WARNING
An order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code has been made. The here directly relevant sections of the Criminal Code provide:
486.4 (1) [T]he presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section … 271 [sexual assault] …
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1) … is guilty of an offence punishable on summary conviction.
Court Information
Court: Ontario Court of Justice, Old City Hall - Toronto
Between: Her Majesty the Queen — And — T.S.
Counsel:
- K. Stewart, For the Crown
- A. Karapancev, For the Defendant
Heard: January 16, March 5, 6, 7 and 8, and April 30, May 3 and June 7, 2018
Judge: Melvyn Green, J.
REASONS FOR JUDGEMENT
A. INTRODUCTION
1The defendant and the complainant met at a group counseling session in mid-to-late-February 2017. Frequent digital exchanges, some affectionate, some flirtatious, followed over the next few weeks, as did occasional instances of sexual intimacy other than coitus. They had sexual intercourse on only one occasion: in the defendant's room at his fraternity house in the early morning hours of April 1st. The defendant says it was consensual. The complainant says she was unconscious, blacked out, and did not consent. Almost two weeks later, she attended a police station and reported having been sexually violated. The defendant was then charged with sexual assault.
2The complainant was the only Crown witness. The defendant also testified, as did a witness to his and the complainant's conduct and demeanour around noon on April 1st, some hours after the incident at issue. Many hundreds of pages of digital communications – Facebook, SMS and Instagram messages – between the defendant and complainant supplement their testimonial accounts.
3In order to protect the complainant's identity, I refer to her throughout these reasons as "Carrie". For the same reason, I refer to the defendant as "Troy", pseudonymize other essential actors and, where possible, generalize or mask potentially identifying features that are inessential to a coherent narrative.
4As in all criminal prosecutions, the Crown bears the burden of persuasion. The central issue is whether the Crown has met its onus to establish beyond reasonable doubt that the complainant did not consent to the sexual intercourse that occurred on the night of March 31-April 1, 2017.
B. EVIDENCE
(a) Introduction
5The association between the complainant and defendant spanned some seven weeks. It was complicated, mercurial, and sometimes intense. These descriptors are unlikely to distinguish their relationship from that experienced by many other couples as they first traverse a landscape of historical baggage, personal doubts and interpersonal accommodations. Nor may the fact that, as very contemporary people, nearly every communication with and reflection on the other, no matter how facile or profound, was committed to writing and digitally preserved for perpetuity – or at least long enough for Carrie to provide the exchanges on Facebook (their primary social media platform) to the police. (Carrie affirmed during her initial taped police interview that she had also preserved her texting exchanges with Troy and that she could forward them to the police. In the end, the defence, rather than Carrie, tendered these communications.) The voluminous digital records inevitably inspired a multitude of questions of both parties in both direct and cross-examination, which helps explain why the complainant testified for nearly four full days and the defendant for close to two.
6The duration of the examinations is also in part attributable to the protagonists' psychological profiles and therapeutic exposure. Both are intelligent and highly articulate. They are also very sensitive to the defining features of the disorder with which each of them has been diagnosed and for which each has been counseled and treated over the years. Whether or not consistent with their diagnoses, both present as heavy consumers of alcohol who also make recreational use of other drugs. The complainant has experienced bouts of self-destructive behaviour and suicidal ideation, some during the course of her relationship with the defendant. Both Carrie and Troy regard substance abuse, instability, self-harm, self-doubt, risky sexual conduct, and recurrent trust and honesty issues as consistent with, if not symptomatic of, their diagnostic profile.
7The preserved digital communications and their testimony at trial reflect the parties' hyper-awareness of their own and each other's emotional and behavioural challenges. They tend to intellectualize their condition and its ramifications. At times, their evidence seems grounded in shared assumptions that are not immediately transparent to some – like me – who do not have their experience or sensibilities. I do not mean to suggest that their capacity to recall or recount events is directly compromised by their disorder. However, Troy and, especially, Carrie allowed that their memories were imperfect and adversely affected by the consumption of substantial quantities of alcohol.
8In summarizing the evidence, I touch on only a sample of the very many recorded exchanges between Carrie and Troy, their fine parsing of the intended meaning of each, or their testimonial recall of their subjective reactions to each archived communication. I first introduce the legal scaffolding that frames the relevance of the evidence led at trial. I then set out certain background features essential to situating Carrie and Troy in the narrative that follows. Finally, I canvass, by way of five "chapters", the history of their relationship over the approximately five weeks between their first meeting and the evening of March 31-April 1 (when Carrie alleges she was sexually assaulted) and, then, the final two weeks culminating in Carrie's attendance on the police.
(b) The Legal Context
9As more fully developed in due course, the relevance of Carrie's and Troy's past relations (including, to be clear, their previous sexual involvements) is chiefly contextual to the central question: whether Carrie subjectively consented to having sexual intercourse with Troy on the night at issue or, framed more narrowly, whether she had the capacity to do so. One's sexual integrity is one's own. Irrespective of past behaviour or the objective reasonableness of another's anticipation, everyone has the right, whether or not verbalized, to grant or withhold consent to sexual touching of any sort. The values of personal autonomy, agency and self-worth compel respect for this right – enforced through the criminal law when sexual touching occurs without the requisite consent. As the Supreme Court explained in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] SCJ No. 10, [1999], 1 S.C.R. 330, at para. 28:
Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle … . It follows that any intentional but unwanted touching is criminal.
10A couple's past relations and sexual conduct and the verbal and non-verbal exchanges that precede or accompany any physical intimacy may give rise to reasonable ambiguities or honestly held expectations that, at least theoretically, have exculpatory bearing on a defendant's mental state at the time – that is, whether he or she sincerely believed a complainant conveyed consent to the impugned touching.
11As an elementary legal proposition, a finding of guilt for any criminal offence depends on establishing proof of the concurrence of both the physical element of the offence (the "actus reus") and a legally complimentary mental element (or "mens rea") on the part of the alleged perpetrator. The actus reus of the offence of sexual assault is, at simplest, sexual touching without consent. The mens rea, in essence, is intentional sexual touching with knowledge of or recklessness or willful blindness towards the absence of consent. On occasion, the physical element may be satisfied but the evidence is legally inconclusive as to the occurrence of the requisite mens rea. In such cases – that is, those where reasonable doubt accompanies an assertion of an honest but mistaken belief in consent – the prosecution's case falls short.
12The Supreme Court concisely summarized the law governing the interaction between the essential elements of the offence in R. v. Davis, 1999 CanLII 638 (SCC), [1999] S.C.J. No. 67; [1999] 3 S.C.R. 759, at paras. 80 and 85 (citations omitted):
The actus reus of sexual assault requires a touching, of a sexual nature, without the consent of the complainant. The mens rea requires the accused to intend the touching and to know of, or to be reckless or willfully blind as to the complainant's lack of consent. In some circumstances, it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but mistakenly believe that the complainant consented. In these circumstances, the actus reus of the offence is established, but the mens rea is not.
[In circumstances where] the complainant and the accused relay diametrically opposed stories … [and where] … it is impossible to splice together the evidence to create a third version of events in which the accused honestly but mistakenly believed the complainant consented, the trial becomes, essentially, a pure question of credibility. If the complainant is believed, the actus reus is made out and the mens rea follows straightforwardly. If the accused is believed, or if there is a reasonable doubt as to the complainant's version of events, there is no actus reus. There is no third possibility of an honest but mistaken belief in consent, notwithstanding the accused's assertion that the complainant consented
(For but one very recent application, see: R. v. H.E., [2018] O.J. No. 5716 (C.A.), at para. 4.)
13To be clear, unlike many sexual assault prosecutions the evidence here does not admit to a "third version" or "third possibility". Nor does the defence advance or rely on one. As tendered through the testimony of both Carrie and Troy, there is no realistic basis for a defence of mistake of fact. Accordingly, I do not, in the survey that follows, detail their many daily digital exchanges or less frequent physical involvement any more fully than is necessary to sketch the larger context in which the March 31st events unfolded and, ultimately, the irreconcilable testimonial recall of the complainant and defendant as to their sexual encounter that evening.
(c) Backgrounding and Foreshadowing
14Through late-February and much of March of 2017, Carrie and Troy participated in the same group-counseling program at the Centre for Addiction and Mental Health (CAMH). The group met every Tuesday evening. Carrie was then a 20-year-old college student. She lived close to the "Chinatown" area of downtown Toronto. Troy, then 23, was enrolled at the University of Toronto and lived in a fraternity house near the campus, walking distance from Carrie's home.
15The rules of the counseling program attended by Carrie and Troy prohibited sexual relations between members of the group. At the time, Carrie was involved in a girlfriend/boyfriend relationship with "Darryl". It remains to me unclear what, if anything Carrie actually told her boyfriend about Troy. By early March, much more was said to Troy about Darryl. She messaged Troy that she and her "partner … are both pansexual" and "we have an open relationship". Troy was also told something about the status of her relationship with Darryl and its at least occasional tribulations. It was Troy's understanding that Carrie had informed Darryl about her involvement with him, including at least some aspects of their sexual intimacy. Carrie's recorded exchanges with Troy make clear (as does her testimony) that her relations with Darryl were fraught ("issues" and "friction") and that she had given him cause to distrust her therapeutic discipline.
16As drawn by Carrie and routinely renegotiated with Troy, the boundaries of their sexual intimacy were incrementally relaxed in the weeks preceding the evening at issue. By mid-March, on at least one and maybe more occasions, they spent hours together naked in Troy's bed engaging in a variety of sexual foreplay. However, prior to March 31st, Carrie consistently maintained that penile-vaginal intercourse was a sexual Rubicon that she and Troy were not to cross. Although he continually made such requests, Troy was equally adamant that he never forced himself on Carrie, was always solicitous of her boundaries, and expressly requested her consent before endeavouring to extend them.
17Among other rationales, Carrie cited not wanting to cheat on Darryl, lose his trust or show disrespect, and a fear of hurting him and thus herself, as reasons for not engaging in sexual intercourse with Troy. She testified she maintained this posture despite Troy's persistent advances and what she sometimes suggested was her own contrary inclination. Based on Carrie's explanations, Troy understood that her commitment to Darryl was the primary impediment to her engaging in intercourse with him. To avoid the specter of cheating or deceit, on at least one occasion, perhaps more, Troy asked Carrie to seek Darryl's approval to their having intercourse together. According to Carrie, these efforts proved futile.
18Through her evidence in direct examination and that recorded in her earlier statement to the police (to which she was frequently returned while testifying), Carrie initially portrayed herself as a reticent participant in either sexual or emotional relations with Troy. She was concerned, she says, to maintain a "platonic" relationship – an attitude explicitly reflected in some of her messages and acknowledged as such in Troy's. I accept that Carrie, at least at times, sincerely aspired to honour what she called the "platonic rule" with Troy. However, as she conceded in cross-examination, Carrie did not consistently adhere to this standard in either word or deed. She was, I infer, conflicted – about her desires, her self-control, her admitted need for external affirmation, her relationship with Darryl, and, most immediately pertinent, her relationship with Troy. Viewed globally, her evidence in cross-examination, along with many of the archived exchanges, paint a somewhat different picture, one characterized by reciprocal importuning and shared sexual engagement, and punctuated by mutual expressions of care, concern, fondness and, on occasion, romantic love.
19Again, the extent of Tory and Carrie's shared sexual history and the strength of their affection is primarily of contextual value as regards the core issue of sexual consent. So too is Carrie's testimony that, prior to March 31st, Troy always respected her sexual boundaries and that any sex in which they engaged was entirely consensual. Even if Carrie and Troy were then madly infatuated, and even if they had earlier enthusiastically consummated their love, it remained Carrie's occasion-specific choice as to whether she did or did not consent to sexual intercourse with Troy in the early hours of April 1st.
20Still, there are adjudicative implications to the disconnect between Carrie's initial (and, I find, at least partly disingenuous) portrait of the tenor of her relationship with Troy and the image I find more validly limned by the digital record, Troy's testimony and her own in cross-examination. The inconsistency between Carrie's testimonial presentation and what I take to be the historical reality inevitably bears on any assessment of credibility.
21I turn then to the chronology of the complainant's and defendant's relationship.
(d) Chapter 1: Around February 21 to March 7
22Carrie and Troy walked and talked together after their first group session at CAMH. Frequent digital communications quickly followed their initial exchange of co-ordinates. The first message was from Troy. Relying on her Facebook records, Carrie testified that she did not respond for more than five days as, she explained, she was in no hurry to get back to him. Faced with her texting records in cross-examination, Carrie conceded that she returned Troy's message within the day. They walked home together after the February 28th CAMH session.
23On March 2nd, Carrie spent part of the day with Troy in his room at his frat house. Troy suggested sexual intimacy. Carrie says she told him she wasn't interested. There was some kissing and, when Troy walked her home, more physical fondling on a front porch couch. Carrie testified that Troy's advances made her feel uncomfortable. In cross-examination, Carrie agreed she never verbalized her discomfort or told Troy to stop. She also agreed that she had told Troy not to tell her boyfriend about their kissing; she feared he would construe her conduct as cheating. She had also shared drugs with Troy that evening, a matter she failed to mention to the police or earlier in her testimony.
24At Carrie's urging, they negotiated the duration and anatomical boundaries of Troy's physical intimacy with her on March 2nd. Carrie first testified she no more than gently reciprocated, by touching Troy's head. Later that evening, Troy sent Carrie a photo of conspicuous scratch marks on his neck, teasing her about their possible source. Carrie responded before 9am the next day, March 3rd, allowing that the scratches "may have been from me from on the couch", mock-apologizing, and assuring Troy that "I did have a great time". In cross-examination, Carrie testified that she was lying to Troy about "hav[ing] a great time" and, in a March 5th exchange, about it being her pleasure to please him. She was also lying, she says, when she messaged Troy that she "turn[s] into a sex machine when drunk". This latter communication, she explained, was an effort to validate her membership in the diagnostic profile she and Troy shared so as to maintain his interest in her. Carrie was attracted to Troy, she says, but not romantically.
25Carrie agreed that the words she used in her interview with the police were, in effect, calculated to leave the impression that she did not want to hang out with Troy, tried to maintain her distance from him, and made up excuses to avoid his persistent invitations. In cross-examination, she conceded socializing with Troy at least twice between March 3rd and March 8th, and that she had messaged Troy in the same period about how she "really like[d] talking and hanging" with him and how "important" he was to her. Her messages, she said, "exaggerated" the intensity of her feelings. She wanted to preserve her friendship with Troy and to mitigate the risk that he would somehow compromise her continued participation in the counselling group. Further, she liked to "get free alcohol".
26More generally, Carrie ultimately agreed that her messages to Troy throughout their relationship were sometimes "flirtatious", and that she reached out to and sought to socialize with him as he did with her. She also agreed that the reality was inconsistent with the impression she left the police, one of an emotionally imbalanced relationship in which Troy did all the pursuing.
(e) Chapter 2: March 8 to March 17
27Carrie admitted herself to a mental health facility on March 8th. Troy offered to and did accompany and support Carrie through the lengthy admission process. He visited Carrie at the hospital throughout during her nine-day hospitalization and, subject to her curfew, she returned the visits.
28Troy testified that he and Carrie did not have sexual relations during her hospitalization. Carrie's recall is different: although she initially fixed a "no sex" rule, this was soon replaced by a new "guideline" of "anything above the waist" during at least one of her day-pass visits to Troy's frat house. As Carrie explained, she wanted to feel wanted and wanted Troy to want her sexually but she did not want to have "sex" – meaning "sexual intercourse" – with him. In one Facebook message, dated March 14th, she tells Troy that she loves Darryl and "doesn't want to hurt him", that hurting him hurts her, and that "there are many things she wants to do but can't due to circumstance". She testified she did not know "how to navigate the relationship".
29Troy was also "conflicted". In several exchanges, Troy, in responding to Carrie's positioning, messaged that he was "perfectly fine" with being her "friend", with maintaining a solely platonic relationship. However, in cross-examination he agreed that he wanted a relationship with Carrie that included emotional and sexual dimensions. It was more accurate, he said, to describe his communications with Carrie in this period as conveying his acceptance and support rather than his true desires.
30At least prior to March 31st, Troy, says Carrie, was always respectful of and sensitive to her dilemmas, conflicts and need for boundaries. Troy's preserved messages appear consistent with this characterization.
(f) Chapter 3: March 18 to March 31
31There is little if any change in the tenor or candour of the messages between Troy and Carrie after her hospital discharge on March 17th. Sometimes their exchanges were infatuative, sometimes reciprocally flirtatious, and sometimes more reflective of a close and affectionate friendship as in, for but one example, a Facebook exchange on March 21st that includes "heart" emojis, calling each other "lovely", and sincere-sounding expressions of the joy of having each other in their lives.
32Carrie visited Troy several times before the party on March 31st. He continued to propose that they engage in sexual intercourse. She continued to draw the line at copulation. However, they engaged in extended intimacies while naked, including reciprocal oral sex and digital manipulation of each other's genital and anal regions. The sexual activity occurred during four visits in this two-week period, according to Troy or, in Carrie's recall, on "two occasions" (or perhaps more, she later allowed). In cross-examination, Carrie testified she participated because she "wanted to" and it was enjoyable. She denied performing any further sexual activities with Troy until, on further questioning, conceding she also masturbated him. Carrie had a conscious memory of these sexual intimacies when she spoke to the police and during her examination in chief. Other than a reference to genital fondling, however, she said nothing about any of them until directed to these events during her cross-examination. She could not explain why she failed to earlier mention these sexual exchanges. If slowly, she conceded mischaracterizing if not misleading the police as to the reciprocal emotional and sexual nature of her relationship with Troy.
33Around March 28th, when at some point alone in his room, Carrie used Troy's laptop to take several flirtatious photos of herself that she saved to the same computer. The photos are unmistakably of Carrie. They display her simulating fellatio with her finger. When Troy later teased her about them, Carrie evaded admitting taking the photos, although her denial was accompanied by a winking, smiley-face emoji. At trial, Carrie ultimately conceded taking the selfies while repeatedly denying any conscious recall.
(g) Chapter 4: March 31 to April 1
(i) Introduction
34The narrow timespan of March 31st to April 1st encompasses the frat party, Troy and Carrie's sexual intercourse that evening, and the events prior to Carrie leaving the frat house. The testimony of Carrie and Troy afford direct evidence of these events, as do (if of a more limited aperture) the observations of "Andrew", another member of the same fraternity, as to the conduct and demeanour of Troy and Carrie around noon on April 1st.
(ii) Carrie's Account
35Carrie took caffeine pills before heading to the frat house on March 31st. She attended as Troy's "girlfriend" (a shared conceit) so as to avoid Troy having to pay for her admission. They bought liquor – a bottle of vodka – before the party. On returning to Troy's room, she declined his invitation to have sex. She was not, she said, going to have penile-vaginal sex with Troy. Further, she had put a lot of time into her outfit for the party and did not want to take it off.
36Carrie did accept Troy's offer to consume an Adderall pill – a drug, she explained, prescribed for attention disorders but often used as a stimulant. She was aware of the drug's stimulating effects and consumed it of her "own volition". She likes, she added, to take drugs. Troy, she says, asked, "How much do I have to give you to have sex with me?" She responded, in effect, that it didn't matter, as she was not having sex with him. It was "no problem", she said, if he had sex with someone else.
37They went into the main party area. Troy, she says, kept pouring her wine and she kept willingly drinking. Carrie was also drinking vodka and cider, and smoking marijuana she had brought to the party. They returned to Troy's room, along with some of his friends. Carrie snorted a further Adderall and some cocaine, both proffered by one of the others in the room. She denied being physically affectionate with Tory or saying she loved him. She could not recall Troy ever taking drinks from her.
38Carrie began to feel nauseous and dizzy. Fully clothed, she lay down on Troy's bed and, she says, blacked out. In cross-examination, she agreed that she advised Troy that she was going to take a nap before she lay down on his bed.
39Carrie's next memory was of feeling discomfort. She heard someone she strongly believed was Troy say, "need more lube". She "blacked out" again. She felt foggy and disoriented when she next woke. She was lying next to Troy in his bed. Both were naked. Her recall of their conversation is "a little hazy". She remembered that Troy "acknowledge[d]" they had sex and he needed to buy some more lube, and that she "acknowledge[d]" she was unconscious.
40In direct examination, Carrie treated "blacked-out" and "unconscious" synonymously to describe a state, "like asleep", in which she was not able to move or hear or see anything. In cross-examination, she defined "blacked-out" as having two dimensions: a state of unconsciousness and, second, of having no memory of what occurred while in that state. There is, she said, a related "state" of being "very drunk" where one is not unconscious but is so intoxicated that one cannot remember portions of what occurred in that condition. Absent external observers or other contemporary record, Carrie agreed that it could be difficult to distinguish between unconsciousness and lost memory. She rejected the suggestion that she had consented to having sexual intercourse with Troy but simply could not remember doing so. She had experienced alcohol-induced unconsciousness in the past and, she said, recognized the condition.
41Carrie also rejected an alternative scenario in which she took a nap, woke up a few hours later, consumed some cocaine, then undressed and engaged in consensual intercourse with Troy, followed by more cocaine and further sex. She did agree that, "to an extent", it was "not unusual" for her to do things and regret them the next day. She also agreed that it was not uncommon for her to set sexual conduct boundaries which she later violated.
42After her verbal exchange with Troy in his room, Carrie dressed, left the frat house and went home. She testified she was no longer intoxicated but, rather, awake, conscious and lucid. She was also, she says, upset, about what happened, about having been "raped", and that she felt scared and uncomfortable. Presented with an alternative chronology for the morning of April 1st, Carrie denied hanging out with some of the frat boys (including, specifically, Andrew), helping clean up after the party, sharing breakfast with Troy, and then returning to his room to watch TV with him before finally going home.
43Carrie felt tired and sore on April 1st. She and Troy did not exchange messages that day.
(iii) Troy's Account
44Troy expected Carrie to arrive at the frat house about 4pm on March 31st. She arrived around 7, as Troy was helping prepare for the party. They walked to a liquor store where he bought a 26-ounce bottle of vodka and a second of bourbon. He asked Carrie if she wanted to have sex when they returned to his room. She declined. She accepted his offer of an Adderall pill, which she swallowed. She also drank a glass of cider while he drank cider or a beer and, perhaps, a small shot of vodka. Although he may have done so, he could not positively recall asking, "How much alcohol or drugs do I have to give you to sleep with me". Had he, it was intended as a joke rather than a serious question.
45Troy and Carrie finally went downstairs and joined the party between 9 and 10pm. They returned to his room, along with several of Troy's friends, about an hour later. One passed around a pre-mixed alcoholic drink. A second, "Betty", offered them crushed Adderall. Both Troy and Carrie snorted some. Carrie, he says, was telling others she loved him and being ostentatiously affectionate. Troy began to take drinks from Carrie as she was becoming "visibly intoxicated".
46Around midnight, Carrie told Troy she was tired. She lay down on his bed to have a 20-minute nap. Troy shepherded the other guests out of his room, locked the door behind him so Carrie would not be disturbed, and rejoined the party downstairs. He returned to check on Carrie every 20 to 30 minutes over the next three hours. On one occasion Carrie said she was feeling sick. Troy got her a glass of water and she fell back asleep. Other than a kiss on the cheek, Troy says he did not touch Carrie during any of these visits.
47About 3am, Troy returned to his bedroom with Betty so she could break up some of her cocaine in his room. Carrie woke up while Betty was still in the room. She seemed fine – "more or less sober", and certainly not impaired. They all talked and listened to music. Then, or right after Betty left, Troy and Carrie each snorted a line or two of the cocaine she left for them. They then kissed, removed each other's clothes, and began to have sex together. In response to Troy's request to enter her, Carrie replied, "Just put it in, already". He did. He asked if he could ejaculate inside her. Carrie said not to as she was uncertain whether she had consistently taken her contraceptive pills. He honoured her wish. They then each snorted another "bump" ("less than a line") of cocaine, and began a second round of sexual intercourse. This time, Carrie answered "yes" to his request to ejaculate inside her. After some talk and further mutual arousal, they engaged in a third episode of consensual intercourse, culminating as had the second. At one point Carrie said she was experiencing some discomfort. Troy asked if she wanted him to apply some lube. She did. Troy described Carrie as awake and positively responsive throughout their bouts of sexual intercourse. They fell asleep after the third round.
48They woke up sometime before noon on April 1st. Troy asked Carrie how she felt. She said she had a good time. She said nothing about having been unconscious. They went downstairs together and helped Andrew, one of Troy's frat brothers, move the dining tables back into the dining room. Troy made breakfast for Carrie, after which they returned to his room and watched a couple of episodes of a Netflix series. Carrie then went home. Troy described Carrie's demeanour until she left as "normal".
(iv) Andrew's Account
49Andrew and Troy were members of the same fraternity. Andrew, who had since graduated, had known Troy since 2015. The frat residence housed about ten members, including Andrew and Troy, in March of 2017. Through her relationship with Troy, Andrew had also come to know Carrie. He described her as a generally soft-spoken, quiet woman, but not shy. While she sometimes appeared awkward in social situations, she was not eager to leave them.
50If only briefly, he had seen Troy and Carrie together at the frat house party on the evening of March 31st. He also saw them the next morning, before noon, as they came down together to the living and dining room areas from Troy's upstairs bedroom. As occurs about twice a year, four large dining room tables had been relocated to the kitchen to make room for the party. With Troy and Carrie's help, Andrew carried them back to the dining room. To his amazement, Carrie supported one side of each heavy table while he and Troy together lifted the other side. Carrie, who is not a large woman, was laughing. Carrie did not appear anxious, uncomfortable or in any way "out of the normal". She and Troy seemed happy and friendly together. Troy cooked breakfast for Carrie and himself. They spent about 45 minutes together downstairs.
51A few weeks after March 31st, Troy told Andrew that he had been criminally charged. Andrew could not remember the specific charge other than that it was of a sexual nature and involved Carrie's allegation that Troy had taken advantage of her on the night of the party. Troy did not share any further information. He and Troy were friends, but not intimately so. His fraternity relationship with Troy did not, he said, interfere with his duty to tell the truth when testifying.
(h) Chapter 5: April 2 to April 12
52In brief overview, over the following couple of weeks Carrie became increasingly vocal about what she viewed as her sexual assault. She says she discussed the incident with Conrad, the CAMH counsellor, without identifying Troy. Then, around April 8th, she directly confronted Troy with the allegation. Their exchange was very emotional. Troy disclaimed any moral responsibility. A few days later, after the April 11th group session, Carrie again spoke to Conrad, naming Troy on this occasion. The next day, she went to the police. A more detailed summary follows.
53Carrie and Troy exchanged affectionate notes (including emoji hearts) and messages about getting together during the first few days of April. On their face, none appear to reflect any material change of tone from those preceding March 31st. Carrie wanted, she said, to confront Troy. However, she maintained the pretense that everything was copacetic to avoid the risk that he would disclose their sexual relationship to Conrad, thereby jeopardizing her continued participation in the counseling group. On learning that Troy had a scheduled one-on-one meeting with Conrad on April 3rd, Carrie asked if she could join. It did not happen. She visited Troy that evening or the next. She consumed a fair amount of wine before the visit and appeared intoxicated when she arrived at the frat house. She intended, she says, to confront Troy, but lost her confidence. Instead, they cuddled. She fell asleep with Troy and shared breakfast with him the next morning before heading home.
54Carrie included several photos, including a close-up of her tongue, while Facebook messaging with Troy on April 7th. She denied the photos were "flirtatious", describing them instead as part of a "friendly" exchange. The next day, April 8th, Carrie messaged Troy around 3am. She spoke of "feeling hopelessness", "like nothing matters", and "suicidal, btw". Troy offered to do whatever he could to help. "You could just be on hand for me to talk to", Carrie replied. "Whatever you need", said Troy, for which Carrie thanked him.
55Midday on April 7th or 8th (almost certainly the latter), Carrie for the first time directly confronted Troy about the frat party incident. She told him what had happened was not OK. In Troy's recall, Carrie never said she was unconscious during their sexual intercourse but, rather, that she had no memory of the event other than his asking if she wanted more lubrication.
56Troy's responded to Carrie's allegation of sexual impropriety by, in effect, telling her that she was responsible for the foreseeable consequences of her own drinking. Carrie testified she was sure Troy had "raped" her, but she did not characterize it as such in their exchange as she was, she says, afraid of him. Troy was relieved that she did not allege he had raped her as he had been falsely accused of this offence in the past. He was very upset and emotional. Carrie say he tried to pull her onto his bed and prevent her from leaving. Troy agrees he asked Carrie to comfort him (which she declined), but denies restraining her or impeding her departure. When she did leave, Carrie describes Troy as lying on his bed crying and shaking. In cross-examination, Troy explained his breakdown as a reaction to losing an intimate friend, of being abandoned. In a text exchange late that evening, Troy "apologize[d] for today". "If you still want to be friends", he continued, "I'll do my best not to let it happen again". Carrie understood that the apology was in reference to Troy's emotional collapse that day, not the March 31-April 1 incident.
57Carrie says she discussed her assault with Conrad during one of her regular one-on-one sessions in the week or so following April 1st. It was not until after the counseling group on April 11th that she finally identified Troy as the perpetrator. Carrie says she outed Troy because she had seen him talking with a "new girl" during the group and feared "someone else" could be victimized. She claimed not to understand why Conrad advised her she could not return to the group. Only one session remained and she was very disappointed she would not complete the program.
58Carrie messaged Troy the next day, April 12th. She told him she "caved" after the previous day's group session, told Conrad "about everything that happened between" them, and that Conrad said he had "to get in touch with CAMH lawyers". In answering Troy's inquiry, Carrie explained that she understood CAMH's lawyering-up as a corporate response to its potential liability. Troy offered to refrain from further communicating with Carrie. Despite her request, he was unwilling to offer to withdraw from the group and divulge his sexual relationship with Carrie. He reasoned it "could easily be mistaken as an admission of guilt" that had only a remote possibility of permitting Carrie's re-admission to the CAMH program while almost guaranteeing his expulsion as well.
59Carrie attended the police and lodged her criminal complaint later the same evening.
C. ANALYSIS
(a) Introduction
60The theory of the Crown is straightforward. Troy consistently pursued having sexual intercourse with Carrie. Finally, on March 31st, he had the opportunity to consummate his objective. Carrie passed out on his bed. She could no longer decline Troy's advances. She did not consent to sexual intercourse, nor could she as she did not have the capacity to consent. In short, Troy took sexual advantage of Carrie while she was unconscious. What followed constitutes the offence of sexual assault.
61The evidence in support of lack of consent is direct, not circumstantial. As the Court of Appeal recently explained in R. v. Carson, 2018 ONCA 1001, at para. 10 (citation omitted):
Nor in our view was the evidence that the complainant did not consent circumstantial. She testified that she was asleep when the sexual activity occurred. If the jury believed that evidence, the jury would, without drawing any further inference from that evidence, conclude that she had not consented to the sexual activity. A person who is asleep cannot consent to sexual activity. If the jury believed the complainant and concluded that she was asleep at the relevant time, it followed without the need to draw any inference that the complainant did not consent to the sexual activities.
62The defence position is directly contrary to that advanced by the Crown. Carrie drew the boundaries of their sexual intimacy. Troy tested the boundaries but always respected them or, as things developed, they're incremental relaxation – if, prior to March 31st, still short of sexual intercourse. Carrie fell asleep on Troy's bed at the frat party. When she awoke she was present and coherent. Whether or not her inhibitions were relaxed by the consumption of alcohol and drugs, she freely engaged in intercourse – several times, on Troy's account. Carrie was a conscious and willing participant in all their sexual activities that evening. Her words and conduct conveyed consent. There was no ambiguity and no assault.
63The two accounts are diametrically opposed on the critical issue of consent and, more narrowly and critically still, as to whether Carrie had the capacity – the requisite appreciation of act, identity and volition – to exercise consent, to choose whether or not to have sexual intercourse with Troy. I turn then to the law governing the resolution of this issue.
(b) The Governing Legal Principles
(i) Introduction
64Two legal doctrines inform the required analysis. The first pertains to the substantive law respecting sexual assault, the integral issue of consent, and, as arises in the case at bar, the meaning of capacity in relation to consent. The second is concerned with the rules affecting the law of evidence and proof. As in all prosecutions dependent on a testimonial record, and especially those, like here, of a she-say/he-say quality, close attention need be paid to the principles governing the assessment of credibility. I address each legal domain in turn.
(ii) Sexual Assault and Consent
65I earlier summarized the essential properties of the offence of sexual assault. As noted, the resolution of the case before me ultimately turns on whether the Crown has proven the actus reus, the essential physical component, of the offence – that is, that the defendant sexually touched the complainant without her consent. As set out in R. v. Ewanchuk, supra, at paras. 25-26:
The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. …
The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred. [Citations omitted; emphasis added.]
It is the third of these elements – that pertaining to consent (or, more accurately, its absence) – that is at issue in this case.
66The purely subjective nature of consent was further clarified in McLachlin C.J.C.'s reasons for the majority in R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 37:
Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent. Conversely, the only question for the actus reus is whether the complainant was subjectively consenting in her mind. The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established. [Emphasis added.]
67For purposes of sexual assault prosecutions, "consent" is defined in 273.1 of the Criminal Code to mean "the voluntary agreement of the complainant to engage in the sexual activity in question". This broad proposition is subject to a number of qualifications and exceptions. Most immediately pertinent: "no consent is obtained … where", as set out in sub-s. (2)(b), "the complainant is incapable of consenting to the activity". An unconscious complainant clearly does not have the capacity to consent. (See, for example, R. v. Esau, 1997 CanLII 312 (SCC), [1997] 2 S.C.R. 777; R. v. Humphrey, 2001 CanLII 4806 (ON CA), [2001] OJ No 1263, 143 O.A.C. 151, at para. 56; R. v. J.A, supra, at para. 36; and R. v. Al-Rawi, infra.) However, the test to be applied in differentiating capacity from incapacity in cases falling short of complete loss of consciousness has proven a matter of some jurisprudential controversy.
68Beveridge J.A., speaking for the Nova Scotia Court of Appeal in R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 116, noted that it is legally erroneous to "equate incapacity only with unconsciousness". As he said in the preceding paragraph:
It is self-evident that a person who is unconscious or insensate lacks the capacity to enter into a voluntary agreement to engage in sexual activity. But that is not the divide between capacity and incapacity.
69Following his extensive review of the authorities, Justice Beveridge crafted what he described, at para. 114, as a "minimal or limited cognitive capacity" test. More fully set out at para. 66, it reads:
[A] complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:
appreciating the nature and quality of the sexual activity; or
knowing the identity of the person or persons wishing to engage in the sexual activity; or
understanding she could agree or decline to engage in, or continue, the sexual activity. [Emphasis added.]
70The importance of identifying the degree of impairment or compromise of a complainant's "operating mind" most frequently arises in cases in which the Crown's incapacity argument rests on a claim of cognitively disabling intoxication. As explained Beveridge J.A, at para. 113,
it is well established in our jurisprudence that an intoxicated person may still have the capacity to voluntarily agree to engage in sexual activity despite the expectation that if sober or less impaired they would not have done so.
Duncan J. said much the same in in R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468, at p. 475: "Mere drunkenness is not the equivalent of incapacity". The full paragraph (as adopted by Trotter J., as he then was, in R. v. Meikle, 2011 ONSC 650, 84 C.R. (6th) 172, at para. 57), reads:
An obvious example of incapacity would be a complainant who was in a coma at the relevant time. Cases where the complainant is said to be incapable of consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision-making, memory loss, loss or inhibition or self-control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at time. [Citations omitted.]
71To be clear, the incapacity said to vitiate consent in the matter before me is grounded in an assertion of unconsciousness – like a "coma" in Justice Duncan's example or "asleep" in the language of the complainant. Other than through speculative reasoning, in my view none of the evidence – not the complainant's, the defendant's or that which can be reasonably inferred from these or any other sources – supports a finding that, although conscious, the complainant was too intoxicated, as put in Al-Rawi, at para. 114, "to understand the nature and quality of the activity, the identity of the [second] person … and the awareness of choice to agree or decline".
72The issue of memory loss is arguably related to an assertion of incapacity. Other than a very few words she believed she heard the defendant utter, the complainant claims to have no memory of the salient events. In itself, absence of memory is not probative of her lack of or incapacity to consent: see R. v Esau, supra, at p. 297.
73In R. v. J.R., 2006 CanLII 22658, 40 C.R. (6th) 97 (Ont. S.C.), the Crown, as described at para. 17, invited the court to treat the complainant's memory loss as "direct evidence that she did not subjectively consent to any sexual contact". Ducharme J., at para. 19, could not "find any support for the Crown's proposition in the jurisprudence". "In none of these cases", he continued, "is a blackout or memory loss, without more, taken as proof of lack of consent or lack of capacity". Justice Ducharme made clear in the following paragraph that "evidence of memory loss or a blackout" might constitute "circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about [consent or capacity] at the relevant time" (emphasis added). I note that the complainant is here the exclusive evidentiary source respecting her unconsciousness "at the relevant time".
(iii) Credibility
74Only three witnesses testified. A careful evaluation of their individual credibility is essential to achieving a fair and just result. In the end, the question is not which of two contrary accounts to believe or whose evidence is preferred. The question, rather, is whether there is any reasonable basis to doubt the probative force of the Crown's case; if so, an acquittal must follow. Only this approach honours both the presumption of innocence and the collateral burden on the Crown to establish the physical and mental elements of the offence charged beyond any reasonable doubt.
75R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 remains the venerable precedent in dealing, as said in R. v. J.H.S., 2008 SCC 30 (CanLII), 231 C.C.C. (3d) 302, at para. 9, with "what reasonable doubt means in the context of evaluating conflicting testimonial accounts". Like every criminal court judge, I routinely have cause to delineate the analytical framework governing the assessment of credibility. (See, for one authority-saturated example, R. v. Santos-Medeiros, 2015 ONCJ 396, at paras. 62-65.) The settled guidelines follow.
76"Credibility" encompasses two distinct dimensions of creditworthiness – honesty and reliability. The first, "honesty", comprehends the truthfulness, sincerity and candour of a witness' evidence while the second, reliability, speaks to factors that bear on a witness' perception, memory and communication. Both affect the trustworthiness – the accuracy and believability – of a witness' testimony.
77Again, the ultimate and immutable standard is that of proof beyond reasonable doubt – not which account is preferred or found more probable. R. v. W.(D.) and its many progeny make clear that, no matter its provenance, so long as there exists an evidentiary basis for reasonable doubt respecting the veracity or correctness of a vital element of an incriminatory account, an accused must be acquitted, even if he does not testify or his evidence is entirely rejected.
78Like every trier of fact, a judge must assess the credibility of the complainant, and where, as here, he testifies, the defendant, within and against the evidentiary backdrop afforded by all the evidence. A judge may, with reason, accept none, some or all of any witness' evidence and accord appropriate weight to those parts of the evidence that he or she does accept.
79A basis for reasonable doubt may be found in the evidence of any witness or combination of witnesses or in the absence of probative evidence. To be clear, a finding of guilt may also be safely grounded on the evidence of a single witness, if sufficiently credible and persuasive to meet the requisite standard for such verdict. Indeed, a single inculpatory account may prove adequately compelling in and of itself to provide a rational basis to reject conflicting defence testimony.
(c) Applying the Law
80Viewed as free-standing chronicles of the evening's events, there is little to choose between the testimony of the complainant and that of the defendant. The credibility of the two accounts is relatively evenly balanced when each is assessed in isolation from the larger evidentiary record. Neither tortuously strains credulity. Each fits comfortably into the larger narrative and historical arc of their relationship. While both suffer from some internal inconsistencies, there is nothing in the witnesses' demeanour or the detail or internal logic of their individual accounts to mortally discredit the trustworthiness of either protagonist.
81Of course, a legally correct credibility assessment extends beyond an independent reading or bald comparison of the testimony of contradictory witnesses. While the authorities clearly direct that I must acquit if I cannot decide which of competing accounts to accept, the totality of the evidence here includes more than the two testimonial narratives of the same event. A proper credibility reckoning demands consideration of each account in the larger evidentiary context, including, where relevant, events before and after March 31st and with reference to any corroborative evidence and external inconsistencies. It is this latter exercise that, in my view, is determinative of the appropriate verdict in this case.
82Troy's account is hardly free from concern. He testified in chief to agreeing not to pester Carrie for sex and to acceding to her wish for a platonic relationship. His digital messages and conduct repeatedly contradict these assertions. He said that Carrie was not intoxicated at the time they had sex on March 31st, yet he testified that a few hours earlier he had been sufficiently concerned about her alcohol consumption to remove drinks from her hand. Further, when Carrie first confronted him with her allegation of sexual impropriety on April 8th, he did not respond by telling her she was then sober (as he testified at trial) but, rather, that she became intoxicated at the party despite her knowledge of the risk of sexual consequences. He thanked Carrie for not accusing him of "rape" when, on his account, there was no room for any uncertainty about the volitional nature of their sexual interaction on the evening of March 31st. And Troy's inquiries of Carrie respecting the "legal" implications of her disclosure to Conrad, the CAMH group leader, may be read, at least arguably, as reflecting more anxiety about his exposure to penal liability than the danger of expulsion from the counseling group.
83In fairness, the evidence affords explanations, if not always entirely satisfying answers, for many of these areas of concern. The character and intensity of his relationship with Carrie, both emotional and sexual, was malleable; Carrie adjusted – both relaxed and contracted – the boundaries of their intimacy, and she (as did the defendant in kind) sometimes sent romantic and flirtatious messages and photographs that belied her adherence to the "platonic rule". Yes, Carrie was intoxicated at the party but, Troy clarified, she had regained sobriety after her three-hour nap. He attributed his gratitude to Carrie for not accusing him of rape to having been falsely accused of rape in the past. And Troy's Facebook exchanges with Carrie in the wake of her disclosure to Conrad reflect, on their face and through his later testimony, a sincere concern to retain the therapeutic benefits of remaining in the CAMH group. In any event, and irrespective of any basis for a subjective sense of fault, his inquiry of Carrie as to the reasons advanced for CAMH's legal concerns is hardly an inappropriate, response in the wake of her allegation of sexual assault.
84Viewed in light of these inconsistencies and his somewhat strained efforts to reconcile them, there remains a rational basis for questioning the validity of the defendant's denial of sexual misconduct. Of course, the complainant's testimony – that alleging sexual assault – commands equally close scrutiny and, on review, reason for skepticism regarding the creditworthiness of her account.
85Again, that Troy had sexual intercourse with the complainant is not at issue. The accusation of sexual assault rests on the absence of consent. Its evidentiary foundation is Carrie's assertion that she did not consent as she could not consent: she was blacked-out at the time. She did not, to be clear, testify that she was too intoxicated to have her capacity to consent was compromised by her intoxication. Nor, in my view, does Troy's or any other evidence provide a realistic platform for such alternative position. If Carrie was incapable of consenting it is because she was unconscious – "like asleep", in her words.
86As earlier noted, s. 273.1(2)(b) of the Code directs that "no consent [to sexual activity] is obtained … where the complainant is incapable of consenting to the activity". If, in reality, Carrie was unconscious, she was incapable, in fact and law, of consenting. The offence of sexual assault is then made out. Although hardly peculiar to this case, the difficulty facing the prosecution is that the only evidence of Carrie's incapacity at the relevant time is her own testimony as to her unconscious state. Unlike similar scenarios summarized in a number of other judgements, there is here no independent evidence, physical or testimonial, direct or circumstantial, of the complainant's unconsciousness: no readings of her blood-alcohol concentration; no forensic analysis regarding the presence of drugs in her system; no sexual assault kit report; no CCTV recordings or confirmatory evidence from third-parties as to her demeanour or behaviour during the event in question or directly before or after.
87Troy certainly testified to Carrie's troubling consumption of alcohol and her uncharacteristic amorousness several hours before the incident. However, his evidence is that she was conscious, rational, and coherent – and, of course, ardently consented to his advances – by the time, several hours later, they engaged in sexual intercourse. Said clearly, Carrie's testimony affords the sole evidentiary plank in support for her claim of unconsciousness and, thus, the absence of consent essential to the Crown's case.
88The Crown's challenge is not unique. Molloy J. addressed it in her introductory and conclusory remarks in R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at paras. 11-12 and 198-199:
[There are aspects of sexual assault cases that can make the application of the [proof beyond reasonable doubt] standard a difficult one.
… the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. …
It is possible to make a finding of sexual assault based solely on the uncorroborated evidence of one witness, usually the complainant. Indeed, it is typically the case that there will be no other witnesses, and often the case that there will be no corroboration on the material points. However, where there are frailties in the complainant's evidence … it is useful to look for corroboration. …
I return to the fundamental legal principles … The question is whether I am satisfied beyond a reasonable doubt that the Crown has discharged its onus of proving that the complainant did not consent to the sexual activity at issue or that she lacked the capacity to do so. That depends entirely on the reliability and credibility of the complainant …
89The defendant before me is charged with sexual assault. I am not adjudging his dating etiquette, sexual predilections or moral character. My sole concern is whether the Crown has proven to the requisite standard that he had sexual intercourse with the complainant knowing or being reckless or indifferent to whether she did not consent or, put more specifically, then lacked the capacity to consent. Irrespective of the weight, if any, I ultimately assign the defendant's contrary testimony, I cannot find him guilty unless, as an analytical first step, I am adequately satisfied as to the credibility – that is, both the honesty and reliability – of the complainant's claim that she was unconscious, and thereby incapable of consenting, during the sexual act that bottoms the prosecution.
90The complainant's account is subject to misgivings. There are, inevitably, a number of inconsistencies between, on the one hand, portions of Carrie's prior statement to the police and her evidence in direct examination and, on the other hand, her evidence in cross-examination. There are also inconsistencies between her evidence under oath and the timeline and contents of some of her digital communication with Troy. The speed with which she responded to Troy's first message, her palpably strained explanation of both the scratches she caused to his neck and the selfies she left on his laptop, and her initial testimonial neglect of certain instances of drug use and consensual sexual activity afford some examples of these inconsistencies or omissions. None of these are individually fatal to acceptance of Carrie's account. I do, however, focus on two larger problems, each of which raises concerns not only with respect to the accuracy of Carrie's incriminatory narrative but also with respect to her general trustworthiness.
91The first, as alluded to earlier, pertains to what I conclude is Carrie's testimonial repackaging of her relationship with Troy as a fundamentally platonic friendship, punctuated by her having to rebuff or limit his unwelcome erotic advances. As already noted, my study of the hundreds of shared messages and Carrie's related concessions in cross-examination persuade me that this depiction misrepresents the true nature of their relationship.
92There is no doubt that Troy and Carrie had become close friends who displayed what I take to be genuine empathy and support for each other. And there were certainly occasions when Carrie retreated to or reasserted her platonic ideal. However, there were also occasions of sexual repartee and shared expressions of deep endearment and affection. Further, there were instances – such as the simulated fellatio selfies Carrie saved to Troy's computer – that were explicitly sexually provocative. And there was Carrie's admittedly consensual participation in sexual foreplay – including reciprocal oral sex and erogenous zone manipulation – that, I find, she largely withheld from the police and her testimony until extracted through persistent cross-examination.
93As earlier said, Troy and Carrie's flirtatious conduct and sexual trysts prior to the frat party do not directly impact on the question of consent that evening. However, Carrie's minimization of the intimacy and eroticization of their relationship in her police statement and direct examination raises general credibility concerns, as does her slow reveal and only reticent acknowledgments. Whether or not purposefully, Carrie recast her liaison with Troy in a manner that rendered the events of March 31st a grave breach of their relationship protocol and her own resolve and, accordingly, one that could not have occurred but for her being unconscious.
94Although I have struggled to discern why she thought it would be in his interest to do so, Carrie repeatedly claimed that she feared Troy would tell Conrad, their CAMH counselor, of their sexual relationship. She effectively conceded that describing the events of March 31st as "rape" mitigated her moral fault and thus the risk of expulsion from the CAMH group. This characterization also reduced the chance of rupturing her relationship with her boyfriend Darryl who, she had told the police, was opposed to her having sex with other men and who, she testified, would not equate rape with cheating. It may also have eased a sense of shame or guilt arising from what she might otherwise have read as her own complicity: as she testified at the close of her direct examination, "it couldn't have been my fault since I was unconscious". Each of these rationales for Carrie's historical revisionism is little more than conjecture, but each finds some resonance in evidence (primarily Carrie's) of the larger narrative. In the end, it matters not whether Carrie had reason or motivation to misremember or dissemble, or even whether she honestly subscribed to her self-serving characterization. What is of matter is that Carrie's testimonial recall of the tenor of her relationship with Troy is unreliable.
95The second source of concern respecting Carrie's credibility is more tangible, more troubling and far more direct. It derives from the patent inconsistency between her evidence and Andrew's as to the midday events at the frat house on April 1st.
96Carrie testified that, on waking, she dressed and promptly left the frat house. When put to her in cross-examination, she expressly denied that, before leaving, she first hung out in the downstairs common areas, helped clean up after the party, and had breakfast with Troy. She was afraid. She was repulsed. She wanted to get out.
97Andrew's recollection is very different. Like Troy's account (with which it is essentially consistent), Andrew's evidence is directly contrary to Carrie's. He recalled that Carrie and Troy came downstairs together. They both helped him reinstall the dining room tables. Troy then cooked a breakfast that he and Carrie ate together. He observed them for about 45 minutes. They appeared happy in each other's company. There were no signs of friction, anxiety or discomfort.
98Crown counsel rightly acknowledges that Andrew is an honest and reliable witness. She does not challenge his recall of Carrie and Troy's activities in the common areas of the frat house on April 1st. The problem with Andrew's evidence, she says, is that he did not know Carrie well enough, and was thus unqualified, to comment on her demeanour.
99It is not uncommon for the prosecution to lead evidence (often through tapes of 911 calls or from first responders) respecting a sexual assault complainant's demeanour in the wake of an alleged assault so as to invite an inference of consistency between the complaint and the complainant's near-concurrent appearance, deportment and character – or, at least, to repel any contrary suggestion. Here, the demeanour evidence, as tendered through Andrew, is facially inconsistent with Carrie's testimony as to both her alleged victimization and the fear and revulsion she says caused her to quickly leave the frat house.
100Although not framed as such, Crown counsel's point is that Andrew's comments as to Carrie's demeanour amount, in effect, to untrustworthy or probatively worthless opinion evidence. She takes no issue with the accuracy of Andrew's physical observations. She submits, however, his unfamiliarity with her renders unreliable the inferences he draws as to Carrie's mood or disposition. With respect, I do not share Crown counsel's concerns. I am also of the view that the impact of Andrew's evidence on the assessment of Carrie's credibility extends beyond any expression of opinion as to her demeanour.
101Evidence as to others' presentation-of-self, mood, emotional status and disposition are commonplace. As confirmed by a unanimous Supreme Court in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 835, "the emotional state of a person— e.g. whether distressed, angry, aggressive, affectionate or depressed" is routinely and rightly adduced in criminal proceedings. "If", as said at p. 838, "an accused is to be denied the right call" such evidence, "the cause of justice would suffer". Of course, as the Court continued,
The weight of the evidence is entirely a matter for the judge or judge and jury. The value of opinion will depend on the view the court takes in all the circumstances.
Crown counsel does not suggest that Andrew's opinion as to Carrie's demeanour is inadmissible. Rather, she invites me to assign very little if any probative value to this evidence.
102There is always a risk that a witness may misread another's temperament where, for example, facial or verbal expressions are ambiguous, or where the subject of the inquiry is a stranger or linguistically or culturally distinct, or where the observational window is narrow or the observer distracted or otherwise disoriented. Such cautionary circumstances do not obtain here. Andrew was not unfamiliar with Carrie. She was not a personal friend, but Andrew had met her at the frat house, and in Troy's company, on prior occasions – sufficient exposure to allow him, in response to Crown counsel's questions, to describe without further challenge her personality and her conduct in social situations. Carrie was in Andrew's close company for some 45 minutes on April 1st, at least some of which involved activities in which he, Carrie and Troy were all physically engaged.
103I accept Andrew's evidence not only of his observations of Carrie's conduct in the common areas of the frat house on April 1st but, as well, his account of her demeanour. She and Troy were content in each other's company. There was no indication of any underlying tension or of Carrie's mood being anything but cheerful. Indeed, she was laughing as she laboured under the weight of the heavy tables. Her disposition, in short, appeared inconsistent with that of a woman who, on her evidence, had just accused a man of sexually assaulting her while she was unconscious, was both afraid of him and extremely upset as a result, and could hardly wait to leave the premises. There is no evidentiary basis to reconcile – to "splice together" (as put in R. v. Davis, supra, at para. 85) – Carrie's actual disposition and social presentation, as reliably chronicled by Andrew, with her account of the emotional response she experienced to the sexual misconduct she described.
104To be very clear, my assessment of Carrie's credibility is not dependent on Andrew's demeanour evidence. His testimony directly contradicts Carrie's own recall of her conduct on April 1st and, in particular, her express denials that she hung out at the frat house, helped clean up after the party and had breakfast with Troy. Other than fabrication, a completely faulty memory or, perhaps relatedly, a profound state of denial, there is no basis to otherwise explain Carrie's misrepresentation of what truly occurred at the frat house on April 1st. Andrew said nothing to even suggest that Carrie appeared intoxicated or hung-over or that she otherwise exhibited the effects of a night of heavy drinking. And on Carrie's own evidence, she was lucid and sober when she left the frat house.
105In short, the accounts tendered through Andrew and Carrie cannot both be true. Andrew was a credible witness. I fully accept his evidence. Carrie's recall is then inescapably erroneous. She either knowingly misled the court or presents as a woefully unreliable witness with respect to the one facet of the extended transaction for which there is not only independent evidence but evidence that is both direct and trustworthy. Carrie's behaviour and demeanour on April 1st, as described by Andrew, are inconsistent with both her testimony as to the midday events and, if inferentially, her account of the nature of and her attitude toward the preceding incident in Troy's bedroom. Further, her testimonial claim to having been in a blacked-out state is compromised by what I find is her false but no less forceful assertion that she reliably recalls the events before leaving the frat house on April 1st.
106I am troubled by Carrie's testimonial reconstruction of the tenor of her relationship with Troy. It reflects a lack of candour or self-serving revisionism. Either way, it negatively impacts on my assessment of her general credibility and, in particular, the reliability of her account of the impugned sexual activity. Even more disconcerting is the direct contradiction between Carrie's evidence and that tendered through Andrew as to the events that occurred before she left the frat house that same morning of April 1st. I trust Andrew's account. As a result, my faith in Carrie's general trustworthiness is impaired. I cannot repose the requisite confidence in Carrie's evidence to conclude that the Crown has discharged its heavy burden.
107The prosecution's case hinges on adequate proof of the actus reus – that Carrie did not consent to having sexual intercourse with Troy. In the end, I harbour reasonable doubt as to Carrie's claim that she was unconscious at the time they had sexual intercourse and was thus incapable of consenting. To be clear, I do not entirely believe Troy's exculpatory account when read in the totality of the evidence. However, combined with my unqualified acceptance of Andrew's testimony, I am left in doubt as the complainant's allegation. In the language of the Supreme Court in Davis, supra, "[i]f the accused is believed, or if there is a reasonable doubt as to the complainant's version of events, there is no actus reus" (emphasis added). As a result, the single charge faced by the defendant is dismissed.
D. CONCLUSION
108Consistent with these reasons, I find the defendant not guilty.
109There are no gradations of culpability, no shades of grey, in Canadian criminal law. A finding of "not guilty" legally equates to factual innocence. This verdict vindicates the criminal process and the fundamental tenets of our law. It is not an affirmative exoneration of the defendant. It does not necessarily represent a repudiation of the complainant's account. Rather, it reflects the inevitable result of the Crown's failure to crest the high hurdle – that of proof beyond reasonable doubt – required to anchor a finding of guilt in a criminal proceeding. This high threshold safeguards the presumption of innocence and, to the degree reasonably possible, minimizes the risk that persons are mistakenly found guilty of crimes they did not commit.
Verdict rendered on September 21, 2018
Reasons released on December 21, 2018
Justice Melvyn Green