SUPREME COURT OF Nova Scotia
Citation: R. v. M (CJP), 2022 NSSC 253
Date: 20220907
Docket: CRH No. 499815
Registry: Halifax
Between:
Her Majesty the Queen
v.
CJPM
Publication Ban: Criminal Code ss. 486.4 & 486.5 – any information that will identify the Complainant, victim or witness shall not be published in any document or broadcast or transmitted in any way. No end date for the ban stipulated in these sections.
D E C I S I O N
| Judge: |
The Honourable Justice James L. Chipman |
| Heard: |
June 21, 22 and 23, 2022 |
| Counsel: |
Emma Woodburn, on behalf of the Crown Colin Coady and Harry Critchley (articled clerk), on behalf of Mr. M |
By the Court:
Introduction and Background
[1] CJPM is charged with sexual assault on JNM, contrary to s. 271 of the Criminal Code, RSC, 1985, c. C-46. Mr. M pleaded not guilty on September 17, 2020 and owing to a number of delays related to COVID-19, his trial took place over three days at the beginning of this summer.
[2] The allegation dates back to August 2019 when the accused was [redacted] and the complainant [redacted] years of age. On the evening of August 4th J and her then [redacted]-year-old boyfriend, CH went to their friend HD’s parents’ house for the evening and overnight. Ms. D was also [redacted] and the girlfriend of CM. Her parents were away overnight and the four teenagers had the house to themselves.
[3] The teenagers drank alcohol and socialized until the early morning of August 5th when they all got into H’s bed together. At some point CH and H left the bed and went upstairs. Soon thereafter, J alleges that CM had non-consensual sexual intercourse with her.
[4] The Crown called J, J’s mother, [redacted], a sexual assault nurse examiner and toxicologist as witnesses along with entering six exhibits. The Defence elected not to call evidence.
Guiding Principles
[5] Mr. M is presumed innocent of the charge before the Court. This presumption is only displaced if the Crown proves guilt beyond a reasonable doubt. Suspicion of guilt or a belief in probable guilt do not displace the presumption. Only proof beyond a reasonable doubt can establish guilt. The Crown's onus of proving guilt beyond a reasonable doubt never shifts.
[6] The presumption of innocence means that Mr. M does not have to testify or call any evidence. It is the Crown who must prove the guilt of Mr. M beyond a reasonable doubt. Mr. M is not required to prove his innocence of the charge before the Court.
[7] A reasonable doubt is based on reason and common sense which must be logically connected to the evidence or lack of evidence. Suspicion and probability fall far short of the reasonable doubt standard. Proof beyond a reasonable doubt falls much closer to absolute certainty than it does to a balance of probabilities.
[8] Mr. M did not call evidence and he does not have to prove anything to be found not guilty. The burden always rests on the Crown to prove beyond a reasonable doubt that he committed the essential elements of the offence charged.
[9] This case involves circumstantial evidence which has the same evidentiary value as direct evidence. Reliance on circumstantial evidence does not change the burden of proof. In R. v. Villaroman, 2016 SCC 33, Justice Cromwell confirmed that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. In R. v. Acosta, 2021 NSSC 343, I canvassed R. v. Villaroman and recent treatment of circumstantial evidence at the Ontario Court of Appeal (R. v. Ali, 2021 ONCA 362) and our Court (R. v. Kennedy, 2021 NSSC 211 at paras. 58 - 62).
Testimony
The Complainant
[10] JM gave testimony on the first day of trial, her [redacted]. At the time of the events in issue she was [redacted] years old. She had completed grade [redacted] at [redacted]. She lived at home with her parents, [redacted] as well as her boyfriend, CH.
[11] During the summer of 2019 J worked as a [redacted]. She had met HD through [redacted] and was acquainted with her boyfriend, CM. The two couples got together quite frequently in the time leading up to August 4th. CM, HD and CH were all [redacted] years of age at the time of the alleged sexual assault.
[12] By the summer of 2019 J had consumed alcohol on a number of occasions. Her choice of drink was Mike’s Hard Lemonade. She was nearly [redacted] tall and estimated her then weight to be [redacted] pounds. She recalled one incident prior to August 4th when she drank to the point of not remembering part of the evening. On this occasion she consumed three or four coolers and a large volume of spirits.
[13] J was diagnosed with depression and anxiety and as of June 2019 began taking an antidepressant (three, 25 mg pills of sertraline, also known as Zoloft) every morning.
[14] J could not remember what she did during the day of August 4th before going to H’s house. The four teenagers had a plan to go there “…and have a few drinks, hang out, stay overnight and go to the Buskers the next day.” H’s parents would be away at their cottage. J did not know if there was a plan as to where they would sleep. She could not recall if she stayed overnight at the D residence on a prior occasion.
[15] J took a six or 12-pack of Mike’s Hard Lemonade that her mother purchased for her to H’s house. She brought an overnight bag along as well. She recalled that CH and CM had alcohol but could not say what it was or the quantities. She recalled that CH drove her to H’s house and that they arrived at around 10:00 or 11:00 p.m.
[16] Once at H’s house they went in through the side door and into H’s bedroom. The split entry house had a hot tub and “man cave”, the latter located above a garage next to the house. H and CM were at the house and soon after J and CH arrived they all went in the hot tub. J took one of her coolers with her and placed the rest on a nearby table. She estimated drinking two Mike’s and one of H’s coolers while in the hot tub for about an hour or two hours. She could feel the alcohol and described herself as “a little tipsy.”
[17] J recalled that the four got out of the hot tub at the same time and went back to H’s room to get out of their bathing suits and dry off. She may have had another Mike’s and then the group went to the man cave. They played “cup pong” and during this time J had one or two more coolers. While playing cup pong she could not recall if she drank alcohol from the cups or if they were filled with water.
[18] After about two hours in the garage room the four returned to the house. J said that nothing was planned but “we all ended up going to H’s bedroom and got in her bed.” She thought this was a queen size and that looking at the bed from the foot they laid down with CM on the right side with H next, J and then CH on the left side. By the time she got into the bed J said, “I was pretty drunk but still aware, I definitely was feeling the alcohol.” She could not say if the others were showing any “signs of drunkenness.” J was tired, “pretty much half asleep at that point.” She estimated that it was 2:00 or 3:00 a.m. J had no recall of eating during the evening.
[19] At some point J and H switched positions such that J was beside CM and H beside CH. She recalled feeling the bed moving, followed by CH and H getting up, out of the bed. Before leaving the bedroom, CH asked her if she was okay and she said that she was “fine.” J was wearing CM’s t-shirt that “probably went to about a quarter of my thigh …didn’t fully cover my butt.” She could not recall if she was wearing underwear or anything else. She said that CM had nothing on.
[20] J is not sure if there was a television in the room or whether the lights were on or off. She thought that there was a blanket on the bed. She cannot recall if CM said anything to her, but her next memory is of him getting on top of her. She was laying on her back “…and he kind of had my legs up a bit but they were bent, he went from lying on the bed to on top of me. I remember I said to him to stop and I said ‘no’ and to ‘please stop’. He said it was fine. I remember he grabbed my legs on part of my thigh and pulled them up and kept going …he put his penis inside my vagina …he kept going, like inserting, like pumping. After he grabbed my legs and that’s all I remember and then I don’t remember if he said or did anything else.” She could not recall how long CM was on top of her or if she felt pain.
[21] J said that she did not consent to the sexual activity. She did not think that CM used a condom. When having consensual sexual intercourse, “I used condoms for protection against STDs and kids.”
[22] J elaborated that she became “tipsy and then got fuzzy …here and there I don’t remember everything.” She described being “very groggy” at the time of the incident, “…alcohol affected my memory in the sense of not remembering everything, but I remember what happened.”
[23] J next remembered CH and H coming downstairs and that everyone was upset. She did not understand why this was the case and described herself as “really confused …in my head I wasn’t thinking of what just happened, I was genuinely confused about what everyone was upset about.” CM went upstairs to bed and CH went on the couch. J went back to sleep in H’s bed and she believes H was with her. When they awoke, she and CH drove back to her parent’s home where they showered and got ready to go to the Buskers at around 11:00 a.m. She described CH as being “a bit off and quiet.” During the drive to the Buskers he said, “do you remember what happened? CM raped you.” Upon hearing this, J “started to remember things. I did remember what had actually happened to me, I remembered what CM had done, I was only 16, I never thought of things like that.”
[24] J went to the [redacted] for her regular shift beginning around 4:00 p.m. on August 5th. Between 5:00 and 6:00 p.m. her mother came [redacted]. In speaking with her mother, J told her what had happened and her mother told her that she “needed to go to the hospital to get a kit done.” Accordingly, they drove to the IWK arriving there after her shift at around 8:30 p.m. She was attended to by two sexual assault nurse examiners.
[25] J described her lengthy session with the nurses including a detailed physical exam. She was given the option to have her swab frozen and she chose this. Referring to going forward with a charge against CM; “I was not really sure if this was something I could do and go through and have to testify here and stuff.”
[26] J ultimately decided to proceed “…because I was not able to just go about my life normally.” She provided a police statement on November 28, 2019. She ended contact with CM and H and subsequently broke up with CH. She confided in her mother and (closest in age) sister. J finished high school graduating in [redacted] but deferred university until this fall.
[27] On cross-examination J agreed that she told the police that she thought she drank four or five coolers. She agreed that the total “could be” closer to seven. She acknowledged that the alcohol combined with her prescription medication gave her “a different feeling” and that she did not know of its side effects. She agreed that her doctor had since told her that when on Zoloft that “one drink feels like six” and that’s why she told police, “I was so out of it.” She acknowledged that she said to the police, “that’s why I was so out of it …it made me groggier …drunker than I normally would have been.” She denied that she did not recall anything – in relation to the alleged sexual assault – or that it was based on what others told her.
[28] J was taken through all of the things about August 4th and 5th that she could not recall and agreed that they numbered close to 30 instances. She agreed that on a couple of times in her statement she described herself as “in and out” and “really unconscious.”
[29] On cross-examination J was challenged regarding her statement; “I remember what had happened but in my head that’s not what had happened” and that CH’s next day comments made it “click.” She denied that she did not recall the incident and that “click” meant that she realized that it was “not okay.” She conceded that she recalled being sexually assaulted even though she was “not very conscious.” J agreed that she “really didn’t know what happened” until the next day. She agreed that at the moment and afterwards when everyone was upset that she did not say that she had been sexually assaulted. She admitted that when CH asked her if she was okay that she responded that she was “…fine, I was just having a good time.” On re-direct she clarified that her reference to a “good time” was in relation to the evening.
The Complainant’s (then) Boyfriend
[30] CH is [redacted] years old and was [redacted] in August 2019. He graduated from [redacted] High School in [redacted]. CH now works as a [redacted]. He and J dated for about three years and he lived at her parents’ house on and off during this period of time.
[31] CH was a friend of CM’s and together with their girlfriends, they regularly socialized in the time leading up to the allegations. This involved drinking alcohol, usually at the D or M home. During this time CH saw CM’s and J’s alcohol consumption range from a single drink to excessive drinking to the point of vomiting. He provided almost the same description for H, albeit he did not observe her vomiting. CH said that his (then) girlfriend’s choice of drink was usually coolers.
[32] CM described the background leading up to the events of August 4th and 5th in a relatively consistent manner to J’s testimony. Once at H’s he began drinking from half a quart of Malibu coconut rum that he brought. He recalled that J brought Black Fly coolers and estimated that these drinks were seven percent alcohol. On cross-examination CH could not be sure about what time they arrived at H’s house.
[33] CH recalled the D’s split entry home and nearby garage in line with J’s testimony. Upon arriving they got ready in H’s bedroom and soon thereafter got in the hot tub together. CH said that all four drank while in the hot tub for a half an hour to an hour. He thought that he had about four or five shots of rum and that J had a cooler and a half. While in the hot tub he described himself as slightly intoxicated. He could not recall signs of intoxication with the others.
[34] After the hot tub the four went back to H’s room briefly and then on to the man cave above the garage. The fellows trailed behind and CH remembered that CM said, “this is gonna be just like last weekend”, which he took as a reference to what his friend had previously told him about; another couple and another young woman had been over – “CM said he had sex with the other girl so she didn’t feel left out.” On cross-examination he said he had been shown a photograph relating to this. When CM made the comment, CH “blew it off.”
[35] On cross-examination he agreed that he was “nearly blackout” when they left the hot tub. He elaborated that he felt “pretty intoxicated” before going to the man cave. He thought that the four were in the garage room for about two hours.
[36] Once in the garage the group drank alcohol and played beer pong. The beer pong cups were filled with water and for every ping pong ball sunk, the opponent would take a drink of alcohol. CH finished his rum and had a cooler. J finished her Black Fly coolers and had a Mike’s Hard Lemonade. He thought that she had four and a half to five and a half coolers in total that evening.
[37] On cross-examination he said J drank seven percent Black Fly coolers which she got from her bag. He said she had one Mike’s and a total of seven drinks.
[38] The group left the garage room at around 1:00 a.m. and at this point CH described himself as “near blackout drunk.” He described each of his friends as “intoxicated.” They proceeded to H’s bedroom and all four laid down on her queen size bed. CH said that they were situated in the bed in the same way that J described. There were no lights on in the room but that the blind was up to allow in some light. There was a television in the room but he did not recall that it was on.
[39] After about five minutes in bed CH felt the bed moving. He looked over and CM stared back at him. He thought that CM’s and H’s legs were under a blanket. He thought that the two were having sex. CH put his head down and tried to go to sleep. At some point CH recalled the two young women switching positions in the bed so that H was next to him. H then asked him to take her upstairs to get water. He agreed to do so after telling CM, “just don’t do anything.” He elaborated that he was referring to having sex and he thought of this because CM, “already had sex with H.”
[40] On cross-examination he said that “as far as he knew”, H and CM were having sex. He agreed that “for most of the evening” that he, H and CM were naked.
[41] CH left the bedroom with H and they went upstairs to the kitchen. H wanted to make Kraft Dinner but CH was anxious to get back to the bedroom. In total he estimated that they were gone for five to ten minutes before going back. CH opened the door to the downstairs hallway and proceeded to H’s bedroom. The door was open and as he looked in, “I saw CM on top of J and I froze for five to ten seconds. I said ‘C’ and he turned and ran out of the room crying. J was on her back. CM was on top with his hands on either side of her head. His legs were in a ‘V’ …I just saw him fucking her, having sex. You could see it going into her. His body was going up and down extra roughly.” CH said CM was naked and that J had nothing on, “unless a shirt pushed way up.” He added that they were not covered with blankets.
[42] On cross-examination he clarified that H was behind him when he looked into the bedroom. At this point he was feeling intoxicated and he observed CM, “basically just pounding into her.” He agreed that he did not say in his statement that he “could see it going into her and that it was extremely rough.” He denied that he recently fabricated this; “I remembered it but I didn’t say it, I didn’t think I could get through saying it, I assumed that it would have been implied.”
[43] CH went over to J to see if she was okay. He gave her “a little shake and she came to.” He took her to the washroom; “she was very confused, there was definitely intoxication there, not extreme. She wasn’t completely all there, she was jumping all over the place.” CH next recalled CM running down the hall and locking himself in the bathroom. J then sat outside of the bathroom and CH heard her having a conversation with CM, who was crying. After awhile CM went into the spare bedroom and J and H went into H’s room while CH slept on the basement sofa.
[44] On cross-examination he acknowledged that when he went over to J that she was possibly unconscious; “I shook her shoulder and she woke up within a couple of seconds.” He added that she said that she had to use the bathroom and did not tell him that she had been sexually assaulted.
[45] CH admitted that he could not remember everything; however, he said that “some I remember extra vividly, walking into the room and witnessing it happening, it keeps replaying.” On cross-examination he said that two things stayed in his mind – “kept replaying in my brain” – who won at beer pong and what he saw in the bedroom.
[46] CH said that the four went to the Buskers later that morning as planned. In his words, “everyone acted like what happened the night before hadn’t happened.” On the drive to the Buskers he and J talked about what occurred but the topic was not raised when the two couples were together. During the car ride CH stated, “I told her that when I came downstairs I saw CM on top of her …I mentioned what I saw to her.” On cross-examination he acknowledged that on the basis of their next day conversation that “things started to click in her head.”
[47] In the time following the alleged sexual assault CH said that his girlfriend “completely changed …she was very lost, things were happening and she wouldn’t know why, if I gave her a little touch, she’d jump.”
The Complainant’s Mother
[48] TM is J’s mother. She provided background evidence consistent with her daughter’s. She permitted J to take a 12-pack (bottles) of Mike’s Hard Lemonade from her garage on the night in question. TM was under the impression that H’s parents would be home on August 4th and 5th.
[49] TM permitted her daughter to drink alcohol at occasional family gatherings. This was confined to, “a drink, maybe two and no spirits.” She gave her daughter advice when drinking to “be mindful, don’t get intoxicated, be aware.” She confirmed that at the time J took the prescription drug sertraline (for anxiety and depression) and that she started this in mid-June 2019. It was TM’s routine to give J the prescribed three 25 mg pills every morning.
[50] TM recalled that J and CH left the M home for H’s on the night of August 4th for overnight. She said that they seemed “happy, excited, fun, normal.” When she saw them back at her house the next morning she detected that they were quiet and generally not themselves. On cross-examination she agreed that she could not say why J and CH might be acting this way; she had not been given an explanation.
[51] TM next saw her daughter at the [redacted] later in the day. J told her what happened and the decision was made to take her to the IWK once her shift concluded. TM returned to the [redacted] at 8:00 p.m. and drove J to the hospital. She was present for part of the time when the nurses assessed J. They left the IWK at close to midnight. J was provided with information and TM told her that whatever she decided that she had her parents’ support. In November 2019 J told her mother that she wanted to press charges and her mother assisted her in contacting the police. After August 5th J stopped spending time with H and CM; her daughter told her the reason for this.
SANE Nurse
[52] Jane Collins is a sexual assault nurse examiner (SANE) nurse who was called in along with SANE nurse Shannon Taylor to examine J on the evening of August 5, 2019, at the IWK Avalon Sexual Assault Centre. Ms. Collins’ curriculum vitae was entered as exhibit 2. She spoke to the Healthcare Practitioner’s Guide, SANE chart notes and traumagrams (all entered as exhibits) she completed based on the three, to three and a half hour long interview and examination of J.
[53] Ms. Collins described J as “teary at first but calm, pleasant” during the detailed assessment. On cross-examination Ms. Collins agreed that she made a demeanor assessment but that she could not say what caused J’s demeanor to be as she described.
[54] Owing to J’s relatively young age a speculum examination was not conducted. Overall, no trauma was detected on J’s body.
[55] At page two of the notes there appears these “Details of Assault” based on the patient’s “own order of recall and words”:
Me and my boyfriend were drinking/partying with another couple (my friend and her boyfriend). My boyfriend left the room and my friend did as well – so I was alone with CM (assailant). Then he sexually assaulted me. I was intoxicated but I was clear that I didn’t want that to happen. I pushed him off but he wouldn’t stop.
Toxicologist Expert
[56] Elizabeth Hird is a forensic toxicologist with the RCMP. Her curriculum vitae was introduced as exhibit 5 and she was qualified as an expert in:
the absorption, distribution, elimination of alcohol and drugs in the human body, including the blood alcohol concentrations to the time of incident;
pharmacological and toxicological effects of alcohol and drugs on the human body taking into consideration factors such as sampling delay, tolerance, method of administration;
analytical techniques for the isolation, detection and quantitation of drugs and alcohol from the biological and non-biological samples; and
interpretation of toxicological findings.
[57] Ms. Hird’s forensic science and identification services laboratory report dated November 12, 2020, was introduced and she confirmed that she examined one urine sample and one of the two blood samples taken from J on August 5, 2019. She noted as follows regarding sertraline:
Sertraline (Zoloft®) is a drug used for the treatment of mental depression and obsessive compulsive disorder. It is a newer type of antidepressant sometimes referred to as a selective serotonin re-uptake inhibitor (SSRI). Although classified as a CNS depressant, SSRI’s have a reduced sedative effect when compared to older antidepressants however, in certain patients drowsiness may be shown. This is more likely in the early stages of treatment. Other side effects of the drug may include dizziness, fatigue and insomnia. Again these effects are likely to be more noticeable shortly after the start of treatment or following high dosage.
[58] Ms. Hird said that given the dosage, when administered (in the morning) and other factors that in her opinion the drug “would have been very well tolerated and have very few side-affects in JM.”
[59] Ms. Hird spent considerable time going over the potential affects of alcohol. She stated that alcohol ingestion, “reduces what you see and what you pay attention to”, noting that the brain has less capacity to process when impaired by alcohol. Ms. Hird went over specific scenarios provided by the Crown prosecutor which mirrored the testimony of J and also CH regarding J’s alcohol consumption on August 4th and 5th. Given all of the variables and the somewhat conflicting testimony, Ms. Hird provided three potential blood alcohol concentration (BAC) ranges for J at the material time:
.95 - .175
.167 - .217
.194 - .245
[60] Ms. Hird stated that if one had a BAC of 100 or less that there would generally be a “mild intoxicating effect.” She noted the permissible legal limit for driving (.80) and that one’s central nervous system is increasingly depressed as the BAC gets higher such that .300 and greater is dangerous.
[61] On cross-examination Ms. Hird acknowledged that the ranges she set forth were “theoretical calculations” based on many variables. She agreed that she provided very large ranges and could not conclude with certainty which range J was in, albeit she would expect confusion and vomiting at the higher range.
Credibility and Reliability
[62] The Crown’s case is primarily dependant on the evidence of J and to a somewhat lesser degree, CH. Accordingly, J’s and CM’s credibility and reliability are of critical importance.
[63] The Supreme Court observed in R. v. Marquard, 1993 CanLII 37 (SCC) at para. 49: “[c]redibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter.” Further, the weight of different parts of a witness's testimony can vary (R. v. Howe, 2005 CanLII 253 (ONCA) at para. 44).
[64] The trier of fact can believe and accept some, none, or all of the testimony of a witness (R. v. Hardy, 2019 ABCA 160 at para. 45; R. v. J.H.S., 2008 SCC 30 at para. 10), with the testimony necessarily assessed against the competing and supporting evidence tendered by the parties. I am guided by R. v. D.D.S., 2006 NSCA 34, and Justice Saunders’ words at para. 77:
Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure of principle mixed together by seasoned judicial stirring will yield proof of veracity. Human nature, common sense and life's experience are indispensable when assessing creditworthiness, but they cannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of fact when testing the evidence but standing alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness's account stand in harmony with the other evidence pertaining to it, while applying the appropriate standard of proof in a civil or a criminal case?
[65] The determination of credibility requires a number of questions to be answered, each of which must be tied to the evidence as a whole. In R. v. Filion, 2003 CanLII 517 (ON SC) at para. 27, in the jury context, some of those questions are summarized:
• Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/her evidence would not be reliable?
• Does the witness have an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other?
• Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering events seem genuine, or does it seem made up as an excuse to avoid answering questions?
• Does the witnesses' testimony seem reasonable and consistent as she/he gives it? Is it similar to or different from what other witnesses say about the same events? Did the witness say or do something different on an earlier occasion?
• Do any inconsistencies in the witness' evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because she/he failed to mention something? Is there any explanation for it? Does it make sense?
• The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to a particular witness.
[66] Witness credibility must be considered in the context of the evidence as a whole and not based on any one factor, none of which alone are determinative: (see R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330 at paras 29-30 [Ewanchuk]; R. v. G.(S.G.), 1992 CanLII 311 (SCC), [1997] 2 SCR 716 at paras 72-73; McWilliams' Canadian Criminal Evidence, 5th ed. (Toronto: Thomson Reuters, 2019) (McWilliams' Evidence) at 30.30.50 and 30.30.60).
[67] Some of the factors to consider include, but are not limited to: evidence of bias, motive to lie, including relationships impacting a witness's truthfulness; interest in the outcome; demeanor; confirmatory evidence; character evidence; lay opinion evidence; expert evidence; prior inconsistent statements; and internal consistency / inconsistency (see McWilliams' Evidence at 30.20.20; R v Tash, 2013 ONCA 380 at paras 40-43).
Demeanor and Circumstantial Evidence
[68] Triers of fact must be very cautious in measuring truthfulness with demeanour. However, while it is not determinative when assessing credibility, it is one consideration amongst many others: R. v. N.S., 2012 SCC 72; R. v. Pelletier, 1995 ABCA 128 at para 18; R. v. O.M., 2014 ONCA 503 at paras. 34-35; R. v. Dadson, 2018 ONSC 4823 at para 96.
[69] In her closing submission Crown counsel referred to R. v. Dadson and I now reproduce Justice Kochnen’s comments at paras. 71 – 73:
[71] Drawing an adverse inference against Ms. A because of late reporting would drag this court back into archaic thinking that the Supreme Court of Canada has definitively dismissed as erroneous. As already noted, there are no rules about how victims of a sexual assault are supposed to behave. Some will make an immediate complaint, others will delay, still others will never disclose the assault. There are many reasons for delay including embarrassment, fear, guilt, a lack of understanding, fear of continuing the trauma by being forced to relive it through police investigations or trial, a lack of desire to report because of depression, self-blame or loss of self-esteem: R. v. Seaboyer [1991] 2 S.C.R. 577 at para. 139; R. v. D. (D.) [2000] 2 S.C.R. 275 at paragraph 65.
[72] In addition to some of the issues described above which the defence characterizes as inconsistencies in Ms. A's evidence, the defence also focused on a potential inconsistency about Ms. A reporting the incident to her boyfriend. Ms. A initially stated that she had not told her boyfriend immediately but that her boyfriend was aware of the incident before November 1, 2015 when Mr. Dadson tried to resume text contact. At another point, Ms. A said that after the sexual encounter, she went home, had a shower and went to sleep. When she woke up her boyfriend was there and "[she] couldn't keep it away from him, [she] was crying and he did not know why."
[73] It is unclear whether this means that she actually told her boyfriend about the incident the night it occurred or whether this meant she could not keep the emotional impact of the incident away from him and that she was crying without her boyfriend knowing or learning why. There is nothing implausible about her boyfriend finding her crying without knowing why. Even if this did amount to an inconsistency in the evidence about when she told her boyfriend, it does not lead me to doubt Ms. A's evidence about the alleged assault. The precise dates on which things occurred in 2015 are not at issue here. Ms. A conceded that she is not good with dates.
[70] At para. 9, I touched on circumstantial evidence. In R. v. Percy, 2020 NSSC 138, Justice Arnold provided a helpful review of the law in this area in the context of sexual assault, and I adopt his review of the law at paras. 107 – 113.
Honest But Mistaken Belief In Consent
[71] In Percy, Justice Arnold also had cause to review honest but mistaken belief in consent and I endorse his review of the law at paras. 146 – 151:
[146] In R. v. Ewanchuk, [1999] 1 S.C.R. 330, Major J. considered the parameters of honest but mistaken belief in consent:
52 Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to "test the waters.” Continuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable. In R. v. Esau, [1997] 2 S.C.R. 777, at para. 79, the Court stated:
An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified: Criminal Code, s. 273.2(a)(ii).
[147] Justice Major went on to discuss mens rea and consent:
63 Turning to the question of mens rea, it is artificial to require as a further step that the accused separately assert an honest but mistaken belief in consent once he acknowledges that the encounter between him and the complainant unfolded more or less as she describes it, but disputes that any crime took place ... In those cases, the accused can only make one claim: that on the basis of the complainant's words and conduct he believed her to be consenting. This claim both contests the complainant's assertions that in her mind she did not consent, and posits that, even if he were mistaken in his assessment of her wishes, he was nonetheless operating under a morally innocent state of mind. It is for the trier of fact to determine whether the evidence raises a reasonable doubt over either her state of mind or his.
64 In cases such as this, the accused's putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence.
65 Moreover, to be honest the accused's belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused's mens rea, the charge is not proven.
66 Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community's sense of safety and justice. The law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected. At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders.
[148] In Barton, Moldaver J. expanded on Ewanchuk, holding that the defence should be referred to as honest but mistaken belief in communicated consent:
91 This Court has consistently referred to the relevant defence as being premised on an "honest but mistaken belief in consent" ..., and the Code itself refers to the accused's "belief in consent" (s. 273.2(b) (heading)). However, this Court's jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct ... [Emphasis added.] As L'Heureux-Dubé J. stated in Park, "[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant's actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary" (para. 44 [Emphasis in Park.]).
92 Therefore, in my view, it is appropriate to refine the judicial lexicon and refer to the defence more accurately as an "honest but mistaken belief in communicated consent.” This refinement is intended to focus all justice system participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory of assumed or implied consent.
93 Focusing on the accused's honest but mistaken belief in the communication of consent has practical consequences. Most significantly, in seeking to rely on the complainant's prior sexual activities in support of a defence of honest but mistaken belief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken belief that she communicated consent to the sexual activity in question at the time it occurred ... As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. [Emphasis added.]
94 However, great care must be taken not to slip into impermissible propensity reasoning ... The accused cannot rest his defence on the false logic that the complainant's prior sexual activities, by reason of their sexual nature, made her more likely to have consented to the sexual activity in question, and on this basis he believed she consented. This is the first of the "twin myths", which is prohibited under s. 276(1)(a) of the Code. [Some citations omitted.]
[149] In discussing the parameters of the defence, Moldaver J. outlined the need for reasonable steps to ascertain consent:
104 Section 273.2(b) imposes a precondition to the defence of honest but mistaken belief in communicated consent -- no reasonable steps, no defence. It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time ... Notably, however, s. 273.2(b) does not require the accused to take "all" reasonable steps, unlike the analogous restriction on the defence of mistaken belief in legal age imposed under s. 150.1(4) of the Code ... [Citations omitted.]
[150] As to what constitutes "reasonable steps", Moldaver J. stated that the "inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language" (para. 106). He did, however, consider the parameters:
107 That said, it is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law ... Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step ... Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants ...
108 It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.
109 Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care -- mere lip service will not do. [Citations omitted.] [Emphasis added.]
[151] As to the significance of the word "no", Campbell J. stated in R. v. Singh, 2019 NSSC 115:
36 "No" does not mean later and is not an invitation to ask again. Once the word no has been uttered, any change of mind must be made explicit. Anyone who continues with sexual activity once that word has been spoken does so at some legal peril. It is difficult to revoke the explicit "no" with inferences drawn from actions because those actions can be a person's reaction to the refusal of the accused person to accept the explicit "no.”
Analysis and Disposition
[72] On the whole of the evidence I found J and CH to be truthful, authentic and compelling witnesses. They were credible witnesses whose testimony was largely corroborated by evidence external to their separate viva voce testimony. Both J and CH had decent recollections and the flaws in their memory, gaps or inconsistencies arise from normal expected failings and imperfections and not deceit or fabrication.
[73] The Defence argued that it would be dangerous to convict on the evidence of J and CH. In making this argument the Defence pointed to numerous times when each of these witnesses said that they did not remember or did not know about certain specifics dating back to August 2019. To this I make the obvious initial comment that by the time of the trial the matters in issue occurred almost three years earlier. To cite just one example, I appreciated the candour of J when she said that she could not recall whether she worked on the day of the get-together.
[74] Once at the D residence all four teenagers consumed alcohol. J was just [redacted]; however, she had about a year’s experience of drinking alcohol on a perhaps weekly basis. She knew about her tolerance and what it took to become “blackout drunk” and to the point of vomiting. At the time she was around [redacted]. During the course of four or five hours she drank four to seven coolers and on her evidence and her mother’s (which I prefer in this area over CH’s evidence), I find that she consumed five percent alcohol coolers; i.e., Mike’s Hard Lemonade and one of H’s coolers but not Black Fly coolers. Although she took her regular dosage (.75 mg in the morning) of sertraline, I find, based on the expert evidence of Ms. Hird, that this would not have had any bearing on her state of mind. On balance, and having regard to all of the evidence, I find that at the time of the allegation, J would have been intoxicated but not extremely intoxicated.
[75] Undoubtedly J felt the effects of alcohol at the time in question. Given the totality of the evidence I find that soon after CH and H left the bedroom she was sexually assaulted by CM. CM got on top of her and, recalling the words of Justice Major in R. v. Ewanchuk (quoted herein at para. 71) proceeded further in the face of J making it clear that she was unwilling to engage in sexual contact. In particular, I find the complainant’s evidence that she said “stop”, “no” and “please stop” extremely compelling and believable.
[76] I find J’s account of the sexual assault to be buttressed by the evidence of CH. His first-hand account of what he saw from the doorway of the bedroom is specific and provides corroborative evidence of CM sexually assaulting J in the immediate aftermath of her protestations. His description of what he observed was unshaken on cross-examination and I find that he did not embellish the circumstances.
[77] Both J and CH acknowledged their respective levels of alcohol ingestion and understandable memory failings dating back three years. Their evidence was genuine and did not come across as scripted or choreographed. There were inconsequential inconsistencies in their evidence; however, when I weigh the totality of the evidence, I find that these two witnesses were entirely credible and reliable in their separate accounts of CM engaging in unwanted sexual intercourse with J. In the result, I find the requisite elements of s. 271, sexual assault, are made out. I find beyond a reasonable doubt that CM sexually assaulted JM.
[78] CJPM is hereby convicted that he on or about the 5th day of August 2019 at or near Lucasville, Nova Scotia, did unlawfully commit a sexual assault on JM.
Chipman, J.