan and A.I., came in from the smoke break. [ 156 ] At this point, they went back downstairs and C.W. left for around 45 minutes to an hour to pick up her friend. [ 157 ] After C.W. came back with her friend, David, Morgan and T.W. accidently met up in the boot room and started making out for a bit, but they did not know that A.I. was up there using the bathroom. So when A.I. opened the door to the boot room, they stopped kissing. They were both pretty sure that A.I. saw what they were doing.

Before A.I. opened the door, this encounter lasted about two minutes and they stopped. He thought he had his hands on her bum during this time. [ 158 ] However, A.I. walked past and nothing was said. T.W. then messaged him and asked whether or not A.I. saw them, to which Morgan replied that he thought A.I. would have said something if she saw them. [ 159 ] In terms of alcohol intoxication, he thought T.W. was a 5 to a 6 on the scale of intoxication, which meant being buzzed and having fun.

He indicated that scale applied to everybody else, including him. [ 160 ] After this third incident, they went back to socializing and he and T.W. would sit closer and have some conversations here and there. [ 161 ] He said that he went to his bedroom in the house to take a break and messaged T.W. to see if she wanted to come upstairs. She said “yeah”. He asked whether he should be waiting with his pants off. T.W. said “yeah”. He indicated he was waiting for two minutes before she came up.

[ 162 ] She then came into the room and came on to the bed and they started kissing and she reached down near his penis and started giving him a handjob while the kissing continued. She then laid down to get a better angle and he asked her if she wanted to give him head and she said yes and started performing oral sex on him. He then described their positions on the bed. [ 163 ] At this point, he was just wearing his underwear and a shirt while T.W. was fully clothed. He remembers the kissing lasting three to four minutes.

In terms of using the timer, he says that he does not remember the timer, but states “the more people bring it up, it sounds familiar, but I think that was more so… for the actual sex”. He then took off his boxers for the oral sex. He denied that he forced her head down to his crotch area and noted that T.W. never said she did not want to do this. He said he never put his hand on her head and she never used her teeth, as the oral sex was not painful. He said the oral sex lasted about two minutes. [ 164 ] He then asked her if he could “put it in real quick”. She said, “ok, but we gotta be quick”.

He then believes that this is when the timer on his watch came out to time this activity. He then said that when he came to court on this day he thought the timer was on his phone rather than his watch. He talked about a fog in his brain at this point when he spoke to police and they asked about the timer, as he had not thought about this incident for a long period of time. He got up to set his timer and she then got undressed and they started having sex after he had taken his underwear off completely.

He said he got on the bed, grabbed her legs, put his penis in her vagina, she was already wet, and the sex happened. [ 165 ] During this encounter, T.W. opened her legs and did not try to stop his penis from entering her vagina. According to Morgan, T.W. never said no or tried to fight him off, and the only time they stopped was when they heard someone come up the stairs and T.W. got up to block the door with her body. He said that the encounter lasted less than two minutes and he was only briefly on top of her when he went to kiss her.

He did not use a condom because he did not have any. [ 166 ] He knew it was A.I. and C.W. coming up the stairs because he could hear them clearly. He knew that they wiggled the door that T.W. was now blocking but they could not get in. Shortly after, A.I. messaged him and asked, “Where are you?”. He messaged back and said that he was resting and was shaving his eyebrow and did not like the way it looked.

He then actually shaved his eyebrow after the sexual encounter. [ 167 ] After T.W. blocked the door, she then started to get dressed, he put his underwear on and checked behind the door to see if anyone was still there. He did not see anybody and told T.W. that nobody was there. As T.W. was leaving, she asked whether he was coming back downstairs but he said that he was going to bed. He does not remember her calling him a “fucking asshole”. He did not notice any blood anywhere either in the bathroom or on his penis. [ 168 ] He indicated that the intercourse was not rough.

He reiterated that he shaved his eyebrow and then goes downstairs and sits beside T.W. He did not go to bed as he did not want to ditch his friends. T.W. was not crying at this time. He did touch T.W.’s leg when they were downstairs. [ 169 ] Everybody left shortly after he came back down and, as he said goodbye to T.W., he asked her if she was going to come back and she said maybe. He then went to sleep.

After a bit, K.W. called him and asked, ‘Is there something you want to tell me?” She then said, “Morgan, what the fuck is going on?” And he started to be “more vague” in his responses so as not to deal with the situation. He was trying to avoid the situation altogether as he knew their friendship was about to be over. The phone call continued, he hung up on her, but he eventually admitted to having sex with T.W. [ 170 ] He knew K.W. was really mad and he was realizing that their friendship was about to be over with this phone call. He said he did not understand K.W.’s reference to blood.

He said he was worried that T.W. might be in trouble. He said that this was really upsetting and he cried. He said that he never laughed at K.W. because that would have been “invalidating”.

Given T.W.’s age and that she was his friend’s little sister, he knew his actions were morally wrong. [ 171 ] He did not find out about the rape allegations until August of that year when the police showed up at his door. [ 172 ] He advised that he went back to T.W. after their initial hook-up in January because he figured that he “owed her more” as “she was a great girl”. [ 173 ] He reiterated that over the course of the two months of January and February 2021 and any other time, that he never forced T.W. to have sex with him. [ 174 ] He felt that the passage of time interfered with his ability to remember the events to a great extent more so than the intoxication, although he says that “things keep coming back to me”.

However, in terms of the sexual interactions with T.W., he knows she consented, and nothing affected his memory with respect to those interactions. [ 175 ] Further, he says that T.W. was not impaired during the January incident and there was no drinking alcohol in his room either. [ 176 ] Further, there has been no further contact with T.W. after the February 19, 2021 incident. [ 177 ] Morgan was then cross-examined. [ 178 ] Before late 2020, he said he had no long-term girlfriends but was in a two-year relationship that ended badly prior to the pandemic.

He has not been in a serious relationship for a long time until recently. [ 179 ] He said that he had not messaged T.W. around her 18th birthday but did admit to one prior private message in late December or early January prior to the January 9th, 2021 incident. Prior to the January incident, he said that T.W. had never shown any personal or sexual interest in him that he knew of. [ 180 ] In terms of his crush on C.W., it was not a topic of conversation in the group, but they teased him and C.W. about

it on a couple of occasions. While they did have sex on one occasion and cuddled on another, that was the extent of any affection he shared with C.W. While they were not super romantic, they were “really close”. While neither of them were into one-night stands, they did have one. [ 181 ] He said he never had serious feelings for T.W. or expressed any romantic interest in her before late December 2020. [ 182 ] With respect to the January incident, he picked T.W. up from K.W.’s where she was visiting, and they were holding hands in the Uber and looking at each other.

There was no serious conversation, but he was surprised she was holding his hand. When they went back to his place, D.W. and Marissa were there sleeping and he was not sure if Keenan was home. He was just a “little worried” that he might wake these roommates by bringing T.W. over.

The only thing he did though was to shut his bedroom door. [ 183 ] He said there were no interactions with these roommates during the January incident as the only time T.W. crossed paths with any of them was when she left as otherwise they were in the room. [ 184 ] In the morning of January 9, 2021 he was still buzzed and continued to rate himself a 5 or a 6 on the scale of intoxication. He said he was hungover during the day but not when they hooked up. He said the alcohol affected his sexual performance but not his memory. [ 185 ] He said he did not plan on asking T.W. for sex.

He said the idea to become sexual in the bedroom was both of theirs. [ 186 ] He then answered questions relating to the February incident before February 19. For the same reason as before, I will not describe the exchanges in cross- examination. [ 187 ] With respect to the February 19 incident, he agreed that there were three encounters with T.W. before the bedroom incident. [ 188 ] During “round 2” he believes he quickly grazed her chest as he was going to grab her neck and chin. [ 189 ] During the bedroom incident, he believes they both initiated the escalation from kissing to intercourse.

He did not have a particular reason why he used the words “Can I put it in real quick?” He said the bedroom did not have a lock, but it was fully closed during the encounter. They never discussed condoms. T.W. blocked the door rather than him because she got there first. [ 190 ] It was not the initial plan to go to the room and message T.W. as he did want to go to rest. While he acknowledged it was a risk to touch T.W.’s leg after the bedroom encounter, he said “maybe” he wanted to be close to her.

In terms of the relationship with T.W., he was more worried about T.W. getting into trouble than losing the friendship with the sisters – although he thought he would get into trouble as well. [ 191 ] Morgan was then shown Exhibit P-2, which was a copy of the phone messages between him and K.W. after the February incident. He was questioned whether he ever planned any of this and said that January incident was spontaneous. The words used were “shit just happened”. He said that some of the things he was saying to K.W. and being “purposely vague” were as a result of trying to save his friendship with her.

He says that he did not seduce T.W. or vice-versa. [ 192 ] When asked “why would he risk it” in reference to the friendship, he answered that it “just happened”. He said he went back to T.W. after the January incident because he did not want her to feel used or a one-night stand. He says he “cared about her”. [ 193 ] He agreed that he was not initially forthcoming with K.W. during the phone call after the incident of February 19, 2021, but then later told the truth. [ 194 ] When he spoke about “invalidating”, he said he meant being disrespectful.

He reiterated that he did not laugh. [ 195 ] He said that he owed T.W. more than a one-night stand and that it was not about the sex but hoping that she would feel appreciated.

He said he did not expect it to happen, he did not want to hurt her feelings and did not want to hurt anybody. [ 196 ] After January 9, 2021, he agreed he was willing to risk his friendship and thought he could have it both ways in terms of being with T.W. and maintaining his friendship with T.W.’s sisters, but also he knew he could not as it was just wishful thinking. [ 197 ] During the February encounter, he said the kissing and the oral sex were quiet, but he set the timer due to the potential noise as a result of the sex. When they began vaginal sex, she was the one that said “we got to be quick”.

He disagreed that they were in the room for 10 - 15 minutes and thought it was a shorter period of time. He agreed that he was with T.W. for a suspiciously long period of time but cared about T.W. more. [ 198 ] He disagreed that he had sex with T.W. on the 19th because he was entitled, needy or frustrated. He disagreed being with T.W. had anything to do with his relationship with C.W. [ 199 ] He agreed that before February 19, he was on good terms with the sisters and there were no grudges or hard feelings between the parties.

Position of the Parties [ 200 ] The defence argues that the accused should be acquitted on both charges. The defence theory is that Morgan and T.W. were engaged in a brief sexual relationship. The relationship was secretive because Morgan was older than T.W. by nearly 10 years

and he was friends with both of her older sisters. After some contact, Morgan and T.W. essentially got caught by her sisters and T.W. feltguilty and ashamed. She told them that the act was non-consensual in an effort to mitigate the backlash on her. [201] The Crown argues that the accused should be convicted on both charges. The theory of the Crown is that Morganwas frustrated. His last relationship was some years ago before the pandemic. Things were going nowhere with C.W. other than one one-night stand that was apparently unusual for the both of them.

At around the time of T.W.’s birthday he decided to make contact with herby messaging her repeatedly, complimenting her to make her more amenable to his advances, including his invitation on January 9,2021. There were consensual activities in January followed by the wake- up sex where “she did not protest”. Morgan liked having arelationship and having sex for the first time in a while and T.W. was not complaining. On February 19, 2021, she was willing to meethim for quick make-outs. He invited her to his bedroom and she said that he set a timer. He ultimately enjoyed himself so much that hedid not want to stop.

He did not care that it was risky behavior that was jeopardizing longstanding friendships as the sex made it worth it. [202] Implicit in this argument by the Crown was lack of consent by T.W. during the incident in the bedroom. [203] I find that there are difficulties with both theories. [204] With respect to the defence theory, I do not find that there is any specific evidence establishing that T.W. andMorgan “essentially got caught” at any point during any of the so-called encounters.

There was no evidence that any of T.W.’s sisters orA.I. confronted either Morgan or T.W. about any aspect of their clandestine relationship. Further, there was no evidence, aside frombelieving they might be getting caught, that either T.W. or Morgan believed or acted at the end of the night as though T.W.’s sisters orA.I. had found out about their “relationship”. Further, when T.W. did disclose that she had sexual contact with Morgan to K.W., therewas no backlash towards her. [205] With respect to the Crown theory, there is absolutely no positive evidence that Morgan was frustrated duringeither occasion.

Every piece of evidence indicated that at no time was Morgan angry or perturbed by any of the events that occurredeither night. The Actus Reus and Mens Rea Required for a Charge of Sexual Assault [206] The actus reus and mens rea of the sexual assault charges facing the accused have been concisely stated asfollows in the G.F. decision at para. 25 as follows: [25] The actus reus of sexual assault requires the Crown to establish three things: (

i) touching; (ii) of an objectively sexual nature; (iii)to which the complainant did not consent: Ewanchuk [ (SCC), [1999] 1 SCR 330], at para. 25; R. v. Chase, (SCC), [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determinedby reference to the complainant’s internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, theCrown must show that (

i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was notconsenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused’s perception of consent isexamined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC33, at para. 90. [207] In terms of the actus reus, the positive existe

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