Her Majesty the Queen in Right of the Province of Nova Scotia v. Alexander Beauregard DECISION Restriction on Publication of any information that could identify the victim or witnesses: s.486.4 v. s.486.5 CC, 2022 NSSC 311

SUPREME COURT OF Nova Scotia Citation : R. v. Beauregard, 2022 NSSC 311 R. Date: 20220822 Docket: Hfx. No. 506099 Registry: Halifax Between: Her Majesty the Queen in Right of the Province of Nova Scotia v. Alexander Beauregard DECISION Restriction on Publication of any information that could identify the victim or witnesses: s.486.4 and s.486.5 CC Judge: The Honourable Justice Ann E. Smith Heard: May 16, 2022, in Halifax, Nova Scotia Oral Decision: August 18, 2022 Written Decision: November 2, 2022 Counsel: Tiffany Thorne for the Provincial Crown Anthony Amoud for Alexander Beauregard Long publication ban notice on next page Publication Ban Provisions 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way … 486.5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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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. By the Court: Introduction [ 1 ] Alexander Beauregard is charged with sexually assaulting LP in July 2020. Mr. Beauregard was 31 years old at the time and LP was 32 years old.

The date of the alleged offence, the jurisdiction and the identify of the Accused are all agreed as between the Crown and the Defence. [ 2 ] Alexander Beauregard is charged: That he on or about the 1st day of July 2020, at or near Eastern Passage, in the County of Halifax, in the Province of Nova Scotia, did unlawfully commit a sexual assault on L.P., contrary to

Section 271 of the Criminal Code . Position of the Parties [ 3 ] At issue is whether, on July 1, 2020, Mr. Beauregard had unprotected (i.e., without the use of a condom) vaginal intercourse with LP, without her consent. LP says that she did not consent to such sexual intercourse. Mr. Beauregard says that through all of the evidence at trial, he has raised a reasonable doubt about LP’s consent. Mr. Beauregard also raises the defence of mistaken, but honest belief in communicated consent. Reasonable Doubt and the Presumption of Innocence [ 4 ]

Section 11(

d) of the Canadian Charter of Rights and Freedoms provides that a person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” [ 5 ] Accordingly, Mr. Beauregard is presumed innocent of the charge, unless the Crown proves each element beyond a reasonable doubt. In R. v.

Lifchus, [1977] 3 S.C.R. 320 , Cory J., speaking for the majority, summarized the principles a reasonable doubt at para. 36 • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not poof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guilty must acquit. [emphasis of Cory J.] [ 6 ] In R. v.

Starr , 2000 SCC 40 , Iaccobuci J. stated for the majority that “an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities” (para. 242). [ 7 ] In this case, the Crown must proved the guilty of Alexander Beauregard beyond a reasonable doubt. Credibility and Reliability of Witnesses [ 8 ] In determining whether the Crown has proven beyond a reasonable doubt that Mr.

Beauregard sexually assaulted LP, the Court will be required to consider the credibility and reliability of the witnesses, including LP and Mr. Beauregard. [ 9 ] In Rafyna v. Chorny , [1951] B.C.J. 153 (B.C.C.A.) , a decision often cited by Canadian Courts, the British Columbia Court of Appeal discussed credibility as follows: 11 The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions… [ 10 ] In Baker v.

Aboud , 2017 NSSC 42 , Forgeron J. summarized the principles governing credibility assessment (some citation omitted): 13 Guidelines applicable to credibility assessment were canvassed by this court in paras. 18 to 21 of Baker-Warren v. Denault , 2009

NSSC 59, as approved in Hurst v. Gill, 2011 NSCA 1000, which guidelines include the following: * Credibility assessment is not a science. It is not always possible to “articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events: R. c.Gagnon, 2006 SCC 17 (S.C.C.), para. 20…”[A]ssessing credibility is a difficult and delicate matter that does not always lend itself toprecise and complete verbalization: “R. v.

M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49. * There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety: Novak Estate,Re, 2008 NSSC 283 (N.S.S.C.). On the contrary, a trier may believe none, part or all of a witness’s evidence and may attach differentweight to different parts of a witness’s evidence, Novak Estate, Re, supra. * Demeanor is not a good indicator of credibility: R. v. Norman (1993), (ONCA), 16 O.R. (3d) 295 (Ont. C.A.)at para. 55. * Questions which should be addressed when assessing credibility include:

a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness’ testimony and documentary evidence, and the testimony of other witnesses [citationsomitted];

b) Did the witness have an interest in the outcome or were they personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which they testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonablegiven the particular pace and conditions;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [11] In R. v. A.R.D., 2017 ABCA 237, Paperny J.A. stated: [28] Whether a witness is credible is a question of fact, not law. But, if an assessment of a witness’ evidence is based on a wronglegal principle, or the judicial conclusion about the witness’ evidence is derivative if a misapprehension of a legal principle, these areerrors of law.

Further, “…presumptive adverse inference[s] based upon now rejected stereotypical assumptions of how persons(particularly children) react to acts of sexual abuse” constitute reversible error: R v. D(D), 2000 SCC 43 at para 63, [2000] 2 SCR 275. [12] Reliability is a principle related to credibility. In Cameco Corporation v. The Queen, 2018 TCC 195, the Court explained therelationship between the concepts of credibility and reliability: [11] The reliability of a witness refers to the ability of the witness to recount facts accurately.

If a witness is credible, reliabilityaddresses the kinds of things that can cause even an honest witness to be mistaken. A finding that the evidence of a witness is notreliable goes to the weight to be afforded to that evidence. Reliability may be affected by any number of factors, including the passage oftime. In R. v. Norman, (ONCA), [1993] O.J. No. 2802 (QL), 68 O.A.C. 22, the Ontario Court of Appeal explainedthe importance of reliability as follows at paragraph 47: …The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable.

Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount… Consent [13]

Section 265 of the Criminal Code describes the offence of assault. It states: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly… ….. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party orcausing bodily harm and aggravated sexual assault. Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority Accused’s belief as to consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [ 14 ] Sexual assault contrary to s. 271 of the Criminal Code is any assault which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.

The Crown and Defence agree that for the purposes of this trial, the elements of the assault are enumerated in s. 265(1)(

a) of the Code . In particular, that without the consent of another person, the accused applies force intentionally to that other person, directly, or indirectly. [ 15 ]

Section 273.2 of the Criminal Code provides that it is not a defence under s. 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: (

a) the accused’s belief arose from: (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [ 16 ] Sections 273.1 and 273.2 of the Criminal Code deal with consent in the context of the offence of sexual assault. Those provisions state: 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in questions takes place. Question of Law

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law. No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if … (

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

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

(3) Nothing in section (2) shall be construed as limiting the circumstances in which no consent is obtained. Essential Elements of Sexual Assault [ 17 ] In R. v. Ewanchuk , [1991] 1 SCR 330 (SCC) para 25 Supreme Court of Canada stated: The acus reas of sexual assault is established by the proof of three elements:

(1) Touching

(2) The sexual nature of the contact

(3) The absence of consent [18] The first two of these elements are objective – it is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively, while the absence of consent is subjective (para 26 of Ewanchuk). [19] There is no doubt that Mr. Beauregard intentionally and directly applied force to LP in sexual circumstances. [20] The two questions which this Court must answer are whether LP consented to that sexual activity, and if she did not, whetherMr. Beauregard had an honest, but mistaken belief in communicated consent.

R. v. (W.(D). [21] Alexander Beauregard testified. The Crown also relied on the text messages exchanged between LP and Mr. Beauregard. [22] The evidence of LP and that of Mr. Beauregard as it relates to the circumstances giving rise to the charge diverges greatly. Accordingly, the W (

D) analysis must be applied. In R. v. (W.(D.), (SCC), [1991] 1 S.C.R. 742, Cory J., for the majorityinstructed triers of fact on how to apply the burden of proof where evidence has been led on behalf of the accused: 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 guilty of the accused… [23] This Court must answer the question of whether the evidence of Mr. Beauregard, considered in the context of the evidence as awhole, raises a reasonable doubt as to his guilt. In other words, this Court must consider whether the evidence as a whole establishes theaccused’s guilty beyond a reasonable doubt.

The Evidence of the Complainant, LP [24] LP testified first, and I will review her evidence first. LP testified that she is thirty-five years old and is a food co-worker at aretail store. She said that she met Mr. Beauregard on an online dating site in June 2020. LP said that she and Mr. Beauregard first met inperson at the end of June – probably around June 28, 2020. She said that before they met in person, they talked pretty much every dayfor a week. [25] LP said that when they talked, they talked about life, “general small-talk” but primarily about Mr.

Beauregard wanting to meether in person. [26] Before trial, LP had consented to the Mr. Beauregard’s Seaboyer Application, whereby the Crown would be permitted toadduce evidence of prior sexual activity between LP and Mr. Beauregard; such evidence of prior sexual activity being limited to theperiod overnight between June 30, 2020, and July 1, 2020. [27] In that regard, a record of text messages between LP and Mr. Beauregard was entered into evidence as Exhibit 1.

LP said thatthese messages were one of their on-line conversations before they met in person, so that if they met on June 28, then the messages wereexchanged on June 27. These messages read as follows: LP: You are quite persistent Are you as persistent when it comes to sex and stuff? Mr. Beauregard: Well, I told you I like to make my plans lol What do you mean? I told you ir you want to kiss me Kiss men If you want to cuddle lean into me I don’t read minds LP: Lol I don’t make first move Mr.

Beauregard: But I’m not gonna sit here and ask you to fuck all night LP: But would you stop if we were right in the middle if I asked you to Mr. Beauregard: Well holding hands im a first move buy lol and kissing too Yes Of course I would thays rape haha

LP: Hey a lot of guys still believe once it starts, you can’t stop them They deserve to get off Apparently Mr. Beauregard: Pfff don’t get me wrong! It would suck!! But I’m not that guy haha I would feel like I failed more then anything Not like I deserve to finish LP: Failed? Lol how? Mr. Beauregard: As in you just don’t want me that’s all Like you realized you don’t want me type deal You know what I mean I would wonder why you want to then I would think I made a mistake or something…idk I’m self conscious like that LP: Ohhhh Mr. Beauregard: Makes since? LP: It does Mr.

Beauregard: You keep asking more questions instead of answering me? Haha LP: Lol honestly? Mr. Beauregard: What? LP: To find out if I feel comfortable meeting you Mr. Beauregard: Fair enough LP: A girls gotta be careful you know Mr. Beauregard: I thought question period was over with haha I know!...well I guess I wont ask anymore You let me know I’m persistent but I hate bugging and sounding like I’m begging LP: Hahaha well the controversial questions are done [ 28 ] LP was asked by her counsel to put these messages in context.

Her evidence was that prior to these text messages being sent, they were talking, and Mr. Beauregard told her that he enjoyed talking to her and he mentioned meeting, and had mentioned meeting quite a few times. She said that he was being a little bit more persistent than she was used to about meeting up, so this was her addressing that, because it was concerning a little bit. She wanted to know where his mindset was on that before she felt comfortable meeting up with him. In cross-examination, LP said that the Accused’s persistence about meeting in person was a bit of a red flag for her.

However, she also testified that he was saying all the right things, things that she needed to hear at that time and things which made her feel good about herself. She agreed that during this week, it was essentially on-line dating and that people who date on-line often want to eventually meet in person. Her evidence was that perhaps he was concerned that she might “ghost” him or take off, so she was trying to figure out in her head how much she should be concerned about his persistence. [ 29 ] LP was also asked about the text messages which were marked as Exhibit 1 in cross-examination by Defence counsel.

She confirmed that Mr. Beauregard was persistent about meeting up. She admitted that she followed up by saying, “Are you as persistent when it comes to sex and stuff?”. LP was asked what she meant by “[But would you stop] if we were right in the middle if I asked you to”. She responded that he had just texted, “But im not gonna sit there and ask you to fuck all night”, so “if they were going to have sex, if things started up, and she said “no”, we need to stop now, would he, was my question”. She said “right in the middle” meant right in the middle of any sexual conduct. [ 30 ] LP decided that she would meet Mr.

Beauregard. She said that she picked him up in her car and they walked around downtown Halifax. She said that they talked and walked around for about 3 hours and had a really good conversation. [ 31 ] In cross-examination, LP said that they had a good talk while walking around that day. Her evidence was that they talked about their pasts, that he had had a rough past. She said that she had had people in her life with rough pasts, as well as her own, so she

felt a connection with him. She said that he had talked about anxiety and that she had anxiety, so they had a lot of commonalities. She said that what people did in their past – she didn’t judge, she was only looking at what they learned from their mistakes. She confirmed in cross-examination that Mr. Beauregard had told her then that he had been incarcerated in British Columbia for dealing drugs. [ 32 ] LP was asked whether Mr. Beauregard had told her that he was sexually abused as a child.

Her answer was that she remembered him alluding to something, to his stepfather, possibly, trying to hit him with a hammer or something in his past, which was something she sympathized with as she had family with such a past and knew how difficult that was on someone, so she really felt for him. [ 33 ] LP agreed in cross-examination that she made it clear to Mr.

Beauregard that if they were going to have sex that he’d have to make the first move, but she added that she also told him that he’d have to be gentle and cautious, not putting his hands around her neck, or if he started something and she wasn’t feeling it and said “no”, “was he going to push things to go further, which was what she was trying to prevent, to get a sense if he would respect the boundary that she put there, regardless what the move was”. [ 34 ] LP said that the next time that she met Mr.

Beauregard was on June 30, 2022. [ 35 ] Her evidence was that she believed that they were talking about hanging out for Canada Day (July 1). She said that she was excited and nervous and spent the day cleaning. She testified that she picked the Accused up around midnight on June 30. They got some snacks at the Needs store in Eastern Passage because they were planning on watching movies. She said that they went back to her house, arriving at about 1:00 a.m. on July 1. In cross-examination LP was asked whether the plan had been that they would go to her house, and she said that it was.

She agreed that at the very least, she felt comfortable having her to his home. She added that she was also renting a room with three other guys and that gave her a sense that if something happened, they were there. She said that there were three bedrooms, and a basement room. She said that the landlord lived next door to her, and a high school kid was across from her. This was on the second floor. Her ex-boyfriend also had a room in the basement. [ 36 ] After they arrived at her place, they smoked a joint together. LP said that a joint usually calms her down at the end of the night.

They then sat down to watch a DVD – Big Bang Theory. Her evidence was she thought that the high school kid was there, but her ex-boyfriend was not. At that point she had no relationship with the high school student, or the landlord. [ 37 ] In cross examination LP said that they spent most of their time in her bedroom, as she was just renting a room. She thought that they smoked the joint outside on the deck. LP said that she thought that she provided the marijuana. She agreed that she smokes marijuana daily before bed. She said when she smoked the joint with Mr. Beauregard, they were doing so recreationally.

She said that they probably smoked the joint 50/50. She thought it was likely indica, not stevia, because her primary purpose was to help her to sleep, and she smokes just before bed. She said she didn’t recall if Mr. Beauregard expressed any sensitivities to marijuana use. LP’s evidence was that she didn’t roll it, because she couldn’t, and added that she only started smoking marijuana with her ex-boyfriend when it became legal.

She said that she still can’t roll a joint, and that was why she smokes from a vape. [ 38 ] In cross-examination, LP was asked what change in behaviour or demeanour the marijuana had on her that evening. Her evidence was that it just made her feel a little more relaxed – not quite so nervous.

She added that it was always a little nerve-racking when you bring someone back to your place, that you don’t know what their expectation is going to be no matter how much you talk about it before hand, that if you were adamant, “we’re not having sex” , but the guys she’s been around still assume that means that they are going to have sex. LP added that she did calm down and this allowed her to think straight, but added that marijuana “can make me a little horny too, which is why we ended up having sex”. She agreed that she felt in control. LP said that Mr.

Beauregard seemed a bit more chill after smoking the marijuana, that he seemed a bit more relaxed, and was speaking a little slower, but still normal. [ 39 ] LP described the sex as consensual sex. When asked how the sex began, she said that she wasn’t 100% sure who started. She said that they were close, and the vibe was there, but she didn’t know who made the first move. She added that typically she doesn’t. There was cuddling before they had sex. She said that he had an orgasm as did she. [ 40 ] She said that Mr. Beauregard wore a condom. She saw him put it on and take it off afterwards.

Her evidence was that she couldn’t remember if he brought one with him, but she said that she always had some with her for protection just in case. She referred to an incident in the past, so she ensures she has condoms on hand to protect herself. She said that she keeps condoms in her house, and also keeps one in her purse. She testified that she was “very terrified” of catching diseases. She said that she put condoms beside the bed, perhaps on the floor – wherever there was easy access - before they had consensual sex. She said she let it be known to him that the condoms were there, and he looked at them.

She said it may have been one of those condoms that he used, but she couldn’t remember if that was the case. [ 41 ] LP was asked in cross-examination whether Mr. Beauregard had expressed any frustration or difficulty with the condom use. She replied, “A little bit”. LP agreed that she had not mentioned that in any of her statements to the poliec, but added, that he didn’t say anything, but was fumbling a little. She agreed that as far as she knew, he maintained his erection and was able to ejaculate. LP was asked in cross-examination whether Mr. Beauregard expressed verbally any reluctance to use a condom.

She answered that she couldn’t recall if he did, but she had the impression that he was a little reluctant to use a condom, but she didn’t address it, and if he did express any reluctance, she ignored it. [ 42 ] LP guessed that their consensual sex lasted about 15 to 20 minutes, but she couldn’t remember exactly. After the sex, she said that they smoked on her oil pen vape that she uses to help her sleep. In cross-examination she said that her vape pen is a THC pen, and that one does get a high from it. She said that both she and Mr.

Beauregard took puffs. [ 43 ] Her evidence was that she is incredibly uncomfortable with people in her room when she is going to sleep, so she needed something to calm her down. They then fell asleep. In cross-examination she was asked about her anxiety about having someone sleep over. LP said that she felt fairly confident to go to sleep, because she had others in the house. Her evidence was they had just had sex and Mr.

Beauregard had respected all the boundaries that she had put out. [ 44 ] In direct examination LP said that she thought that she was on her left-hand side when she fell asleep, although she added that

she does move a lot. She said that she was definitely on her left side at one point and Mr. Beauregard was behind her at some point and had cuddled her, put his arm around her. She said she wasn’t fully asleep, but he began to nuzzle her and that’s when she fully woke up. He had put his head on her shoulder and was caressing her a bit on her neck, shoulder and arms. Her evidence was that didn’t bother her at that time, “It was kind of sweet”. She said that she nuzzled back in a bit, but didn’t do any big gestures; she was going to fall back to sleep.

She said both of them were not wearing any clothes at this point. In cross-examination she said that when she first fell asleep, he might have been against her upper body, and their legs may have been intertwined. She added that she liked to cuddle or spoon, with her back facing his chest, sleeping on her left side. [ 45 ] She said that then Mr. Beauregard started touching her with his penis in between her legs. She said that she didn’t like this, it made her very uncomfortable. She said that he did not say anything at that point.

She said that she pulled away – at least her pelvis – she moved further away so he wasn’t touching her, so she didn’t have contact with his skin in that area. At this point they were in the center of the bed – a double bed. She couldn’t remember if she said anything at that moment. Her evidence was that he then pulled her hips with his hands into his pelvic region. She said that she definitely didn’t like that. Her evidence was that she voiced, “What are you doing”. “I don’t want that”. She didn’t remember her exact words.

She put her hand behind her back so that it was against his lower belly, above his penis to push him away from her, because she knew he didn’t have a condom on – she could feel that he didn’t. She believed that she mentioned at some point, when his penis was near her vagina, that he didn’t have a condom on, but she couldn’t be completely certain that she did so. [ 46 ] In cross-examination LP said that yes, when she felt his erect penis against her, that was when she became more reluctant about what was going on.

She said that she was very aware that he did not get a condom, made no gesture to get a condom and she could feel him against her skin. She said at that point, he had not penetrated her, but his penis was rubbing her – searching. She agreed that when they were spooning, that his penis was generally in the area of her buttocks. [ 47 ] In cross-examination, LP agreed that it was not until Mr. Beauregard’s erect penis penetrated her vagina that she said something. [ 48 ] LP was asked about her height and weight in cross-examination, and she agreed that she was taller and larger in stature then Mr. Beauregard.

She agreed that she wasn’t sure exactly what she then said, but that it was along the lines of “stop” or “no”. She added, “And I pulled away immediately”. LP said that she felt his penis on her, on her vagina, going there, and she pulled away, but that he still managed to get the tip of his penis in. She said that she used her legs and pushed her pelvis forward. She agreed that she did not get up or walk away. [ 49 ] LP said that Mr. Beauregard kept pulling her closer. Her evidence was that she said “No”, loud enough for someone beside her to hear. She said that she didn’t scream it out, but just said “No”.

She said that she realized that Mr. Beauregard was stronger than she was and was pulling on her and that she kind of submitted at that moment. She said that she knew that he had a past incarceration and that flew into her head, as well as the thought that he could have been lying “about everything”. She said that they had had a conversation about her previous incident, and that she needed to be gentle and cautious and that certain things were triggering for her.

She said that that force that he was using was triggering her, and considering that they had already discussed it, that was a huge alarm in her head and that he was disrespecting that and not following through with that. She didn’t say anything about these thoughts but kept continuing to pull away but he kept pulling her back - two to three times. She said that at that point she felt like she would let it happen, that she froze and didn’t feel safe to do any more.

At this point her hands were behind her back on his lower belly and she was still trying to keep that distance between his penis and her vagina, that she wasn’t focused too much about getting her upper body away from him. She wanted there to be enough space that he wouldn’t be able to penetrate her. She said that he did his thing, and continued to have sex. She said that she didn’t know how long this lasted. He said that he was going to come, and that she almost jumped off the bed. She said that her upper body came right up, and she was on her right arm, although her lower body was in the same place.

She said, “Don’t do that”. She said that she wasn’t normally that assertive, but she said, “Don’t do that” and he said, “too late” and then he ejaculated. She said he had one hand on her neck in her hair and the other hand pulling down on her hip when she started to move, pulling her back into him.

She said that he then penetrated her vagina with his penis and continued to do so, without a condom. [ 50 ] In cross-examination LP agreed that other than the penetration of her vagina, that there was nothing else overtly violent about what happened, that she didn’t suffer any injuries. [ 51 ] In cross-examination, LP was asked whether the Accused said anything when he penetrated her, and she said that she wasn’t sure, that he might have, at one point, tried whispering something in her ear that maybe he thought was sensual, but it was inaudible, perhaps he was just making a noise.

LP agreed that the sounds were of pleasure and that he was breathing heavily. [ 52 ] In cross-examination LP was asked to confirm that there was no indication from Mr. Beauregard that he heard her when she said “No” or “Stop”, or something else. She agreed, saying that she couldn’t say whether he heard or not. She agreed that they weren’t face to face at that point.

She added that he was holding on to her tighter, she was pushing him away, and he was pulling her back, so that he was definitely getting indications from her, from her body language that she wasn’t into it. [ 53 ] LP was asked in cross-examination how long it was from that point and when he penetrated her. She said that it was maybe an hour after they had used her vape pen. She said that everything happened between around 12 am and 3 or 4 am. [ 54 ] LP’s evidence was that the condoms were where she had previously shown him; they were beside the bed. He did not put one on.

She said that she had made it very clear to him in conversations they had prior to these events that the only way that she would have sex without a condom was if both of them had got tested. [ 55 ] LP’s evidence was that she is very responsive to touch and her body – she said, “I had an orgasm” after she submitted to it, that he happened to be in the right place, and it stimulated her enough that she had an orgasm.

She repeated that she told him to not ejaculate inside her, but she didn’t know the exact time she said so. [ 56 ] After he ejaculated, her evidence was that she didn’t know if she was in shock, but her mind started reeling. She described thinking, what if he had something, did that mean that she was going to catch something. She said that she said that she had to get up to

pee. When she returned to the bed he was still there. She said that they went to sleep, but it wasn’t exactly a restful sleep. [ 57 ] In cross-examination, LP agreed that she had not got up, screamed or left the room. She was asked why this was given her evidence about her comfort level with the others in the house. She said that she didn’t because she wasn’t sure how her ex might react. She said that he could be violent, and that if she had screamed, he would be there.

She said that she didn’t want to anger anyone, that she didn’t want it to turn into something, with someone arrested or hurt and that it could just come back on her. LP added that she was in such a vulnerable position, that she was lying naked in bed. [ 58 ] LP was asked in cross-examination how long it took after the initial touching and penetration with his penis. She said probably about a minute. She was also asked how long it was after she “relented” to lead to penetration. She said that she wasn’t sure, but her best guess was probably 15 minutes, but it seemed that it was shorter than that.

It was put to her that she told the police that the entire incident lasted about two to three minutes, LP agreed that that timing made more sense, and that her recollection would have been better when she spoke to the police than two years later at trial. She agreed that the non-consensual activity took place in a couple of minutes. Throughout that activity LP’s evidence was that she was on her side with her leg up over his. [ 59 ] In cross-examination she was asked what she was doing physically to show that she was having an orgasm after the non- consensual sex.

She said that she ejaculates herself and that release feels good, so she may have moaned. She agreed that her vaginal area was naturally lubricated, especially where they already had had sex, so that hitting the right spots, whether her mind was in it or not, would produce that. She reiterated that after she had the orgasm, he said that he was going to come. She said instantly, “No don’t do that”, and her right side came off the bed, but her left shoulder was still on the bed. She was asked where the ejaculate went.

She said that he grabbed her and pulled her in while he ejaculated and that he had one hand pushing her against him so she wouldn’t move forward and that the ejaculate probably did go other places. [ 60 ] She was asked where she went to clean herself up after that. She said that she went to the washroom across the hall from her room. She was asked in cross-examination whether she thought about talking to one of her roommates or calling the police at that point and she said “no”.

She added that at that point she was very aware that he knew where she lived, and she was going through all the possible scenarios, and she didn’t want to anger him. [ 61 ] LP said in cross-examination that after she returned to bed, she thought that Mr. Beauregard did put his arm around her. LP agreed that at no point prior to sending him text messages later that day, did she, or Mr. Beauregard address what had just happened.

LP testified that she intentionally chose to act like everything was fine and she drove him home. [ 62 ] She admitted that her fear of diseases, of him giving her a disease, wasn’t just related to him, it was to anyone. [ 63 ] In cross-examination she agreed she gave two statements to the police. The first was to a Constable Ryan on July 2, 2020, and the following day gave a more fulsome statement to Detective Constable Brown. She said that she had briefly glanced over these statements.

LP was asked whether she remembered Detective Constable Brown asking her whether she verbalized anything during the unprotected and non-consensual penetration. Defence counsel put to her that she replied that during the first time she said something, but that she couldn’t quite remember if she said anything that was coherent. She agreed that she had.

Defence counsel put to LP that when Detective Constable Brown asked her about the second she told him that she remembered saying something, but she didn’t know if she mumbled. [ 64 ] Defence counsel put to LP that the evidence she gave to the police was that she wasn’t sure that the “no” or the “stop” was either coherent or mumbled. She testified that she knows that she said “no”, but she didn’t know if he heard her. She agreed that he may not have heard her say “no” or “stop” or that he ignored her, but added that he didn’t stop. She stated that she was pushing him away and pushing herself further away.

She said that that happened a few times and that she was trying to use this as a barrier between them. [ 65 ] LP agreed that when she spoke to the police, that a lot of her focus was on the risk about getting an STD. She agreed that she told the police that she wasn’t sure that she wanted him charged until she found out whether she had caught something. She said that she had a friend who had caught herpes from her boyfriend who hadn’t told her that he had herpes.

She said that that was where her concern about getting an STD came from. [ 66 ] Her evidence was that when she woke up in the morning, he was on the right side of the bed and she on the left. She said that he was on the side of the bed nearest the door, and she was very aware that she’d have to get around him to get to the door. She said that she waited to get up until he was ready to leave. She thought that he had to leave around 9:00 a.m., but she wasn’t certain about this. Her evidence was that she then drove him home. She took him to his place and dropped him off.

She said that she then left and bawled her eyes out the entire time until she got home. She went into her room. She couldn’t remember when, but at some point, she sent him a text message. She said that she was kind of freaking out about the whole thing and she sat there for quite a while, at least 20 minutes before she sent him a text message.

She said that any word she thought of was almost too “nice”, that she needed it not to feel like that, so she just messaged him and told him that she didn’t like that he stuck his cock inside her without a condom. [ 67 ] LP identified a print-out of text messages between her and Mr. Beauregard. These were entered as an exhibit. She said that she thought that he responded fairly quickly to her text and that when she opened his text, that he responded all at once, one after the other, and then blocked her.

She said that she started to respond to him but was unable to get her text through. [ 68 ] These text messages read as follows: 9:51 Alexander Beauregard LP: I’m not happy about you waking me up and sticking your cock inside me without a condom when I told you not to. Then you came inside me when I told you not to. My anxiety is over the top. You said you would respect that I said we couldn’t do that unless we both got tested.

Wed 7:16 PM AB: Wow I’m sorry I was half asleep i didn’t think Im sorry Clearly your feelings have change ill leave you alone (sad face emoji) im sorry Take care [ 69 ] When counsel point it out to her, she agreed that the print-out of Mr. Beauregard’s responses reads, “Wed, 7:16 p.m.”. She said that that day was very emotional and was a blur. [ 70 ] LP was asked whether, after she returned home after driving Mr. Beauregard home, she had sent him a “kiss” emoji. Her answer was “Yes”. [ 71 ] LP agreed in cross-examination that the kiss emoji is not present on Exhibit 2.

LP was asked whether she had provided the police with only certain text messages between her and Mr. Beauregard, but not all of them. She said “yes”, just “what we had talked about before where Mr. Beauregard stated it would have been rape if he did it and said he wouldn’t do that, and what I sent to him afterwards”. Defence counsel put to LP that she had told the police that there were other text messages between her and Mr. Beauregard about condom use and consent that she had deleted.

She agreed that she had deleted her messages, that she didn’t want to see him and wasn’t sure whether she should even go to the cops - that she was very conflicted. [ 72 ] LP also agreed in cross-examination that there were some text messages between her and Mr. Beauregard regarding her police statements, which she also deleted. She added that she thought they had been provided to the police and said she wasn’t sure why they weren’t. Asked in cross-examination whether Mr.

Beauregard had said in a text message in response when she brought up the police, “I can’t believe you called the cops on me, you were into it, you were gyrating, moving against me, so you wanted it”, she said that she couldn’t recall his precise words. She agreed with defence counsel that Mr. Beauregard had not said that he heard her stay stop or no. She added that when she had texted him that she was unhappy with what had happened, he said, “wow, I’m sorry”, “I didn’t think”, “I was half asleep”. LP agreed in cross examination, that after that Mr.

Beauregard texted, “clearly your feelings have changed”, that according to Mr. Beauregard at that point, he thought that everything was fine between them. [ 73 ] LP said that after these events she didn’t have any further contact with Mr. Beauregard. She did recall one text conversation with him when he said, “I can’t believe you called the police on me”. She said that she thinks he unblocked her to send that message, to let her know that the police had shown up and he wasn’t happy about that. Her evidence was that Mr. Beauregard mentioned that “he thought she wanted it because she was moving her hips”.

She said that was something that she did, as a self-soothe to go to bed, that her boyfriends hated, that she rubs her feet together which can go up to her hips – but that she wasn’t touching him, that this was a self-sooth to go to bed. [ 74 ] In cross-examination, LP was asked about her evidence in direct about rubbing her feet together as a means of falling sleep, and this causing hip movement. She said that that happened throughout the night. [ 75 ] LP was asked in direct examination about references on the printout of the text messages (Exhibit 2) to “Frenchy”. LP said that Mr.

Beauregard had adjusted her nickname. It had been “wifey” or something like that, but he cleared that nickname. She said that he had told her his nickname was “Frenchy”, but she hadn’t used that name, but that afterward she switched his name to “Frenchy” so there was some distance. [ 76 ] In re-direct examination, LP was asked about the Exhibit 2 print-out of texts between her and Mr. Beauregard. The print-out shows that LP had set the nickname for Mr. Beauregard as “Frenchy” and that she had set the emoji to a smiley face.

Her answer was that she didn’t want him to think that she was coming at him angry, and have him get defensive, that she just wanted to state that she was unhappy with what he did, that she wanted to essentially get his side “what were you thinking”, “we had this conversation”. She said that the Accused had said he would respect that she had said that we “couldn’t do that” unless we both got tested. Her evidence was that he was aware, and that all he said was “sorry”, and that he was breaching what they had decided as consensual. [ 77 ] She said that she sent the kiss emoji after she dropped him off.

She said that she wanted to act like everything was OK, that she couldn’t deal with it at that time and wanted to wait to do so until she felt safe. She said that she went home and cried for two days and realized that obviously that wasn’t how she was supposed to be feeling after something like this. [ 78 ] The Crown called no other witnesses. However, after the testimony of Mr. Beauregard, Defence counsel raised the issue of Brown v. Dunne given some of the evidence Mr.

Beauregard had given as a result of questions put to him in direct examination, when those questions had not been put to LP by Defence counsel in cross examination. Counsel agreed that LP could be recalled for the limited purpose of putting those questions to her by Defence counsel. [ 79 ] When LP was re-called she agreed it was possible that when she reached back to push Mr. Beauregard’s body penis away from her body, that she had touched his penis, however she denied that she stroked his penis, and maintained that she had pushed it away.

She said that she couldn’t remember if the second time they had sex that evening (the incident at issue) if they had sex in the missionary position. The Agreed Statement of Facts

[ 80 ] The Crown and Defence presented an Agreed Statement of Facts (Exhibit 3) which provides as follows: Pursuant to

section 655 of the Criminal Code of Canada , the Crown alleges, and the accused, Mr. Alexander Beauregard, admits, for the purpose of dispensing with proof thereof, that the relevant evidence of D/Cst. Sara Brown (now D/Cst. Sara Bennett) is as follows: 1. D/Cst. Sara Bennett took a video statement from LP on July 3, 2020. At the time, LP expressed being “back and forth” on whether she wanted to go to Court. 2. In general, the police do not press sexual assault charges unless the complainant wishes to proceed. 3. On July 20, 2020, D/Cst. Sara Bennett spoke with Alexander Beauregard over the phone. Mr.

Beauregard was irate and shouted at her that if this was about “that girl”, the sex was consensual. The Evidence of Alexander Beauregard, the Accused [ 81 ] Mr. Beauregard gave evidence in his own defence. He was the only witness called by the Defence. He is 31 years old and works as a breakfast cook at a fast-food restaurant. He said that he knew LP, that he had met her through Facebook dating at the end of June, going into July 2020. His evidence was that he had received a “like”, he saw who it was, messaged back and they started conversating from there. He described casual texting for about a week.

He said he thought they had one or two voice calls, but it was mostly texting. [ 82 ] He was asked by his counsel to describe what had happened the next time that he met LP in person. [ 83 ] He said that they met in person shortly after that. She picked him up and they drove around Halifax and then walked around downtown Halifax for a few hours. [ 84 ] The next time that he met LP was on the day of the alleged offence. He said that she came and picked him up late one night. He said that he had finished work and was home, and he and LP were messaging about how the day was going.

She expressed that she wished they could meet up. He said that he said that he was tired, but he also wanted to meet. His evidence was that they talked back and forth about meeting up and then he said why don’t we meet up, and if you want to, go for a walk. So, they met up and went for a drive. He said they ended up going to Alexandria’s for donairs and Needs for candy and pop and then proceeded back to her place. His evidence was that he brought his bong from his house to smoke weed and that was what they smoked at her place.

He said that he didn’t smoke a joint because he doesn’t like them. [ 85 ] His evidence was that they then went upstairs, relaxed, cuddled, and watched Big Bang Theory. He said that one thing led to another, and they had sex with a condom – consensual. His evidence was that he probably passed out at about 1:30 or 2:00 a.m. He said that he woke up about 7 a.m. to LP grinding her butt on him. He said that 99 % of the time he wakes up with an erection. He said that he woke up erect, whether that was from her grinding on him, or because of him being “the natural man he is”.

He said that he put his arm around her and cuddled in more, and as that happened LP reached her arm around behind her and started stroking his penis. He said that he then took his arm back and started nuzzling his penis between her butt cheeks, not to penetrate her, but to as a cozy pocket to get more comfortable. [ 86 ] Mr. Beauregard stated that she then turned around, said good morning, and kissed him. His evidence was that he said good morning and that from there it went from missionary to him getting her up into doggie position and they had sex that way.

He said that she was moaning pretty loud and that he gets off when the woman gets super-excited and very verbal about what’s going on. He said that he gets excited and comes fast. His evidence was that she said that she was coming, and that he said that he said that he was about to come, so he pulled out, and ejaculated on her back, as far as he remembered. His evidence was that after that, he said, “what do you want me to wipe you with”, and she said, “grab the robe that’s on the back of my door”.

He said that he did so, wiped himself a bit and wiped her off and perhaps threw the robe in the hamper beside the door. [ 87 ] Mr. Beauregard said that she then went to the bathroom, he did so, then she returned to the bed and they cuddled for a bit. He said that he then decided that he wanted to go home in the morning. He said that he told her that he had to work, although he said that he didn’t have to work, because he had called in sick. LP drove him home in the morning.

He said that he remembered getting a text from her, not first thing in the morning, but afterward, saying that she didn’t feel comfortable that they had unprotected sex that morning. He said that she added that she felt like she needed to call the cops. He testified that he was mad, and messaged back. He told her “you can’t call the cops on something you did”. “We both as adults had sex this morning. You didn’t make any signs to me saying ‘no’, nothing. So how was I supposed to know this was non-consensual”. He testified, “to me everything was consensual”. [ 88 ] Defence counsel asked Mr.

Beauregard more questions. Mr. Beauregard said that LP lived in Eastern Passage. When they arrived at her house, no one was home. [ 89 ] Mr. Beauregard agreed that he smoked marijuana with LP, and also her THC pen with concentrate before bed. He said that they were in the dining room first downstairs where a balcony was and that was where they smoked the joint. They then went up to her bedroom. This was about 12:30 a.m. or 1 a.m. He said that if LP said that they then watched the Big Bang Theory, that was probably what they watched, as he didn’t really remember.

He said that this led to them making out, touching each other and led to consensual sex with a condom. [ 90 ] Mr. Beauregard was asked by his lawyer whether during that consensual sex he had expressed discomfort or desire to use a condom or not. Mr. Beauregard’s response was that when they had sex the first time, she pulled out the condoms and put them “there” and said we were going to use a condom, so he “reached over and grabbed it”. He said that he was having a little bit of trouble putting it on, so she actually put it on him. He said that he had an orgasm and he believed that she did as well. [ 91 ] Mr.

Beauregard testified that after that he rolled over and they may have watched TV for a few minutes before he passed out. He was asked what physical contact he had, if any, with LP while sleeping. His response was that he woke up to “her ass on my penis”

in the morning. He described LP’s “ass” “wiggling or shaking” and said that she was trying to nestle into his chest and groin area, “just trying to get more comfortable, I guess, she wanted to be cuddled”. He described them spooning, with him being the big spoon and her the little spoon. He said that his face was towards her neck area. He said that he is 5’7” and weighs 200 lbs now, but at that time weighed less, about 175 to 180 lbs. [ 92 ] Mr. Beauregard repeated that he woke up erect.

He said that nothing was being said between them, just morning groans, until LP turned around, faced him kissed him and said, “good morning”. He was asked if at any point he ever heard LP say “no”. His response was “never”. He said if she had said “no”, he would have stopped any action being performed. He testified that when it comes to sex, he is “very self cautious” and that he was assaulted when he was about 10 years old by a close person in his family. He said it was a similar incident, that he was taking a nap and the person cuddled up to him and then started touching him.

He added that for this situation to have happened if she had said “no”, he would have stopped instantly. Mr. Beauregard was asked whether he ever heard LP say “stop”. His response was “never”. He was asked whether he ever heard LP use any language that might have implied “stop” or “no”. His response was “no language that would have implied that, no”. [ 93 ] Mr. Beauregard said that at no point did LP ever push him away. He said that she never pushed her arm around to push him away, but that when they were cuddling, she reached around her to stroke his penis.

He said that this was part of the foreplay, he guessed, in that moment. [ 94 ] He agreed that after foreplay he penetrated LP. He was asked by defence counsel whether LP at any point made any comments about using a condom. Mr. Beauregard denied that she did so. He said that if LP had said “stop” that she wanted him to put one on, he would have reached over for the condoms that were clearly right there and put one on. He said that at the time, in that moment, he didn’t think that was what was going on because she didn’t express anything to him.

He said that she didn’t verbally, or through her body language, anything, tell him “no”. [ 95 ] Mr. Beauregard was asked to describe LP’s body language when they were cuddling before he penetrated her. He said that it was in response to him being hard, that she reached around and stroked his penis when he was erect, and then turned, faced him, kissed him and said good morning.

He said that to him, that was all indications to him that they were to foreplay and whatever was to follow, would follow, but if she had said, “let’s put on a condom on”, he would have put one on, but he was not told to put a condom on at that time. [ 96 ] He said that LP had an orgasm because that’s what made him come right afterwards. He said that he had mentioned “too late”. [ 97 ] Mr. Beauregard was asked whether there were other indications, physically, that LP was having an orgasm.

He described LP as moaning loudly, with her eyes in the back of her head and he said that she gripped his shoulders really hard during sex. In terms of LP’s orgasm, he said that after finishing sex doggy-style her body went limp, her head went into the pillow and that the only thing left was her butt sticking up. [ 98 ] Mr. Beauregard was asked questions about the screenshot of the text messages, marked as Exhibit 1. He said that he was familiar with these text messages. He was asked by his counsel, how he interpreted LP texting, “Lol I don’t make the first move”.

He said that how was he to know if she was into wanting to hold hands, wanting to kiss. He said that if they were walking, how was he to know if she was OK with him reaching out to hold hands. He said that he interpreted it as the same thing, whether sex or anything, that she doesn’t make the first move on anything. [ 99 ] He was also asked how he interpreted her text, “But would you stop if we were right in the middle if I asked you to”, and that he responded, “Of course I would that’s rape”.

He said if she were to ask him while they were having sex to stop having sex, then “I guess we’re not having sex, that means they’re stopping right there, if I was to continue having sex with her when she said to stop that’s rape and I know the difference”. [ 100 ] Mr. Beauregard was asked by his lawyer about text messages LP sent him after this incident. He testified that he didn’t have those text messages. He was asked by his counsel why he didn’t have them.

He answered that as soon as he read the first text message that she sent saying that she felt uncomfortable with the fact that we had unprotected sex in the morning and that she didn’t know whether or not she should call the cops, her telling him that she wanted to call the cops was like a trigger, it made him mad, that he couldn’t believe that this person would try to say that he raped her.

He said that he said you can’t call the cops on something that you did, you had sex as an adult with me, it was consensual, and only afterwards you’re telling me that you felt uncomfortable, you can’t call the cops on me for that. He added that he was mad and blocked and deleted her and that was it, that he didn’t say anything else after. [ 101 ] Mr. Beauregard said that he recognized the text messages marked as Exhibit 2. He was asked what his reaction was when he read LP’s text: I’m not happy about you waking me up and sticking your cock inside me without a condom when I told you not to.

Then you came inside me when I told you not to. My anxiety is over the top. [ 102 ] Mr. Beauregard testified that he couldn’t see when she sent that message. He said that he responded, apparently, Wednesday at 7:16 p.m., but he said that LP sent previous text messages about calling the cops, and said she felt uncomfortable with the fact that we had unprotected sex. His lawyer asked him about his evidence that he had just given that he had blocked and deleted LP.

He replied that he had received a phone call from a detective about this incident and he asked if it was about “that girl”, and if it was, he said, it was consensual sex. Mr. Beauregard said that he blocked and deleted LP on Facebook Messenger, but he still had her text messages. Mr. Beauregard said that the (Exhibit 2) messages were Facebook messages. [ 103 ] Mr. Beauregard was asked what he meant by his message to LP on Wednesday at 7:16 pm, “wow, I’m sorry”. He said, “as in that LP actually felt uncomfortable to the point that she actually called the cops”.

He said that he felt that LP was over-reacting when she was saying what she said. His evidence was that they were adults and did what they did. He said, “It’s not like I forced her to do what she did. I didn’t know what else to say, ‘I’m sorry you felt that way’. He testified that he responded, “Clearly your feelings have changed”. He said that she didn’t want to message him back, but he wanted to talk about what had happened, to bring to light her

decisions that night about what happened. His evidence was that she had to be accountable for being an adult, that she had sex with him without a condom, and that she was upset with herself to the point that she had to say, “I felt uncomfortable”. He asked why LP didn’t tell him during sex because he would have stopped. He said that it was very confusing that not everything was presented. He said that it was jumping from one thing to another and leaving a big gap and that he didn’t really understand it. Mr.

Beauregard was not asked by either Crown or defence counsel what he meant when he gave that evidence. [ 104 ] Mr. Beauregard was asked what he meant by, “Clearly your feelings have changed”. He said that LP was acting as though everything was OK between them, she dropped him off, that everything was fine. He said that it was after he got the call from the detective, that he messaged LP, and that he wanted to conversate with LP about what had occurred. [ 105 ] Mr. Beauregard was asked about his evidence that he was sexually abused as a child and whether he told LP.

He said that he believed that he did because he has been “coming out with it” for the last four years. [ 106 ] He denied that LP pulled her pelvis away from him, (except to turn over to face him) and denied that he grabbed her to pull her towards him. He said that he doesn’t even hold on to his partner when they have missionary sex. His evidence was that the only time he grabbed her was when they were in doggie-style with his hands around her waist. [ 107 ] In cross-examination by Crown counsel Mr. Beauregard said that when he met LP on June 30, he said that he had just got a job framing – carpentry.

He had been there for about a month. He said that he didn’t know if he was to work on the holiday, July 1. [ 108 ] Mr. Beauregard’s evidence in cross-examination was that when they arrived at LP’s house, he smoked his bong and rolled LP a joint. He said that he didn’t smoke a joint as he doesn’t like doing so. He said that he had marijuana and tobacco in his Bong, and that was another reason why he rolled her a joint, since she didn’t smoke cigarettes. In terms of the kind of marijuana, Mr.

Beauregard said that he doesn’t like stevia, that he has ADHD, and stevia is meant for uplifting energy, and he has enough energy. He said that he smoked a couple of bowls, so about half a gram. [ 109 ] When asked if marijuana had ever impacted his memory, his evidence was that perhaps it did when he was 14 years old, but at this point, he smokes weed daily and his memory is not really affected by it. He said that stress over things that had happened in his life was more likely to affect his memory than marijuana, and that his brain suppressed a lot of memories over the years.

His evidence was that when his brain starts over-thinking about something bad that has happened to him, he constantly thinks that the worst is going to keep happening to him and his brain just shuts off on anything else that is around him. He added, “if I’m not looking at you and not actually acknowledging you, then I’m not probably focusing on you, I have ADHD really bad so”. [ 110 ] Mr. Beauregard was asked in cross-examination about the first incident of sex with LP. When asked who initiated it, he said both of us. He said that both of them started kissing each other when they were cuddling.

His evidence was that the sex was in the missionary position. He said that the foreplay got intense, he got a hard-on while they were cuddling and kissing, and it went from him taking his pants off to her putting a condom on him. He said that the condoms were on the dresser right beside the bed, not on the floor. He said that when they first had sex, the condoms might have been in the drawer and that was when she probably pulled them up, but as he remembered seeing them, they were on the dresser. The dresser was on the right-hand side of the bed – the side where he was in the bed.

He said that when they were having sex his hands were planted beside her, planted into the bed. He said that LP’s hands reached around him, groping his back, pulling him towards her. [ 111 ] When asked by Crown counsel whether he and LP were saying anything at this point, Mr. Beauregard said, “a lot of moaning”.

He added, “I’m very self-cautious when I’m having sex, so I do say like, “Are you enjoying this” quite often, which some women find annoying, and some oh like I don’t care, but I’m very self-cautious, so I ask, “Do you like this, is this good”, “do you want me to switch you around…I’m very cautious”. [ 112 ] During that first sexual encounter, Mr.

Beauregard’s evidence was that LP didn’t really say that they had to put it on, she just grabbed the condom, and he knew what she wanted him to do, he didn’t expect her to put it on something else. [ 113 ] When asked about LP’s evidence that she had brought up condom use before that evening, he said yes, that that was over Facebook and text messages but not once was it brought up or mentioned during that night. With regard to their first sexual intercourse, Mr.

Beauregard testified that when LP grabbed the condom and brought it over to his erect penis, that’s when he knew “so we’re putting on a condom.” His evidence was that she never even said, “Remember what you said, you have to put a condom on”, “that’s not what she said”. “It went from grabbing a condom, ripping open the package and she gave it to me first, but I’m not good with condoms, so I gave her the condom and she put it on”. [ 114 ] Mr.

Beauregard agreed in cross-examination that LP had brought up the use of condoms in her previous and text messages prior to that night, but he said that she never brought up the use of condoms that night, and that the first time she did so was afterwards when she said in the text message about being uncomfortable with the fact that they had unprotected sex. [ 115 ] Mr.

Beauregard repeated in cross-examination that if LP had told him to stop or said that we had to put on a condom first, he would have been totally on board with it because he had been assaulted and he knows the feeling of someone taking advantage of you. [ 116 ] In terms of actual discussions between them before that evening, Mr. Beauregard was asked whether he agreed that LP had said in texts that she wanted him to wear a condom, or words to that effect. His answer was as follows: That she would like to possibly wear a condom, I guess.

The previous times that she was saying that said she wanted me to wear a condom, for me that was sex number one, that was when we had sex the first time. What happened after that, the second time we had sex, I didn’t…like I she never said to me that she didn’t want, you know what I mean….How was I to know that she didn’t change her mind. In the morning, it was like, well you know what, I trust him enough, I’ll let him have sex without a condom, you know what I mean, expecting that I was going to want to see her again…. But like I say, I would have put on a condom if she had simply asked. [ 117 ] Mr.

Beauregard was asked in cross-examination whether after they had sex the first time, they each had a few puffs of LP’s vape

pen. He said that he couldn’t remember for sure if he puffed it, but he did recall that LP puffed it. [ 118 ] Mr. Beauregard disagreed in cross-examination that LP had reached around to push his body away the following morning during the second sexual encounter. He said that LP reached around to stroke his penis. [ 119 ] In cross-examination, Mr. Beauregard’s evidence was that the first time they had sex, it was missionary position only. He said that the second time they had sex, without a condom, it was missionary and doggie position. Mr.

Beauregard denied that they were lying side by side during the second sexual intercourse, as had been LP’s evidence. He said that the only time that he pulled LP’s hips towards him, was when they were having sex doggie style, when he had his hands around her waist. [ 120 ] Mr. Beauregard denied in cross-examination that during the second sexual encounter LP had said, “you better not come”, or words to that effect, Mr. Beauregard’s answer was “never”. He said that the “don’t come in me” came afterwards when she said that she was about to come, and then she said, “Don’t come in me”, and he said, “too late”. Mr.

Beauregard said that she never “presented that” before they had sex. [ 121 ] Mr. Beauregard was asked in cross-examination about text messages between him and LP after that evening. His evidence was that prior to the Facebook texts in Exhibit 2, LP had sent him real text messages, not Facebook texts, saying that she felt uncomfortable with the fact that they had had unprotected sex and that she felt like she should call the cops. He said that these messages were sent on July 1, 2020.

His evidence was that he told her that you can’t call the cops on something you did, that you were well aware of, you didn’t tell me “no”, if she would have said these things to him, he would have stopped having sex with her at the time. His evidence was that he was trying to make her aware that you can’t just call out these types of accusations, especially when it was, he said/she said. [ 122 ] He said that the Facebook texts in Exhibit 2, “wow, I’m sorry, I’m sorry” all came after he had blocked her, and that he unblocked her because he had received a phone call from the detective. [ 123 ] Mr.

Beauregard said that he set his phone texts from LP to “ignore” and that he unblocked her from Facebook because he wanted to have a conversation with her about what had happened, but she didn’t message back. Proper and Improper Uses of Evidence [ 124 ] This Court heard evidence that LP did not get out of bed at the time of the incident, that at some point she submitted, no longer trying to fight back or push away, that she told the police that Mr.

Beauregard was not overly violent, and she didn’t have injuries or bruises, that she didn’t call out for help from roommates, and that her body reacted, i.e, her vagina was lubricated and she had an orgasm. This Court cannot use any of this evidence to draw an adverse inference against LP on the issue of whether or not she was consenting. These are all now rejected stereotypical assumptions about how a victim of sexual assault should react and behave. [ 125 ] After the alleged assault, this Court heard evidence that LP sent a kiss emoji to Mr.

Beauregard, and initially acted as though everything was fine between her and Mr. Beauregard. This evidence is not admissible for the purpose of stereotypical assumptions about how victims of sexual assault are supposed to behave. [ 126 ] The fact that LP didn’t get out of bed or call out for help can be used in assessing if Mr. Beauregard had an honest, but mistaken belief in communicated consent. That evidence can be used for this limited purpose. [ 127 ] The fact that the Court heard evidence that Mr. Beauregard possibly had a prior criminal record cannot be used to assess his credibility or his character.

However, LP’s belief in the existence of that criminal record, is relevant to her state of mind, as the state of fear she expressed in her testimony, but not at the time to Mr. Beauregard. [ 128 ] In terms of the text messages exchanged between LP and Mr. Beauregard which were marked as Exhibit 2, LP’s messages cannot be used as a prior consistent statement to bolster her credibility, but these messages could be admissible as an admission against interest on the part of Mr. Beauregard. The text messages sent before by LP are relevant to provide context to Mr.

Beauregard’s responses. [ 129 ] The text messages in Exhibit 1 cannot be used to infer anything about whether or not LP consented to unprotected sex with Mr. Beauregard at the moment that that sexual encounter took place. [ 130 ] I note at this point, that there was no evidence or argument by either party that LP’s and Mr. Beauregard’s marijuana use affected their memory or impaired their judgment in any way. Text Messages as Admissions Against Interest [ 131 ] In R. v.

Langan , 2020 SCC 33 , rev’g 2019 BCCA 467 , the Supreme Court of Canada reversed the British Columbia Court of Appeal’s majority decision, allowed the appeal, and adopted the dissenting reasons of CJ Bowman. At paras. 84 and 85 of Justice Bowman’s decision, he agreed with the majority analysis at para. 43 of its decision, where the majority states: In this case, the judge failed to analyze the admissibility or proper use of the text messages. However, there were legitimate purposes making the text messages admissible.

The text messages sent by the appellant after the alleged assaults were admissible as admissions against interest by the appellant, and the text messages sent by the complainant were admissible to provide context to the answers given by the appellant. [ 132 ] In terms of timing, and to provide context to Mr. Beauregard’s texts in response, I accept LP’s evidence that she sent a text to Mr. Beauregard at some point on Wednesday, July 1 saying that she wasn’t happy about him sticking his “cock” inside her when she told him not to and that he came inside her when she told him not to.

As noted previously, there are undated texts in evidence that were sent via Facebook Messenger on Wednesday at 7:16 p.m. from Mr. Beauregard to LP in the following order: “Wow I’m sorry; I was half asleep I didn’t think”; “I’m sorry” and “Clearly your feelings have changed I’ll leave you alone (sad face emoji) I’m sorry”.

[ 133 ] Mr. Beauregard provided testimony to explain what he said in these text messages. He testified that prior to the Facebook text messages in Exhibit 2, he received a text message from LP accusing him of non-consensual intercourse and saying that she was going to tell the police and he was angry about this, so he replied by text that she couldn’t call the cops for something that she consented to. Mr.

Beauregard was clear in his trial evidence, that the text messages that he sent (Exhibit 2) were sent after he had spoken with a police detective, and that he did not send these texts on July 1, in response to LP’s message saying that she wasn’t happy “about you waking me up and sticking your cock inside me without a condom when I told you not to”. [ 134 ] We know from the Agreed Statement of Facts (Exhibit 3), that Mr. Beauregard spoke to Detective Constable Bennett over the phone on July 20, 2020. July 20, 2020, was a Monday. [ 135 ] If this timing by Mr.

Beauregard is to be believed, it would mean that after hearing from the investigating officer 2.5 weeks after the events in question, (on July 20, 2020) that Mr. Beauregard heard the allegations from the officer, waited two days (from Monday July 20 to Wednesday July 22, 2020, to unblock LP from Facebook Messenger and gave these responses. [ 136 ] Mr. Beauregard testified that what he meant by “I’m sorry”, was that he was sorry that LP felt that way and that he just wanted to chat with her. [ 137 ] I find that it is highly likely that Mr.

Beauregard sent a Facebook text in response to LP that same day, July 1 saying, “wow, I’m sorry. I was half asleep. I didn’t think. I’m sorry”; “Clearly your feelings have changed I’ll leave you alone; sad face emoji, I’m sorry”. It makes no sense that Mr. Beauregard sent these messages after the police talked to him about LP’s complaint against him on July 22, 2020. As stated previously, saying, “I’m sorry, I was half asleep, I didn’t think, I’m sorry”, has nothing to do with Mr.

Beauregard unblocking LP from Facebook, after speaking with the police, so that he could talk to her about them being two consenting adults having sex. This Court finds that these statements are admissions against interest, both corroborating LP’s version of events and undermining Mr. Beauregard’s credibility. [ 138 ] If this Court is wrong about the timing, and Mr. Beauregard sent these texts after he talked to the police, the same analysis follows. It makes no sense that Mr.

Beauregard would say, “I didn’t think”, “I was half asleep” preceded by “Wow I’m sorry” to try to get LP to talk to him about what had happened sexually that evening. I find that Mr. Beauregard’s texts are adopted admissions, i.e., an acceptance of LP’s accusation. [ 139 ] In R. v. Preston , 2021 NSSC 212 , the complainant made a number of accusations about what had previously occurred between her and the accused over texts, and in a number of response texts, Mr. Preston’s response, was “I’m sorry, I made a mistake”. As is the case here, Mr.

Preston’s responses did not explicitly acknowledge that he sexually assaulted the complainant. However, Arnold J, in R. v. Preston , took from these responses that “I’m sorry”, was an acceptance of the accusations of the complainant. [ 140 ] As noted previously, the Court heard evidence that certain texts between LP and the Accused are missing. There is no suggestion that there are text messages missing between the particular text messages in Exhibit 2. I reject the Defence’s contention that because there were text messages between LP and Mr.

Beauregard not in evidence about the sexual intercourse at issue, that means that this Court should give no, or little weight to these texts. Mr. Beauregard said what he said in these texts. At the time he said what he said, he must be taken to have meant what he said, irrespective of whether he said in other text messages that the sex was consensual. [ 141 ] The content of Mr. Beauregard’s Exhibit 2 texts is another time that Mr. Beauregard gave inconsistent evidence. At no time in his evidence about the sexual intercourse in question, did Mr. Beauregard say that he was half-asleep at the time.

At no time did Mr. Beauregard give evidence that he “didn’t think”. Analysis Actus Reus [ 142 ] In considering whether the actus reus has been proven beyond a reasonable doubt, the principal focus is whether the complainant subjectively consented. This is a sep

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