Provincial Court

PROVINCIAL COURT OF NOVA SCOTIA

Citation: R  v Muirhead, 2025 NSPC 18

Date: 20250718

Docket:  8747918

Registry: Windsor/Kentville

Between:

His Majesty the King

 

v.

Courtney (aka Damion) Muirhead

 

TRIAL DECISION

 

Judge:	The Honourable Judge Del Atwood
Heard:	2025: 25 April, 22 May in Windsor, Nova Scotia; 18 July in Kentville, Nova Scotia
Charge:	Section 271, Criminal Code
Counsel:	Nathan McLean for the Nova Scotia Public Prosecution Service Michael Curry for Courtney (aka Damian) Muirhead

Order restricting publication  — sexual offences

 

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

 

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

 Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

By the Court:[1]

Synopsis

[1]             Courtney (aka Damion) Muirhead is charged in information 862511 with sexually assaulting JW contrary to § 271 of the Criminal Code [Code] (case 8747918).  The prosecution elected to proceed summarily.  The offence is alleged to have occurred in the community of Falmouth, Hants County, Nova Scotia on 15 October 2023.

[2]             This is Mr Muirhead’s second trial on this charge.  The first ended in a mistrial [the first trial].

[3]             The theory of the prosecution is that Mr Muirhead placed his hand under JW’s underwear and rubbed her vagina while they were passengers in the back seat of an SUV.  JW was asleep, and did not have the capacity to consent to any sexual activity with Mr Muirhead.

[4]             The theory of the defence is that JW initiated sexual contact with Mr Muirhead while they were seated in the SUV.  He reciprocated with contact that matched JW’s.  Accordingly, the defence asserts that Mr Muirhead’s contact with JW was with her consent, communicated by gesture.

[5]             I find the testimony of JW to be both credible and reliable. 

[6]             While there are certain aspects of Mr Muirhead’s testimony that might be characterized as bearing credibility/reliability deficits, I found his account to be credible and reliable. 

[7]             Additionally, the Court regards the decision made by the prosecution not to call two key witnesses as having had a significant limiting effect on the ability of the Court to make credibility and reliability assessments regarding witness testimony.

[8]             As I find the evidence of Mr Muirhead to be reasonably credible and reliable, and given the absence of certain key evidence, the Court finds Mr Muirhead not guilty. 

[9]             The following are the reasons of the Court.

Inventory of evidence

 

[10]         At the commencement of proceedings, defence counsel made the following admissions:

•        The identity of Mr Muirhead as the person seated to the right of JW in the back of an SUV driven by Mr Jerome Blye [the SUV];

•        The date and location of the offence as 15 October 2023 in Falmouth, NS; and

•        The voluntariness of a statement given by Mr Muirhead to police on 2 November 2023.

[11]         The prosecution called two witnesses:

•        JW; and

•        Michaela Carson.

[12]         Defence counsel called two witnesses:

•        Jerome Blye; and

•        Mr Muirhead.

[13]         There were no exhibits.

[14]         Mr Muirhead was born in Jamaica; on the application of defence counsel, Patois interpretation was provided to Mr Muirhead throughout the trial.  As is well known, Patois is the English-based creole language of Jamaica. 

[15]         The interpreter remained accessible to the Court during the testimony of Mr Blye (who is also from Jamaica) and Mr Muirhead.  The interpreter was able to provide interpreter services to both Mr Blye and Mr Muirhead during direct and cross examination.  I experienced no difficulty in comprehending fully their testimony without the need for interpretation.  I invited counsel to inform the Court should they require interpretation at any point; neither counsel sought assistance.

[16]         The following is a precis of what I consider to be the pertinent evidence given by each witness.  I do not find it necessary to recite in detail matters of apparent controversy that were of no consequence.

Sexual assault § 271—elements of the offence

[17]         Section 271 of the Code states:

271 Everyone who commits a sexual assault is guilty of

 . . .

           (b) an offence punishable on summary conviction . . . .

. . . .

[18]         Section 265 of the Code 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;

. . . .

[19]         The external elements of sexual assault are:

•                 an accused person having voluntary physical contact with the complainant;

•                 the objectively sexual nature of the physical contact; and

•                 the absence of the complainant’s consent.

R v Chase, 1987 CanLII 23 at ¶ 11-13,  [1987] 2 SCR 293 at 302; R v Ewanchuk, 1999 CanLII 711, [1991] 1 SCR 330 at ¶ 25 [Ewanchuk]; R v GF, 2021 SCC 20 at ¶ 25; R v Al-Rawi, 2021 NSCA 86 at ¶ 89.

[20]         Under the external-element heading, consent is determined by whether the complainant subjectively wanted the sexual contact to take place: Ewanchuk at ¶ 48; R v Barton, 2019 SCC 33 at ¶ 89 [Barton].  Any perception harboured by an accused person about the state of mind of the complainant is irrelevant in the external-element analysis; there is no need to inquire into it:  R v Kirkpatrick, 2022 SCC 33 at ¶ 28 [Kirkpatrick]; Barton at ¶ 87-89;  Ewanchuk at ¶ 30; R v BC, 2024, BCPC 138 at ¶ 10-16.

[21]         Subjective consent is defined in § 273.1 of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” 

[22]         A judicial determination of whether a complainant voluntarily agreed to engage in  a sexual act requires a subjective inquiry into the complainant’s state of mind at the time of the act: Ewanchuk at ¶ 27.

[23]         A person who is asleep is not capable of consenting to sexual activity: R v Al-Rawi, 2018 NSCA 10 at ¶ 33; R v Crespo, 2016 ONCA 454 at ¶ 8.

[24]         What will constitute the “sexual activity in question” is tied to context, and relates to particular behaviours and actions; it will be defined by the evidence and the allegations of the complainant: Kirkpatrick at ¶ 40; Barton at ¶ 88. 

[25]         Evidence of consent may be circumstantial, and may include evidence of a complainant’s words and actions, before and during the incident: Ewanchuk at ¶ 29. 

[26]         Judicial experience informs me that consent will almost always be a circumstantial-evidence issue.  There was a time in forensic history when courts needed a complainant to say, “I did not consent.”  In the result, prosecutors would typically ask the inevitable question, “Did you consent?”  A highly experienced trial judge in Newfoundland and Labrador considered a question of that nature as objectionable, as it invited, not evidence, but a conclusion. 

[27]         Consent will be assessed based on a totality of circumstances.

[28]         And so, if a complainant in a sexual-assault case describes being asleep, blacked-out, overpowered, overwhelmed by numbers of sexual aggressors present, intimidated, threatened, coerced, or otherwise deprived of agency, a trier may correctly infer, based on the circumstances, that the complainant did not consent to sexual contact, regardless of utterances that might suggest otherwise.

[29]         Consent must have been present at the time the sexual activity in question takes place:  § 273(1.1).

[30]         Ongoing consent is required for the duration of the sexual activity in question, and a person cannot give advance consent to sexual activity that is expected to happen later: ¶ 273.1(2)(a.1).    The law does not recognize broad, advance consent: Barton at ¶ 99.  Furthermore, consent to one type of sexual activity is does not constitute consent to any type of sexual activity.

[31]         A person who has validly communicated a consent to engaging in sexual activity may withdraw that consent at any time: Barton at ¶ 88; R v JA, 2011 SCC 28 at ¶ 40, 43.

[32]         There is no such thing as implied consent arising from a prior relationship or a complainant’s passivity—and so there is no defence of implied consent: Ewanchuk at ¶ 31.  Consent cannot be implied from a complainant’s silence, passivity or ambiguous conduct: Barton at ¶ 98; R v Kruk, 2024 SCC 7 at ¶ 36 [Kruk]; Ewanchuk at ¶ 31.

[33]         A complainant is not required to have offered some minimal word or gesture of objection: R v M (ML), 1994 CanLII 77 (SCC), [1994] 2 SCR 3, rev’g 1992 CanLII 4822, 117 NSR (2d) 74 (AD).

[34]         Only “yes” means “yes”.  Anything else is “no”: R v Goldfinch, 2019 SCC 38 at ¶44.

[35]         The Court must remain mindful that proof of lack of consent is borne by the prosecution on a criminal standard.  Accordingly, in this case, the prosecution must prove beyond a reasonable doubt that:

•        JW did not consent to being touched by Mr Muirhead; and

•        did not consent to the sexual nature of Mr Muirhead’s actions: R v Dinardo, 2014 ONCA 758

Sexual assault and assault—the fault element

[36]         There are two fault elements inherent in sexual assault and assault:

•                 the intention of the accused person to have physical contact with the complainant; and,

•                 the knowledge of the complainant’s lack of consent, or a wilful blindness or recklessness about it.

Barton at ¶ 87; Kirkpatrick at ¶ 28; Ewanchuk at ¶ 42.

[37]         Wilful blindness exists when an accused person’s suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries: R v Briscoe, 2010 SCC 13 at ¶ 21.

[38]         Recklessness refers to the state of mind of a person who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk: Sansregret v The Queen, 1985 CanLII 79, [1985] 1 SCR 570 at 582.

[39]         If the Court were to find that JW had consented to the specific physical contact Mr Muirhead had with her, or if the Court were left in a reasonable doubt about it, then the only legal outcome would be an acquittal.

Defence of honest but mistaken belief in communicated consent expressly not advances

[40]         The defence of honest but mistaken belief in communicated consent is raised frequently in charges involving sexual violence.  It is not necessary for the Court consider it in this case, as counsel for Mr Muirhead acknowledged in closing argument that there would be no air of reality to it: based on the theory advanced by the defence, not only did JW consent to the sexual activity in question,  she also initiated it.  Mr Muirhead’s description of the controversial event does not admit of him being mistaken.

Stereotypical reasoning and generalized assumptions

[41]         The adjudication project requires that trial judges be alive to authentic legal controversies, and be prepared to grapple with evidentiary conflicts when they might have a bearing on ultimate issues.  In trials involving allegations of sexual violence, the controversies that tend to gain the most traction involve assumptions about human behaviour; it is a subject matter that has been the focus of substantial intermediate-appellate and apex analysis.

[42]         Judges are permitted to rely on logic, reason and common sense in assessing witness credibility: R v ARD, 2017 ABCA 237 at ¶ 8-9, aff’d 2018 SCC 6; cited with approval in a minority concurring opinion in  Kruk at ¶ 186.

[43]         Kruk came to the SCC following a number of intermediate-appellate decisions which struck down convictions in sexual-violence trials; the reversals in those cased were based on trial judges supposedly having relied on ungrounded common-sense assumptions, to the detriment of the accused persons in those cases. 

[44]         According to the intermediate-appellate-court-invented “rule”, there was seen to be an equivalency between, on the one hand, prohibited reasoning based on myths and stereotypes about victims of sexual violence (identified first in R v Seaboyer, 1991 CanLII 76, [1991] 2 SCR 577 at 604 et seq; later codified in § 276 of the Code; and then developed in a host of later cases, the most recent from the SCC being R v Kinnamore,, 2025 SCC 19) and, on the other, supposedly ungrounded common-sense assumptions about human behaviour that ended up being detrimental to the cases of persons charged with sexual violence.

[45]         In the majority opinion in Kruk at ¶ 24 (there was one concurring minority opinion), the Court rejected the equivalency argument, and found that it disregarded the “distinct nature of myths and stereotypes” that are unjustly applied to sexual-violence complainants.  The majority went on, and observed at ¶ 26-28 that the equivalency argument worked to transform all factual generalizations rendered by trial courts into errors of law, thus imposing a false symmetry to the circumstances of accused persons.

[46]         Unlike generalizations about the circumstances of persons who have been charged, myths and stereotypes about victims reflect what the majority described at ¶ 38 as “inaccurate, outdated, and inequitable social attitudes  . . . [that] impeded the equal treatment of sexual assault complainants and, hence, the overall fairness of trials.”

[47]         Efforts to eliminate myths and stereotypes about victims of sexual violence (both in statute and the common law) do not create any “special benefits in law for complainants in sexual assault cases”: ¶ 44.  Rather, they “remove discriminatory barriers”, “level the testimonial field”, “and ensure the truth-seeking function of the trial is not distorted.”

[48]         And so the SCC did not recognize trial-court reliance on ungrounded common-sense assumptions as constituting an error of law having the same effect as reliance on prohibited myths and stereotypes.

[49]         Nevertheless, while there are now, as a result of Kruk, constraints on appellate review regarding trial-level generalizations about human behaviour—generalizations that do not engage the prohibited myths and stereotypes—this does not eliminate the need for trial judges to exercise caution, as unrestrained assumptions about human behaviour may still lead to palpable and overriding error: Kruk at ¶ 3 and 52.  A key point in Kruk is that trial courts should avoid drawing extravagant inferences from ambiguous, uncontroversial or neutral facts.

Sexual assault and sites of privacy

[50]         In this case, Mr Muirhead is alleged to have sexually assaulted JW in the confines of an SUV; there were two other passengers in the car, along with the driver.

[51]         The Court must be alert to the improper generalization that sexual assaults happen only in places of privacy

[52]         At least one academic author has suggested that it is actually a prohibited myth—much as the twin myths about complainant credibility and consent—to base a judgment on the assumption that sexual violence happens only in places of privacy: Lisa Dufraimont, “Myths and Stereotypes in R v Spicer” (2023), 87 CR (7^th) 75-76; and see R v Spicer, 2023 ONCA 232 at ¶ 29.  I agree with the conclusion of the author.

[53]         In this case, there is no room for arguing the improbability of sexual contact in a tight space with witnesses present to see it; this is because Mr Muirhead admits having physical, sexual contact with JW in the back seat of the SUV.  His defence is not the improbability of it, but that it was fully consensual. 

Sexual assault and delayed reporting

[54]         The doctrine of recent complaint was a court-created stereotype that required a complainant to immediately report a sexual assault or face an adverse inference regarding credibility: Kribs et al v The Queen, 1960 CanLII 7 (SCC), [1960] SCR 400 at 405.  This myth was abrogated statutorily by SC 1980-81-82-83, c 125, s 19, found now in § 275 of the Code.

[55]         The failure of a complainant to immediately report being sexually assaulted cannot be treated as an automatic credibility deficit or as the basis for an adverse inference: R v DD, 2000 SCC 43 (CanLII), [2000] 2 SCR 275 at ¶ 63 [DD].  There is no inviolable rule on how people who are the victims of trauma, such as sexual assault, will behave: DD at ¶ 65; R v Koge, 2022 NSPC 37 (CanLII) at ¶ 86.  Some might report immediately being sexually assaulted; others might wait, for a wide variety of reasons.  Waiting might have to do with knowing that the trial process can be humiliating and degrading for victims of sexual violence: R v JJ, 2022 SCC 28 (CanLII) at ¶ 1; R v Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at ¶ 119.

[56]         JW described being sexually assaulted by Mr Muirhead; she said it occurred on 15 October 2023.  She could not believe it had happened.  That might explain why did she did not utter any sort of comment of start or surprise just before she exited the SUV.  JW did go to police on 31 October 2023.  That interval of time is completely understandable.

Avoidance of implicit bias

[57]         Mr Muirhead is Black, and a member of an immigrant community.

[58]         Persons with this background have frequently faced profound structural disadvantages in the Canadian criminal justice system, simply because of their ancestry and personal histories.  The Court must assess the evidence presented in this trial in a way that does not implicate racially biased or stereotypical reasoning based on race or nationality.

[59]         While the risk of racial profiling by police may be a legitimate basis for inquiry, there is no evidence of it having occurred in this case.  The investigator was not called as a witness, and the issue was not explored by either counsel.

W(D)

[60]         R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 at 758 [W(D)] is the modern prototype case on analyzing evidence in a criminal trial.  According to the counter on CanLII.org, it has been cited in written decisions over fifteen thousand times as of today.

[61]          R v JAF, 2021 NSSC 357 [JAF] was a summary-conviction appeal from an acquittal in a sexual-assault case; the appeal hearing proceeded ex parte, and so without the benefit of an argument from the acquitted respondent, which is problematic.  At ¶ 36 of the decision allowing the appeal, the trial judge was faulted for not “conduct[ing] the equivalent of a WD [sic] analysis”.  This seemed to suggest that the trial judge ought to have recited and then progressed through the W(D) algorithm in analyzing the evidence.  These sorts of intermediate-appellate cases miss the point that the intended audience for W(D) is the lay jury; further, the precise formulation of the W(D) reasoning path is not beyond criticism: R v JHS, 2008 SCC 30 (CanLII), [2008] 2 SCR 152 at ¶ 9-10.  It might well be that JAF represents the same sort of exercise that was overturned recently in R v Young, 2025 NSCA 41, rev’g 2024 NSSC 277.

[62]         What is more important than the recitation of the well recognized principles that are the daily working material of trial courts is the proper application of them.

[63]         Trial judges must be alive to authentic legal controversies, and must be prepared to grapple with evidentiary conflicts when they might have a bearing on ultimate issues.  Still, as judges are presumed to know the law and to have used evidence properly—R v Lindsay, 2023 SCC 33 at ¶ 2; R v GF, 2021 SCC 20 at ¶ 74; R v Burns, 1994 CanLII 127 (SCC), [1994] 1 SCR 656 at 664—it should be possible for a judgment to be succinct and legally sufficient.

Motive to lie

[64]         In R v Gerrard, 2022 SCC 13 at ¶ 4 (CanLII) [Gerrard], the Court drew a distinction between a proven absence of a complainant’s motive to lie and the mere absence of evidence of a motive to lie.  In other words, absence of evidence is not evidence of absence.  Common sense suggests that a witness may be more truthful when the witness does not have a reason to lie.  Common sense and judicial experience suggest also that proof of a motive or proof of a lack of it will not come from direct evidence; it will be deduced from the circumstances.

Cross examination on prior statements

[65]         A statement made by a witness—including an accused person—prior to trial may be the subject of cross-examination under either § 10 or 11 of the Canada Evidence Act, RSC 1985, c C-5 [CEA] . 

[66]         Section 10 permits cross-examination on any written or recorded statement relative to the subject matter of the case; it is noteworthy that the statement need not be inconsistent with the testimony of the witness.  However, the statement must have been written or recorded.

[67]         Section 11 of the CEA allows for cross-examination on any statement “inconsistent with  . . . [the] present testimony” of the witness.

[68]         Neither provision is a memory-refreshing mechanism; an opponent’s witness does not have to acknowledge being in need of memory refreshing to allow counsel to embark on a § 10 or 11 CEA cross-examination.

[69]         Should a witness admit making an earlier statement inconsistent with the present testimony of the witness,  the earlier statement does not become proof of the truth of what was said unless the witness should go on to adopt the statement: R v Livermore, [1995] 4 SCR 123 at ¶ 54; R v Mauger, 2018 NSCA 41 at ¶ 29.   If unadopted, the statement may be used to assess credibility only.

[70]         When a prior statement is used for cross-examination purposes, the statement is not put in as an exhibit: R v Rowbotham, [1988] OJ No. 271 at ¶ 121.  The reason is this: evidence is admissible if it is informative, relevant, material, not subject to an exclusionary rule, and of sufficient probative value as not to be outweighed by prejudicial effect.  When a statement is used for cross-examination as to credit, only that portion of the statement as used for cross-examination purposes meets this test for admissibility.  In such a case, receiving an entire statement as an exhibit—when only a small fragment of it is legally admissible, and even then for a limited purpose only—is inefficient and renders the statement prone to misuse.

[71]         Cross examination of an opponent’s witness on the contents of a prior statement requires precision.  When the prior statement that is the subject of the alleged inconsistency is in writing, has been transcribed from a sound recording, or is accessible in a digital or analog audio format, word-for-word precision is required.  The law is clear: it is improper to ask a witness a question that misstates the evidence: R v W(RS), 1990 CanLII 10983 (MBCA); 55 CCC (3d) 149 at 156-160 [W(RS)]. 

[72]         It was necessary for the Court to intervene twice during this trial to take corrective action during questions on prior statements: once during the cross examination of JW; later, during the cross of Mr Muirhead.  While I am satisfied that these were inadvertent missteps, inadvertence does not lessen the potential damage that can arise from problematic cross examination.

[73]         In the case of the cross examination of JW about the position of her body and the arrangement of her clothing and seat belt, defence counsel acknowledged the error in misquoting her earlier testimony and withdrew the allegation of an inconsistency.  This, in my view, is the correct approach.

[74]         A contrasting approach is one that brushes past a concern raised by the Court about a cross-examination question, and then seeks to press on with the problematic inquiry.  This occurred during cross-examination of Mr Muirhead, when questions were put to him erroneously premised on him being seated in the middle of the back seat of the SUV.  I am of the view that such a tactic is not a best practice. In such a circumstance, the trial judge is obligated to intervene, as was made clear in W(RS).

Reasonable doubt and the absence of evidence

[75]         The Court is well aware that the proof-beyond-a-reasonable-doubt standard does not require absolute certainty.  The Court must examine the totality of the evidence, as a criminal proof may come from more than just the sum of its parts.

[76]         However, the Court must be alive to the absence of key evidence in a trial.  As stated in Kruk at ¶ 62:

Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much -- or all -- of the accused's evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused's testimony, or does not know who to believe, the accused is entitled to an acquittal . . . . (Internal citations omitted.)

 

See also R v Patel, 2024 NSCA 40 at ¶ 55.

[77]         This is not meant to penalize the prosecution for choosing not to call certain witnesses, as that choice is within the sole discretion of the prosecution; however, that comes with the caveat that, if the prosecution decides not to call a material witness, it “risks failing to meet the burden of proof incumbent upon it and losing the case”: R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113 at ¶ 30.

Analysis of the evidence

[78]         With respect to the two prosecution witnesses, I found that the evidence of JW and Ms Carson appeared to be credible and reliable.  Both appeared to be trying to tell the truth and to be accurate.  JW and Ms Carson recounted a social evening out with friends that was entirely normal and unremarkable.  Their description of who was seated where in the SUV matched the evidence of Mr Blye and Mr Muirhead.

[79]         JW said that she had fallen asleep in the back of the SUV.  She had just wrapped up a heavy-duty work week with long hours.  She had socialized with Ms Carson at the bar in New Minas until the early hours of 15 September 2023.  Falling asleep in the SUV would have been a normal fatigue response.  Her evidence on that point was supported by Ms Carson and Mr Blye: both saw her sleeping, and Ms Carson heard her snoring.  Even Mr Muirhead’s evidence of JW’s verbalized “uhh” reaction to having her name called out by Ms Carson suggests a startled-awake reaction.

[80]         As noted in the preceding discussion of elements of a § 271 offence, a sleeping person cannot consent to sexual activity.  

[81]         JW’s description of Mr Muirhead groping her vaginal area when she woke up did not require the court to imagine a physically impossible act.

[82]         In fact, Mr Muirhead acknowledged, mostly, doing what JW said he had done—with the difference that JW had initiated it and consented to it by gesture.

[83]         JW had only encountered Mr Muirhead a couple of times prior to 15 October 2023, and only at her place of employment.  There was no evidence that she would be motivated to fabricate a complaint of sexual assault against him.

[84]          I would repeat the observation made earlier in this decision that the absence of evidence is not evidence of absence. 

[85]         Furthermore, the Court must not impose a burden of proof on Mr Muirhead to establish that JW would have a motive to lie: R v Riche, [1996] NJ No. 293 at ¶ 15 [Riche]; R v Ignacio, 2021 ONCA 69 at ¶ 37-60; R v Wallace, 2021 NSPC 65 at ¶ 59 [Wallace].

[86]         Ms Carson’s evidence was uncontroversial and of neutral effect: she did not notice anything wrong going on in the back seat.  This is understandable, as she was focussed on her discussion with Mr Blye, which became animated at times.

[87]         The Court will now turn to the evidence of Mr Blye and Mr Muirhead.

[88]         In closing argument, the prosecution appeared to propose that the Court not accept the evidence of Mr Blye, as he and Mr Muirhead are good friends, and they spoke frequently.  To the contrary, I found Mr Blye to be a credible and reliable witness.  In fact, he offered evidence that supported a core part of the prosecution theory: that JW was asleep for part of the drive to Falmouth.  His evidence was largely nonpartisan: he did not notice what was going on in the back seat of the SUV as he was focussed on his driving.

[89]         I found Mr Muirhead’s evidence mostly credible and reliable.  He was not dramatic, histrionic or argumentative.  I did not find his testimony to have been impeached on cross-examination.  His description of  mutually consensual sexual activity with JW was not physically impossible.

[90]         His testimony on cross-examination about the duration of the sexual activity—from Exit 11 to Exit 8 on Highway 101, about 15 minutes in duration—does not seem plausible.  If it had gone on that long, I am confident Ms Carson would have noticed it.  This may be indicative of a fabricated account; however, the fact is that most witnesses offer very imprecise evidence—sometimes wholly inaccurate—regarding time pinpoints, durations and distances.  Life events do not occur with participants monitoring stopwatches or GPS devices—and so the Court is quite accustomed to credible and reliable witnesses being away off when reckoning times and distances.

[91]         It was argued that the fact that Mr Muirhead had to be asked questions on cross several times, and that he had difficulty with key questions, ought to be treated as credibility deficits.  I do not agree. 

[92]         In R v Stephan, 2021 ABCA 82 (especially at ¶ 131-148), rev’g 2019 ABQB 715, an intermediate-appellate court found that a trial judge had exhibited conduct giving rise to a reasonable apprehension of bias, given the judge’s unfounded criticism of the manner in which an expert witness (who appeared to have been a foreign-trained physician) had enunciated words during his testimony.

[93]         In my view, fluency, command of language and immediacy of response are not the sorts of metrics that should be used in assessing credibility and reliability in a multicultural society.  Furthermore, I would note that I have tried cases when prosecutors have argued that, when prosecution witnesses have taken time to formulate answers, such deliberation be regarded as a marker of a careful witness who is making an extra effort to be truthful. 

[94]         What is of greater concern to the Court is the fact that neither the police investigator nor the third backseat passenger, Alex, was called by the prosecution.

[95]         Testimony from investigators can be problematic, as when they end up giving pseudo-narrative evidence that is a cloak for discreditable-conduct or similar-acts evidence: see R v MAM, 2025 NSPC 1 at ¶ 28-35.

[96]         However, investigators may also be sources of useful contextual and circumstantial information that can assist triers-of-fact in making credibility assessments.

[97]         One important fragment of information the investigator might have been able to offer is information on the whereabouts of Alex, the third backseat passenger.  His surname remains unknown to the Court.  Mr Blye thought that Alex had left Nova Scotia in December 2024; the date for the first trial had been docketed about 8 months before that.  Alex was sitting right next to JW, in close quarters, at the time of the alleged offence.  Was he interviewed?  Was he subpoenaed?  Could he have testified remotely?  This person would appear to be a material and important eyewitness to key events.  The Court did not hear from him.  In circumstances when the Crown bears the burden of proof of each element of an offence beyond a reasonable doubt, that missing piece operates as a profound absence of evidence.

[98]         Hearing from the police investigator in this case might have clarified that absence-of-evidence issue.  The investigator was not called.

Findings of fact

[99]         After having analyzed the evidence, the Court would make the following findings of fact:

•   On 15 October 2023, JW and Ms Carson entered an SUV being operated by Mr Blye; Mr Blye was driving them home.

•   Ms Carson sat in the front passenger seat of the SUV; JW sat in the middle of the back seat, Alex on her left, Mr Muirhead on her right.

•   At some point during the drive from New Minas to JW’s home in Falmouth, JW fell asleep.  The Court cannot determine how long she was asleep.

•   At some point during the drive, there was sexual contact between JW and Mr Muirhead.  By JW’s account, the contact started when she was asleep, and so when she had no capacity to consent to it.  Once she realized what Mr Muirhead was doing to her, she pushed his hand away, indicating that she wanted him to stop.  She had never consented to being touched in such a way.  That never changed. By Mr Muirhead’s account, JW initiated sexual contact with him by rubbing his left leg.  He mirrored JW by rubbing her right leg in a similar fashion.  JW then took Mr Muirhead’s hand and placed it on her vaginal area outside her clothing.  He then reached inside her underwear and began squeezing her vagina.  JW sucked in her stomach and spread her legs.  JW then began squeezing Mr Muirhead’s privates at the same time.  This account would support a finding that JW had communicated, by gesture, her continuing consent to the sexual activity engaged in by Mr Muirhead.

•   The Court finds the accounts of both JW and Mr Muirhead reasonably credible and reliable. 

•   The Court is also actuated by the principle that reasonable doubt may arise from the absence of evidence.  The prosecution did not call two key witnesses: the investigator, and Alex, a person who was seated in the SUV directly next to JW at the time of the alleged offence.

•   Given the Court’s assessment of credibility, and given that the Court has not heard from two material and important witnesses, the Court is unable to determine which of the accounts of JW and Mr Muirhead should be believed on the issue of communicated consent.

[100]    As the Court is left in a state of reasonable doubt about the essential element of communicated consent, the Court finds Mr Muirhead not guilty.

Atwood, JPC