WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Between:
His Majesty the King
— AND —
R.P.
Before: Justice J.R. Richardson
Heard on: June 23, 25, 30, 2025
Reasons for Judgment released on: August 13, 2025
Counsel:
- Mariah Calamai — Counsel for the Crown
- Matthew Wolfson and Jayme Newton — Counsel for the Defendant
Introduction
1It is a fact of life in modern Canadian society that two adults will meet and consent to having sexual relations within hours or minutes of meeting.
2The Canadian law of communicated consent and honest but mistaken belief in communicated consent has the breadth and depth to deal with relationships of any duration -- from quick, chance encounters, such as is in play here, to long-term relationships that are measured over the span of years or even decades.
3This case is the story of one quick, chance encounter and whether the sexual touching that ultimately took place was consensual or not.
4On July 24, 2024 four people met at a bar in Deep River. ST and her friend CP went to hang out and have some fun. RP and his friend and co-worker CM were in town for work. They, along with a couple of co-workers, also went to the bar after work to socialize and have some fun.
5Soon after ST and CP arrived at the bar, all four played some pool while consuming one or two drinks. Unfortunately, the bar was scheduled to close early. RP had some marihuana at his hotel room which he agreed to share with the others after the bar closed.
6As the evening went on, the four people "paired up". RP and ST focused on each other. CM and CP also focused on each other. They were together in the sense that all four parties remained in each other's presence for virtually all evening. They were separate in the sense that each couple was not really paying much attention to what the other couple was doing or what they were discussing.
7After they consumed some marihuana outside RP and CM's motel, the parties returned to the room to continue to talk and get to know one another.
8Suddenly, RP pushed ST down on his bed and pulled off her pants.
9When CP realized what was happening, she discontinued her conversation with CM, focused on ST, assisted ST in getting dressed, and the two women departed the motel room.
10Police were called. RP is now charged with sexual assault.
11RP says that ST consented to the removal of her pants. ST says that she did not.
12The Crown proceeded summarily.
13This case turns on the assessment of the credibility and reliability of the witnesses and the application of the legal principles established in the case of R. v. W.(D.), [1991] 1 S.C.R. 742.
14Date, identity and jurisdiction were admitted.
15For the reasons that follow, I find the accused guilty as charged.
Facts That Are Not (or Not Really or Should Not Really Be) in Dispute
Background of the Parties
16Despite the length of time that this trial took, most of the facts with respect to what happened leading up to the removal of ST's pants are not in dispute. There are some minor differences on some details.
17ST is twenty years old. She has a community college diploma as a Behavioural Science Technician. She is starting another program at another community college in September.
18When the alleged incident took place, ST had a boyfriend, who was not present.
19CP is 22 years of age, and she is attending a university program.
20ST and CP met when they were in high school. They have been friends ever since. They were both home in Deep River.
21RP is 28 years old. He works for a contractor that installs cabling for telecommunication companies. He is currently working on a long-term project in Deep River. They work in Deep River for five days and then return home for weekends. The date of the incident was their second day on the Deep River project.
22CM is 27 years of age. He has worked for the same company for about five years.
23CM and RP have worked together for two and a half to three years. They have a close relationship and have been friends since they were young. CM helped RP get his job with the company.
24When the incident happened, CM and RP were staying in the same motel room.
What Happened before they Met at the Bar
25CP came over to ST's house a couple of hours before they went to the bar. They consumed some vodka and Mike's coolers. ST estimated that they had four drinks. ST felt "a little bit tipsy" before they went to the bar. She explained that a "little bit tipsy" meant that she was enjoying herself more and feeling less stressed. She agreed that her speech was probably slower. She disagreed that her movement would have been impaired. "I am a drinker", she said. She admitted to consuming a mickey of alcohol every other day at this point in her life. She stated that she actually consumed less on the night in question than she normally does.
26ST did not believe that she consumed any drugs before she went to the bar. She acknowledged that she had a marihuana pen which she could have used. She stated, however, that at that point in her life, she was drinking more and using marihuana less.
27ST recalled that CP drank about the same amount as she did. She did not notice any signs that CP was intoxicated.
28In cross-examination, ST denied that she and CP were "pre-gaming".[1]
29CP's mom drove them to the bar. They arrived at about 10 pm.
30CP stated that she and ST consumed three or four shots of liquor and a cooler before going to the bar. They also shared a 10 mg THC drink.
31CP described herself as "a little tipsy but not drunk". She did not notice any changes to ST's speech or coordination, nor did she notice any changes to her own. CP recalled consuming one cocktail at the bar – probably a Vodka/Cranberry – that ST purchased. She did not notice any changes in her sobriety or ST's as a result of consuming the cocktail.
32CM stated that he went to the bar with RP, his foreman, RH, and another member of their crew, BB. CP consumed a beer or two at dinner. When asked about RP's consumption, CM stated that he "probably" had one at dinner. When probed about the drinking, he could not remember whether he had one at dinner or at a barbeque back at their motel room.
33CM could not recall what time they arrived at the bar. He remembered that they played pool and consumed another beer. He estimated that he had between five and six alcoholic beverages between supper and the end of the night.
34RP stated that when they finished work, they returned to their motel. He waited to see what the other guys on the crew were going to be doing. Ultimately, he grabbed a pizza and had dinner alone. He did not have anything to drink at dinner.
35RP probably smoked some marihuana after work. He smokes every day.
What Happened at the Bar
36RP met with the other guys, who he identified as BB, RH and CM, at the bar at about 7:00 or 8:00. There he had a couple of drinks and played pool. He stated that he had four drinks in total while he was at the bar. Two were beer and two others were sweet liquor drinks.
37RP remembered seeing ST and CP arrive at the bar, probably after 10:00 pm. The foreman, RH, went up to meet ST and CP and he introduced ST and CP to the others. RP bought a shot for ST and one for himself. CM bought a shot for CP and one for himself.[2] They started to socialize and play pool.
38RH and BB ultimately left early. RH got "cut off" by the bartender because he went outside with a beer. RP estimated that this happened about 45 minutes to an hour after ST and CP arrived.
39The bar was small. It was not busy. There might have been a band playing. It was scheduled to close at 11 pm.
40As the evening unfolded, RP and ST chatted about school and work. They exchanged information about their ages. One of his friends was CM.[3]
41At one point, they left the bar for a smoke (vape) break.[4] RP and his friends said that they were staying at a nearby motel and RP, ST, CM and CP made plans to go back there when the bar closed. The motel was only a two-minute walk from the bar. RP had some marihuana at the bar that they could share. After the smoke break, they returned to the bar. RH and BB left after BB was told to leave because he took some alcohol outside the bar.
The Parties Head to the Motel
42At the end of the night, the four went to RP and CM's motel.
43ST and RP walked together. CP and CM walked together about three feet behind ST and RP. ST recalled that she and RP engaged in conversation, but she could not recall what the conversation was about. She also recalled telling RP, "Don't do anything weird". She recalled that he asked her why she would say that, and he was "stunned". She told him that it was a joke. She said, "I just met you". When asked in Court why she said that, she stated that she "just felt that I needed to say it."
44As they walked, RP had his arm around ST's waist. "I allowed that", she said. She recalled that the "don't do anything weird" comment was made after he had his arm around her. He did not remove his arm after she made the comment.
45ST did not tell him that she had a boyfriend.
46CP recalled thinking that it was "fine" to go to the motel room with ST, RP and CM. She thought, "What can happen in Deep River?" She opined that Deep River is a safe town and "nothing normally happens here".
47ST agreed that it was drizzling on the night in question. She disagreed that her pants were wet from sitting outside in that weather. CP said it was not raining. CM said it was wet, but he could not recall whether it was raining.
48When they arrived at the motel, they went directly to Room 101 which was the room that RP was sharing with CM.
49The room was a typical motel room with two double beds. There was liquor and marihuana on the table. Next to RP's bed, was the bathroom. Unlike typical motel rooms where the bathroom opens into a hallway, in this case, the bathroom opened adjacent to one of the beds.
50Once there, ST had a little bit of liquor which she mixed with Pepsi.[5] She made the drink herself. RP had a drink of the same concoction. ST probably had a piece of RP's left-over pizza. CP did not consume any of the pizza because she is a vegetarian. She ate some chips instead.
51CP recalled consuming a drink which was a mixture of Gatorade and liquor. The drink was mixed by either RP or CM.
52CM recalled mixing a rum and coke each for himself and CP. He stated that ST took his drink so he switched to drinking beer.
53All four parties were in the room. ST recalled that she and RP were standing or sitting on the corner of RP's bed. CP and CM were standing next to the window. Each couple was involved in their own conversation.
54CP recalled that, although the parties were essentially paired up, she was able to converse with everyone and hear their conversations. That said, she was not really listening to ST and RP's conversation because she was focused on her conversation with CM.
55After about five or ten minutes, all four went outside to smoke a joint. ST and RP recalled that it was ST's idea to consume the marihuana. CM recalled that RP rolled the joint before they left. ST recalled consuming "two puffs". They sat on a ledge or raised flower bed next to the sign for the motel.
56RP testified that the ledge was wet and his pants got wet from sitting on it.
57With respect to her general level of intoxication at that point, ST stated that she was "feeling good" and "definitely intoxicated". She did not, however, notice whether she had lost any coordination or problems with her memory. She described her situation as "mellow" and "cross".[6]
58RP did not believe anyone was intoxicated.
59CM stated that he had a buzz but was still in his "right state of mind". He did not perceive anyone else to be intoxicated. The marihuana made him feel relaxed.
60As they sat outside, ST's and RP's legs were touching. He also continued his earlier practice of putting his arm around ST's waist. She recalled that his hand was moving in a rubbing motion after about two minutes. As she indicated before, she did not care that his arm was around her waist and she "let it happen". At one point, however, ST removed his arm. She stated that he did not say anything when she removed it.
61CP and CM did not observe RP and ST touching. CP recalled thinking, however, that it was "weird" that ST and RP were "almost touching" because they didn't know them, and ST had a boyfriend. She kept this thought to herself. CP testified that she felt "more relaxed" after consuming the joint. She was not sure if there was any change to ST's demeanour. RP said that he was ready to go to bed. CP could not remember whether anything was said in response to this announcement.
62After about five minutes, the four individuals went inside.
63RP and ST arrived at the motel room first with CP and CM bringing up the rear.
64ST testified that when they returned to the motel room, RP went to use the bathroom. ST stated that she had to use the bathroom very badly and she went in. She was not aware that RP was in the bathroom before she went in. When she went in, she observed RP standing up, presumably urinating. She waited for him to finish and then she used the bathroom. ST closed the door after he left. Nothing else occurred while they were in the bathroom. No words were exchanged.
65RP essentially gave the same evidence with respect to the encounter in the bathroom.
66CP recalled that while ST was using the bathroom, RP went to his bed and got in. He did not remove any clothing.
67After using the bathroom, ST sat on the edge of RP's bed. She noticed that CP and CM were still talking and things between them appeared to be "going well". From ST's perspective, she was waiting to leave. She recalled saying, "We'll leave soon". CP told her, "OK".
68CP recalled seeing ST go into the bathroom while RP was using it. She believed that ST was "really embarrassed but she really needed to pee." CP recalled that once RP left the washroom, the door was closed while ST used it.
69CM stated that by the time he got back to the motel room with CP, ST was using the washroom. RP was rolling a joint. He did not see ST go into the washroom while RP was in there.
70In cross-examination, defence counsel showed CM his statement to the police where he indicated that he remembered ST going into the washroom at the same time as RP. He agreed that this was accurate but stated that they were not in the washroom at the same time for very long.
71He resumed chatting with CP. They sat on the bed with their backs against the headboard. He then stated that, "We were facing each other, I would imagine." He then corrected himself and said, "…I would say."
72In re-examination, CP agreed that what he said in his statement and what he said in Court about observing ST and RP in the washroom at the same time was inconsistent. He stated that he thought he was sure when he testified in-chief but he realized that he had forgotten what he said in his statement.
73RP recalled that when he exited the bathroom (and ST went in), CP and CM were coming in from outside.
RP's Evidence About His Sense of How He and ST were Getting Along
74RP recalled that as they went back to the motel room, he thought he and ST were "hitting it off pretty good."
75He further recalled that when they were outside sharing the joint, the "vibe" was good. He remembered that his legs and ST's legs were touching. He described ST as "pretty friendly" and stated that "she didn't seem to be disinterested." He believed that she had plenty of opportunities to leave if she was uncomfortable. He thought that ST was interested in him.
Evidence with Respect to the Removal of ST's Pants
76While ST was sitting on the edge of RP's bed, RP started to take his shirt off. She asked him why he was taking his shirt off and RP told her that he was getting ready for bed. ST told him not to remove his pants when she noticed that he was about to do so.
77In cross-examination, ST agreed that she did not tell the police in her statement that she told RP not to remove his pants.
78CP did not hear this conversation.
79CM stated then when RP came out of the bathroom, he announced that he intended to take his pants off because they were wet. At this point CM turned and completely faced CP for privacy. He agreed with defence counsel that CM thought RP and ST were "about to hook up". CM then got a bit closer to CP.
80CM testified that he could not remember whether he saw RP remove his shirt. He was given an opportunity to refresh his memory with his statement and he stated that he did not recall RP's shirt coming off.
81When asked if he removed his shirt, RP stated, "I don't think so". He testified that he told ST that his pants were wet from outside, and he was going to take them off. He asked her if it was okay for him to do so. She said, "Yes".
82At this point, ST saw RP come from his position near the head of the bed to where she was sitting on the edge. She described his new position as in front of her. RP then pushed her down on the bed with both hands and started to remove her pants.
83CP testified that she observed essentially the same thing.
84In cross-examination, ST agreed that, owing to her intoxication, she was wobbly so it was easier for RP to push her down.
85She stated that when he pulled her pants down, he removed her pants and underwear at the same time. She recalled that her butt was on the edge of the bed and her head was on his pillow. Her feet were hanging off the bed.
86ST stated that at no time before this did RP say anything to her.
87Nor did she say anything to him.
88ST described her pants as cargo style. They were fastened with a zipper, a button and a tie. RP did not attempt to undo them as he "yanked" them off. She recalled that it took "hard pressure" for him to pull them off. He was successful in pulling her pants (and her underwear) down. She was not wearing any shoes.
89In cross-examination, ST agreed that she told the police that RP untied her pants before removing them.
90ST recalled not being aware of what was happening. She did not tense up and she just lay there. She said that it happened "really fast".
91ST stated that she felt his hands near her "cooter"[7] and he was "like feeling me up" by going up and down her legs and feeling her waist area. She stated that he was "hovering". She could not remember whether he was using one hand or two. She said his head was close to her body.
92In cross-examination, ST stated that she did not tell the police that RP's hand was near her vagina.
93RP stated that after ST said it was ok to remove his pants, he started to remove hers. RP stated that he asked ST if he could remove her pants because "we were having a good connection." and he "figured it was the next step". When defence counsel suggested, "Some people might say kissing is the next step?", RP replied, "I can see that argument".
94When asked what it was about the interaction with ST that made him believe that they were having a good connection, he stated that ST did not do anything specific. It was just the way they were acting or talking. He repeated that they were "hitting it off pretty well" and added, "If I was being a creep she didn't have to be in the room." He said that ST was "kind of smiling" when he asked her to remove her pants.
95When ST was asked if she was "smiling" when RP removed her pants, ST stated, "I don't know. I wasn't looking at his face."
96RP denied that ST's pants were particularly difficult to remove. He described them as "jogger" type pants. There was nothing to unbutton, untie or unzip. He recalled seeing her pink lace underwear.
97RP also stated that ST lay on her back voluntarily. He did not push her.
98At this point, CP screamed at RP to get off. CP assisted ST to get up and she assisted ST with putting her pants back on. ST recalled that CP was "furious" and she yelled at RP, "What are you doing to her?" ST stated that her body was "shaky" and she was "scared. I was just freaking out kind of."
99CP did not recall seeing RP push ST down. CP recalled observing what was going on and getting up and saying, "What the fuck are you doing?" RP did not reply. She described ST as "kind of just frozen". She looked at ST and asked, "What is going on?" She recalled saying to ST, "You said you want to go. Let's go."
100CP recalled that her reaction was immediate. She did not expect to see anyone engage in a "sex act".
101CM recalled seeing ST on her back with RP removing her pants. He did not see how that came about because he was focused on conversing with CP. He corrected himself and said that he did not actually see RP removing her pants, but he did see that ST's pants were down. RP was, however, "right there".
102CM recalled that CP pushed him out of the way. He recalled that ST was wearing pink underwear. In re-examination, he did not remember anything else about ST's outfit.
103CM recalled looking at ST and she "looked shocked, like she did something wrong." Despite giving this opinion, he could not give any detailed observations about the expression on ST's face.
104CM recalled that RP was standing up because CP got mad and said something. He could not recall what she said. He recalled that CP pushed him out of the way.
105CM stated that he saw ST's pants on the floor. He then corrected his evidence to indicate that ST's pants were just past her knee. He denied seeing ST's vagina. When asked, he stated that ST's underwear were "still up".
106CM stated that he did not hear RP say anything to ST. He repeated that he was focused on CP. When asked what he meant by being focused on CP, he stated that he was chatting with her. When asked if he had intentions to do anything with CP, he stated, "Maybe at some point. I wanted to get to know her." When asked if he was hoping for an "intimate reaction", he said, "No". In cross-examination, he stated that he did not hear RP say he was going to remove ST's pants or whether ST made any comment in response. In re-examination, despite his evidence that he was very focused on the conversation with CP, he insisted that he heard RP announce that he was removing his pants.
107Despite this, later in his evidence, CM stated that when he saw ST's pants down, he thought, "What's going on?" The two girls came back to the hotel room. I thought that there was going to be some intimacy. He denied thinking that all four of them would be intimate. When asked if he was willing to watch the others get intimate, he stated, "I guess." He added, "My feeling now is not to be there."
108RP stated that CM and CP were laying on the bed and CM's back was to him. He could not hear what they were talking about.
109RP recalled that when CP yelled at him and interrupted him in the removal of ST's pants, ST's pants were down to her thighs. He stated that CP appeared to be "furious". He asked ST if it was okay and ST had no reaction. He said that ST appeared "shocked". He described her as "almost like a deer in the headlights." He denied that she was crying.
110ST stated that RP looked scared. He went to bed and put the covers over his face and made a "squinty grossed-out look" with his face. CP recalled that RP went to bed and closed his eyes. CM could not remember what RP did.
111In cross-examination, ST agreed that RP told her he was "sorry" but she did not tell the police this in her statement. She also agreed that RP told CP that "she wanted it."
112When asked about RP saying "sorry" in re-examination, ST stated that she distinctly remembered it and it came up, after, when RP and CP were "bickering" about what happened. She believed that RP was directing the apology at everyone because he did not look at her when he said it.
113RP stated that when he was removing ST's pants, CP stated "Stop, stop, stop. What are you doing?" RP then put his hands up. He said he "felt pretty small". He then said, "Sorry, sorry, sorry."
114It took a few minutes to get ST's pants back on. She was "tipsy", "stumbling" and she was crying too. Immediately after they got ST's pants back on, they left. In cross-examination, ST agreed that she told the police that she pulled her pants up herself. Although, after looking at her statement, she agreed that this is what she said, she did not remember actually telling the police this.
115In Court, CP could not recall whether she helped ST pull up her pants. When her memory was refreshed with her statement by defence counsel, she agreed that she told the police that she helped ST with her pants and this was accurate.
116CP told RP, "You're fucked". CM said, "What the fuck?"
117CM testified that "within seconds" CP and ST left. RP said that they left "immediately".
118In cross-examination, ST testified that she told the police that she should not have let RP touch her. She agreed that she did not voice any objection to what was going on. She agreed that she would not have said anything if CP was not there. "I was scared", she said. When asked if she was "embarrassed", ST stated that she was "humiliated." She agreed that she later apologized to CP.
119ST also agreed that she thought she had provoked what happened and felt ashamed. She disagreed that she felt ashamed because she had a boyfriend. She said that she felt ashamed because "my ass and my vagina was in front of two people I didn't know."
ST's and CP's Actions After the Incident
120As ST and CP left the motel, ST was crying. They tried to call their parents. They also tried to call CP's brother. Then they walked home.
121ST recalled wondering, "Did I say something?" and "Did I do something?" CP consoled her and did "what friends do."
122In cross-examination, ST agreed that she later told the police, "I don't know what I did for him to do that to me. I didn't say anything to make him do that." Defence counsel then suggested that ST told the police that she could have said something to RP. ST replied, "I know for a fact that I didn't".
123CP recalled that ST was extremely embarrassed, hyperventilating and crying. CP was worried about her. She told ST not to be embarrassed and she was there for her. CP recalled that ST was embarrassed because she thought that CP saw her vagina. She told her not to be embarrassed. ST seemed to feel better after this.
124In cross-examination, CP recalled that ST apologized to her. ST also told her that she did not think that what happened was a sexual assault. CP told ST that, in her opinion, it was.
125During the walk home, ST called her boyfriend and told him what happened. She wanted to make sure that he heard about it from her first. In cross-examination, ST stated that she told her boyfriend because she wanted his support.
126CP recalled that they did not go directly to ST's house. They stopped at her house where CP grabbed a pillow. They then went to ST's house. CP encouraged ST to talk to her mother.
127CP recalled that when they arrived home, they spoke with ST's mother. Initially, ST did not want to speak to her mom because she felt ashamed. CP insisted that she do so. CP told her that what happened "wasn't ok" and that someone else needs to know. CP was also "pretty upset" about it and wanted another support person for ST.
128As soon as they told ST's mother, her mother stated that they were going to the police station.
129Earlier, ST and CP discussed going to the police. CP wanted her to go. ST did not want to because she felt that she had provoked what happened.
130CP did not endorse this evidence when she testified. She stated that they did not discuss calling the police until after ST spoke with her mother. CP recalled that when ST's mother told them they were going to the police she thought it was the right choice.
131When they got to the police station, the police did not take statements right away. They told ST and CP to come back the next morning when they were "a bit more sober". Although ST felt that she would have had no difficulty accurately telling the police what happened, she agreed and went back the next day to give her statement.
132In cross-examination, ST stated that she was still feeling the effects of intoxication when she gave her statement to the police. She had a headache and felt overwhelmed. She did not know whether her state of sobriety could have compromised what she said to the police.
133ST stated that she has not discussed the case with CP. They only discussed how they were each feeling as a result of what happened. ST was aware that CP had spoken with CM on Snapchat.[8]
134ST stated that at no time prior to speaking with the police did she feel she had to change or modify her version of what took place out of fear that her boyfriend would be upset with her.
135In cross-examination, she disagreed with the suggestion that she went forward with the complaint to "save face" with her boyfriend and CP. She also disagreed with the suggestion that she consented to RP removing her pants but she could not tell her boyfriend or CP that. "That didn't happen", she said.
136She did not know if she would have gone to the police if her mother had not insisted.
137She disagreed that she told CP that she was sorry because she felt responsible for what RP did. She stated that she "felt bad that it happened because we were supposed to have a good night."
138She agreed that she was worried that she provoked RP and that it was somehow her fault.
139She agreed that when she spoke to the police, she told the officer that RP was "scary, weird and gross", and that he "looked pervy and had diseases." When asked if RP was too gross to go to a motel room with, ST stated, "I don't know." When asked if he was too gross to sit on his bed, ST stated, "I can sit on someone's bed!" She also agreed that he was not too gross to share a joint with or eat some of his pizza.
140ST disagreed that she saw the encounter as "something of a date."
141ST agreed that she referred to RP as "my guy" when she gave her statement to the police. She disagreed with the suggestion that she was trying to paint a picture that was worse than it actually was, either to the police or to the Court.
142Defence counsel asked CP if she was "on guard" on the night in question. CP said "No.". Defence counsel then asked her about her statement to the police where she said "I was always on my guard". CP stated that she shouldn't have used the word "always". She stated that she was partially on her guard. She agreed that she made judgments and jumped to conclusions about some of the men at the bar, including an "older guy"[9] who was there.
143When asked if she jumped to any conclusions about RP, CP stated, "Yes, I thought he was nice". She related that he told her that he was also from a small town. She described him as a "friendly person."
144CP disagreed that her loyalty to ST has affected how she remembered what she saw. She also testified that she felt guilty for limiting her association with ST and supporting her out of fear that these efforts would be misconstrued and interfere with the outcome of the case.
CM's and RP's Actions after the Incident
145CM stated that after ST and CP left, he and RP talked and wondered "What the hell is that?". He did not remember if they went outside for a cigarette. He denied calling anyone.
146RP stated that he and CM talked, and they were trying to figure out what happened. RP remembered staying up with CM and watching Cops on television. At least at one point, they went outside and had some cigarettes. The police came at about 3:00 am.
147CM stated that he did not think anyone was "overly drunk". Despite this, he agreed that he told the police that they could not take his statement because he was intoxicated. He stated that it was his belief that it was illegal for the police to take a person's statement when they are intoxicated. He agreed that he did not want to give a statement until he was completely sober.
Issues Raised During the Cross-examination and Re-examination of RP
148Cross-examination was not RP's finest hour.
149RP stated that nothing stood out about his conversation with ST that evening. He agreed that he would have remembered it if she said she liked him, asked for his number or if they discussed things to do at other times. He agreed that all he could remember was that she was nice to him.
150He agreed with Crown counsel that because ST was being friendly and nice to him, he thought that ST was "into" him. He stated, "I figured at least a little. If I was off-putting in some way, she would have left".
151He agreed that as the night unfolded, he was interested in what "might happen". He agreed that he was shocked when ST and CP left because what he thought was going to be an "awesome night turned out to be not so awesome".
152He agreed that prior to ST's pants being removed, she "never once" told him that she actually wanted that to happen. He stated, "I've been in very similar situations in the past where we didn't have a talk about hooking up but it eventually led to that." He agreed that this scenario involved someone other than ST.
153RP agreed that he was not contesting that he pulled down ST's pants. He agreed that the pants could have had a button or a zipper or a tie and he just didn't remember. Nor could he remember whether her pants were a tight fit. He stated that he could see ST's underwear after her pants were down.
154When asked how it was that he remembered the details of ST's underwear, RP stated, "That was the worst night of my life" and ST's underwear, which were pink, were "seared into" his mind.
155With respect to what he hoped would happen, RP stated, "I was hoping we would start kissing maybe and then get under the sheets." He wanted a little bit of privacy.
156He did not agree, however, that removing ST's pants required privacy or that it was too revealing to pull ST's pants down with CP and CM present. "I figured CP and CM were on the same page. I figured they were going to go down a similar path", he stated.
157He agreed that he did not have a conversation with CP and CM about whether they were "okay" with him proceeding in this fashion. He agreed that it did not occur to him that they might not be comfortable with what he was doing.
158The Crown suggested that he was so focused on getting ST into his bed that he had no regard for how CP or CM might feel about it. The following exchange took place:
RP: I'm just comfortable with my own body; I don't mind getting a little less clothes on. That doesn't bother me.
Crown: But you can understand it might bother someone else?
RP: I guess.
Crown: You guess? You think that everyone in the world wants to see you naked?
RP: I didn't say that.
Crown: Well, what are you saying?
RP: Some people might.
Crown: Some people might not, though?
RP: Yeah.
159He agreed that he was hoping to be intimate with ST. Crown counsel suggested that he was going to do "everything in your power to make that happen." He replied, "Until it made her uncomfortable. She had no issue with it. She didn't tell me that I couldn't do this. I didn't see any signs.". He agreed that he made these assumptions because she was being friendly, and she came back to the motel room.
160RP agreed that it did not cross his mind that she went to the motel room because she wanted to share the joint.
161With respect to ST's level of intoxication, RP stated that if he had heard her slurring her words or had seen her stumbling, he would have asked her if she was sure about what she was doing.
162With respect to his marihuana consumption, RP stated that he consumes 1.5 grams a day.
163The Crown asked him questions about his memory of the incident. To this, RP stated:
It is hard to remember all these details with something that happened in such a short span. I wouldn't call it trauma but pretty close to trauma for – hard to remember everything that happened on such a terrible night. I am trying to forget the worst night of my life. I think I just put my foot in my mouth. I am not entirely sure what I meant by that.
164RP agreed that he could not remember if ST's pants were still down when she got up. Nor could he remember if she put her shoes on. He agreed that he did not follow her and ask if she was okay. "I had already offended her enough", he stated.
165When asked why it crossed his mind that he had offended her, RP stated, "Because CP got up and called me the lowest". He stated that ST did not say anything that made him believe that he had done anything wrong. "It was all [CP]", he stated.
166The Crown suggested to RP that he did not care what ST thought. He stated, 'I did care but there was nothing I could do to remedy that situation. She was not in the mood to converse. If she wanted to talk, why didn't she say something right then and there?"
167When the Crown continued to pursue this line of questioning, RP stated that he was confusing ST's reaction with CP's. He could not explain how he was confusing them.
168RP agreed with the proposition that when looked at it from "the other side", he might have misjudged the situation. He also agreed with the proposition that just because ST was being nice to him, it did not mean that she wanted to have sex with him.
169He explained, "If I thought that if there was an issue with it, she would have stopped me. She would have said something."
170Crown counsel asked RP what his intention was after he pulled ST's pants down. He stated, "Hoping that it would have gotten somewhere further sexually maybe." Crown counsel asked, "Whatever the next thing was you were going to go ahead with it?" He agreed.
171Crown counsel then said, "As long as she didn't say "stop", you were going to rely on her silence?" He then disagreed.
172When asked why he asked ST if he could pull her pants down if he was not going to ask her to do anything else, he replied, "Human decency." Crown counsel then asked, "You weren't going to show human decency to do the next step?" RP replied, "Unless she said "no", "stop", in my mind, she was okay with what was going on."
173He disagreed with the Crown's suggestion that as long as ST did not say "no" or fight him off, he would proceed. "I was hoping it would have led to some kind of relations", he said. Crown counsel suggested, "You were just going to try to see?" RP replied, "Yes."
Re-Examination
174In re-examination RP essentially stated that ST consented to him removing her pants.
175Defence counsel asked RP what ST did to make him think that she was "interested." RP replied that when they were walking back from the bar, they were "paired off", that ST was right beside him being "chummy and friendly". He stated, "I figured that's got to mean something."
176With respect to where he was when he asked ST to take her pants off, RP stated that he was standing in the middle of the room when he said it.
177He stated he would not have proceeded further if ST had said that she did not want to, or if she had recoiled from him touching her. He agreed that he was going to keep going if she did not fight him. He stopped short of agreeing that he was going to keep going if she remained completely still and silent, or if he tried to kiss her and she did not kiss back.
Submissions and Analysis
178Defence counsel argued that the Crown had not proven the absence of consent.
179She maintained that RP was honest and straightforward and was unshaken in cross-examination. He ensured that he had ST's oral consent before proceeding. When there was the first sign of objection, he stopped. For reasons set out below, I reject these submissions.
180Defence counsel further argued that there were serious reliability issues in relation to ST, CP and CM, including:
a) The evidence with respect to the ingestion of alcohol and marihuana. ST and CP were drinking heavily. They drank before they went to the bar and after they were at the bar.
I accept that over the course of the night, ST and CP had approximately eight alcoholic beverages. ST also consumed one marihuana drink. ST and CP also shared a joint with RP and CM. I find that RP had four or five alcoholic drinks, and some marihuana which he ingested before going to the bar. I find that CM had between five and seven alcoholic drinks.
I find that ST and CP were, to use their word, "tipsy" and RP and CM were also intoxicated. The police did not want to take ST's and CP's statement until they were sober. CM did not want to give a statement until he was sober.
Despite the fact that all of the parties were intoxicated, they gave largely congruent evidence on everything but the issue of whether ST told RP not to remove his pants and whether RP asked ST if he could remove hers. This is not a case where, owing the consumption of alcohol or marihuana, there is vast disagreement as to what happened and when.
b) CP was acting to protect ST.
There was nothing about CP's actions which were inappropriate. She was protecting her friend, who she (correctly) surmised was frozen in the moment when RP removed her pants. CP probably prevented a grave interference with ST's sexual integrity.
There was nothing in the evidence that suggested to me that CP and ST had prepared a script for Court or that CP was attempting to mislead the Court. If anything, both ST and CP were upset that their relationship was curtailed out of fear that they would be accused of colluding.
CP was a good witness. She thought carefully about her answers before answering them. She was precise. Any inconsistencies in her statement were minor.
c) CP and ST's mother interfered and insisted ST contact the police. Defence counsel stated that this case was before the Court solely because of CP's immediate and extreme reaction to what happened.
I agree with the characterization that CP had an immediate and extreme reaction to what she saw. But what she saw – her friend being sexually assaulted right under her nose – was deserving of an immediate and extreme reaction.
I agree that ST's mother insisted that ST contact the police. I find that CP supported that decision. CP also made it clear that to ST that, in her opinion, what RP did was a sexual assault.
Neither were wrong. ST was frozen and incredulous with respect to what happened to her. The reaction of CP and ST's mother was not extreme. RP did something that he was not entitled to do. Whether ST, in that moment, or in the moments and hours immediately after the incident did not understand that what happened was criminal is immaterial. CP, and ST's mother, were not wrong.
d) ST had to make good on her story to save face with CP, her mother and her boyfriend.
I disagree. ST was an honest witness who did her best to tell the truth. To be sure, the fact that ST had a boyfriend, put her in an awkward position. She might have been afraid as to how things looked, but in the final analysis, she did nothing wrong.
Her "crime" was being nice to RP, sharing a couple of hours of conversation with him, allowing him to put his arm around her, allowing their legs to touch while they shared a joint, sharing a joint with him and sitting on his bed in his motel room, all in the presence of her friend and RP's friend, all while she had a boyfriend. None of this requires her to "save face". ST testified that she wanted her friend CP to have some fun. Things with CP and CM seemed to be "going well". Just before the incident, she was getting impatient and she made it clear to CP that they would go soon.
She wanted to call her boyfriend right away because she wanted his support.
I reject any suggestion that she made everything up or blew it out of proportion in order to save face with her boyfriend.
e) ST testified that she did not know if she had said something to make RP do that.
I agree with the Crown's submissions on this point, which I have discussed below.
The unequivocal evidence is that ST was completely shocked and surprised by what happened. She froze. She was unable to process it. When she started to process it, she was incredulous. Her evidence that she did not know if she had said or done something to make RP take off her pants was rhetorical and expressed out of utter disbelief with what had happened.
She knew she did nothing wrong. When she wondered if she had said something or done something to make RP sexually assault her, she was trying to figure out what would have made him do it because it did not make sense to her.
I find that there is nothing about this statement that reflects consent or leaves me in doubt as to whether ST consented.
f) ST testified that her police statement was affected by her hangover.
I have already commented on the level of intoxication of the parties. I am not surprised that ST was hungover when she spoke to the police. Except for the issue about RP touching near her vagina, the inconsistencies and omissions between her statement and her evidence in Court were minor and inconsequential.
g) ST could not recall RP's or CM's names.
Identity was admitted.
That said I am not at all surprised by the fact that ST did not remember RP's and CM's names. I find that this is also why she referred to RP in her statement as "my guy". She met them once and they spent -- at most -- two hours together.
If anything, the fact that ST does not remember their names reinforces how new the relationship was and how incumbent it was on RP to be extremely careful to ensure that ST was consenting.
h) ST was not sure if RP's pants were off.
This was an honest answer. She did not have to be sure. Her evidence was that she was frozen and surprised with respect to what happened to her.
i) In Court, ST said that she asked him not to remove his pants. There is nothing to that effect in her statement.
I agree that this is an inconsistency. However, I find that either on its own, or in concert with the other inconsistencies, this is not sufficient to raise a reasonable doubt as to the veracity of ST's evidence.
j) ST did not remember the taking of a photo as the four walked from the bar to the motel.
This is a minor omission. Nothing turns on it.
k) ST stated that she poured the drinks at the motel room. Everyone else stated that RP or CM made the drinks.
This is a minor disagreement in the evidence. Nothing turns on it.
l) No one indicated that they saw ST "naked".
CP testified that she did not see ST's vagina because she did not look. CM recalled seeing ST's pants down, but he was inconsistent about whether he saw them off or around her thighs. CM saw her underwear. RP recalled seeing her underwear.
ST testified that she needed CP's help to get her pants back up.
None of this helps me decide whether RP removed ST's pants with her communicated consent or with an honest but mistaken belief in her communicated consent.
The issue of whether anyone else saw ST "naked" does not help me assess her credibility and reliability one way or another.
m) ST stated that RP touched near her vagina. She did not mention that in her police statement.
I agree that this is a major inconsistency about a core allegation.
I accept the Crown's submission that ST was naïve. It may also be that this gap in her statement to the police is explained by the fact that she was hungover when she gave her statement.
While I have no doubt that RP removed ST's pants without her consent, based on this inconsistency, I do have a doubt that he went further and touched her near her vagina.
My finding of guilt relates only to the fact that he removed her pants without her consent.
n) ST displayed animus when she told the police that RP was "weird, gross, pervy" and "had diseases". The evidence suggests that she did not find him repulsive.
I find that this does not affect her credibility and reliability. It is clear that she did not find him repulsive as the night unfolded. However, it is not unusual for her to have expressed that opinion to police once what happened to her started to sink in.
Victims often express some animus towards those who abuse them. It is not unusual. The animus expressed here was relatively tame and it reflects ST's level of maturity and naiveté more than it reflects true animus against RP.
It does not leave me in doubt.
o) ST had a motive to fabricate. She called her boyfriend right away after the incident because she wanted to control the narrative.
See my comments above with respect to ST's decision to call her boyfriend. This does not leave me in doubt.
p) CP's evidence is influenced by loyalty to ST.
See my comments above with respect to CP's loyalty to ST. This does not leave me in doubt.
181Defence counsel suggested that ST regrets what happened, arguing that regret is not proof; nor is uncertainty; nor is embarrassment.
182I disagree. ST does not regret anything. Nor should she.
183I asked the Crown to make submissions on only two points raised by defence:
a) The inconsistency in ST's evidence about the touching of the vagina; and
b) ST's evidence that she wondered if there was something that she said that made RP behave that way.
184With respect to the first point, the Crown submitted that:
a) There was an inconsistency between ST's evidence in Court and what she said in her police statement.
b) ST's evidence about the vaginal touching came up the first time in her direct evidence. Her evidence on this point was that after pulling her pants down, RP started to "feel her up" and touch near her vagina.
c) RP was starting to do "something" when CP intervened.
d) The vaginal touching would have been the "next step", having regard to the fact that RP pulled down ST's pants and underwear. RP's evidence was clear that he intended to continue with a sexual encounter. In this way, ST's evidence is actually consistent with what RP said.
e) ST was not sophisticated enough to lie about this. As an example, the Crown reminded me that ST had difficulty calling her vagina by its proper name.
f) All the witnesses described the situation as unfolding very quickly.
g) This inconsistency is insufficient to reject ST's evidence on the issue of consent.
I have commented on this issue above. This issue does not leave me in doubt about the issue of consent to the removal of her pants.
I am, however, in doubt, on the issue of whether he touched her vaginal area and started to feel her up.
185With respect to the second point, the Crown submitted that:
a) ST's question as to whether she said something to make him do that was consistent with what she said in evidence.
b) ST was adamant in-chief and in cross that she did not want RP to undress her. She did not want to be undressed in front of her friend and a guy that her friend had just met. She was clear that she did not consent. She was confused and ashamed about what she could have done to make him believe that this was ok.
c) Crown counsel repeated her submissions about ST's sophistication. She also argued that ST was 19 and "a bit naive and immature."
d) ST's shame and embarrassment about the situation was further evidenced by the fact that she apologized to CP after, even though she had not done anything wrong.
e) Crown counsel maintained that when she said this, ST was not suggesting that she was consenting to what happened. She was confused and trying to figure out why RP would do this to her.
f) The pulling down of ST's pants was very invasive. It is clear that nothing else happened between them before that would have led to this.
I have commented on this issue above. There is nothing about ST trying to understand how RP could have possibly thought that she agreed to him removing her pants that leaves me in doubt.
The Legal Framework Against Which the Evidence in this Case is Applied
186As an accused person, RP is always presumed innocent until the state proves his guilt beyond a reasonable doubt.
187Only when the Crown proves that RP committed the elements of the offence charged beyond a reasonable doubt is the presumption of innocence overcome.
188A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
189To be satisfied of RP's guilt beyond a reasonable doubt, I have to be sure. If I am not sure, I must find RP not guilty.
190If I don't know who to believe, I must find RP not guilty. Even if I believe that RP probably committed the offence, that is not a sufficient basis on which to find him guilty. Probable guilt is not proof of guilt beyond a reasonable doubt.
191The appellate authorities set out the path I must follow in considering whether the Crown has established guilt beyond a reasonable doubt:
a) First, where the accused testifies and I believe him, I must find him not guilty.
b) Second, where the accused testifies and even though I do not believe him, I am left with a reasonable doubt by his evidence, I must find him not guilty.
c) Third, even if I do not believe the accused or am not left in doubt by his evidence, if I am left with a reasonable doubt on the basis of the other evidence I do accept, I must also find the accused not guilty.
Only if, at the end of this exercise, I am satisfied as to the guilt of the accused beyond a reasonable doubt, must I find him guilty.
192I cannot compare the accounts and decide guilt on the basis of which account I like better.
193In following this path, I rely on my experience, reason and common sense. I must not, however, engage in stereotypical or mythological reasoning which masquerades as "common sense".
194The evidence that is led before me is assessed by me on the basis of whether it is credible and reliable.
195A witness who is credible, is not necessarily reliable. A witness may be sincere and credible, but their evidence may also demonstrate that their recollections are not reliable.
196One way of determining whether a witness is credible and reliable is to gauge their evidence in Court against what they said on previous occasions, such as when they gave a statement to the police.
197Not every inconsistency, however, gives rise to the conclusion that a witness is unreliable. Some inconsistencies are important; others less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern.
198The same issue can arise where a witness "fills in the blanks" with respect to what took place. A witness may honestly and sincerely believe that a certain aspect of their evidence is true; analysis on the basis of logic, reason and common sense might suggest however, that what the witness says – as honest, sincere and credible as the witness may seem – is not reliable.
199Memories fade. They can also be faulty and frail. Sincere, honest and credible witnesses can simply be wrong or make assumptions about things because of the passage of time.
The Law with Respect to Sexual Assault
200In order to find RP guilty of sexual assault, I must be satisfied beyond a reasonable doubt that:
a) RP intentionally applied force to ST.
b) ST did not consent to the force that RP applied.
c) RP knew that ST did not consent to the force that he applied.
d) The force that RP applied took place in circumstances of a sexual nature.
201Appellate courts have given trial judges the following instructions in assessing the presence or absence of consent:
a) If the complainant expresses lack of agreement, there is no consent: section 273.1(d) and (e).
b) If the case involves a different interpretation of essentially the same events, trial judges should consider whether the complainant, in her mind, wanted the sexual touching to occur. Once she has asserted that she did not consent, the question is one of credibility. If the trial judge is satisfied beyond a reasonable doubt that she did not consent, the inquiry shifts to the accused's state of mind: R. v. Ewanchuk, (1999) 131 CCC (3d) 481 (SCC) at paragraph 61; R. v. G.F., 2021 SCC 20 at paragraph 29.
c) The subjective consent of the complainant can, however, be vitiated by certain conduct against the complainant which causes the complainant to submit or not resist. This conduct is set out in sections 265(3) and 273.1(2)(c) of the Criminal Code:
i) the application of force against the complainant or another person (265(3)(a));
ii) threats or fear of the application of force against the complainant or another person (265(3)(b));
iii) fraud (265(3)(c));
iv) the exercise of authority (265(3)(d)); or
v) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority (273.1(2)(c)).
If one of these factors exist, any consent that the complainant gave is said to be "vitiated". "Vitiated" means "of no force and effect.": R. v. G.F., supra, at paragraphs 34-36.
d) The accused may then establish that on the basis of her words and conduct, the complainant was consenting: R. v. Ewanchuk, supra, paragraph 63.
e) The accused's belief that the complainant was consenting cannot be reckless or willfully blind: R. v. Ewanchuk, supra, at paragraph 65.
f) Silence, passivity or ambiguous conduct is not consent: R. v. Ewanchuk, supra, at paragraph 51.
g) While it is open for a complainant to change her mind, the accused must 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 is a change of heart, 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: R. v. Ewanchuk, supra, at paragraph 52.
h) The complainant must agree to the specific sex act. Agreement to one form of penetration is not agreement to all forms of penetration. Agreement to sexual touching on one part of the body is not agreement to all sexual touching: R. v. Hutchinson, (2014) 308 CCC (3d) 413 (SCC) at paragraph 54. Consent must be specifically renewed and communicated for each sexual act. It is not possible to give "broad advance consent": R. v. Barton, [2019] SCC 33 at paragraph 118.
i) Section 273.1 of the Criminal Code requires that the accused must take reasonable steps, in circumstances known to him at the time, to ascertain that the complainant was consenting. The reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say "no". There is no catalogue of steps that constitute "reasonable steps". Silence, passivity or ambiguous conduct is not a reasonable step. The more invasive the sexual activity and/or the greater the risk posed to the health and safety of those involved, the greater care is necessary in ascertaining consent. Greater care is also necessary where the parties are unfamiliar with one another and there is the risk of miscommunication, misunderstanding and mistake: R. v. Barton, supra, at paragraphs 105 to 108.
j) Not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required to establish consent: R. v. Goldfinch, [2019] SCC 38 at paragraph 44.
k) When assessing the credibility of the complainant the court must be careful to not rely on impermissible myths and stereotypes under the guise of common sense and logic: R. v. ARJD, (2017), ABCA 237, aff'd (2018), SCC 8; R. v. Steele, (2021) ONCA 186.
Do I believe the accused?
202No.
203I do not believe RP's evidence that he asked ST to remove her pants before proceeding to do so. I do not believe him when he said that ST verbally consented.
204I find that RP mistook the fact that ST was friendly with him, spent an hour or two talking with him, allowed him to put his arm around her, allowed his leg to casually touch hers as they sat outside and shared a joint, and agreed to come back to his motel room as equivalent to her consent for him to proceed further.
205His evidence in cross-examination, where he essentially endorsed these beliefs, (and others) is sufficient for me to find that his complete misapprehension of the situation, not ST's direct verbal consent, caused him to sexually assault ST by removing her pants.
206None of those actions are tantamount to communicated consent on the part of ST, nor can they constitute an honest, but mistaken belief in communicated consent on RP's part. They are a distortion of what was actually going on.
Am I left in doubt by the evidence of the accused?
207No.
208As I set out, RP's evidence was steeped in myth and stereotype about the meaning of consent. Against this backdrop, I simply cannot accept the proposition that his evidence that ST verbally consented to the removal of her pants might be reasonably true.
209RP's evidence is, essentially, that because ST did not say "no" or did not leave, or did not recoil, he had a licence to experiment with her sexual integrity. If during one of those experiments, she said "no", then he understood that he had to stop. Unless she said "no", she was fair game to his experimentation. This ignores the admonishment from the Supreme Court of Canada that "not only does "no" mean "no", but only "yes" means "yes.""
210There was nothing about ST's conduct on the evening in question that communicated to RP that she wanted him to remove her pants:
a) A smile, being friendly, or seeming like she is "into him" is not consent to pull down her pants.
b) A couple of hours of conversation is not consent to pull down her pants.
c) Allowing him to put his arm around her as they walked back to the motel room is not consent to pull down her pants.
d) Sharing a joint, some drinks, or a piece of pizza is not consent to pull down her pants.
e) Allowing his leg to touch hers as they sat outside smoking a joint is not consent to pull down her pants.
f) Going back to his motel room (with two other people, one of whom she also just met), is not consent to pull down her pants.
g) Sitting on the edge of his bed is not consent to pull down her pants.
h) The combination of any or all of these factors is not consent to pull down her pants.
211These parties barely knew one another. RP had the duty to be very careful. He had to make sure that ST expressed her consent to pulling down her pants. This is not a situation where there is prior conduct or a prior long-standing relationship that helps inform the issue of what was consensual on the night in question.
212Consent can be expressed by words or actions. None of the actions attributed to ST, alone or together is sufficient to find that she communicated consent or that RP had an honest but mistaken belief in communicated consent.
213If RP wanted to remove ST's pants, it was incumbent on RP to make sure that she consented to do so. Anything less than that was reckless "testing of the waters".
214Based on his experience with another woman, which turned out to go as he hoped, RP thought that what he was doing was perfectly acceptable. It was not. It was a precipitous guess that ST would behave in the same manner. RP assumed that all women were open to sexual touching and only if they objected or left, was he required to stop.
215He assumed wrongly.
On the basis of the evidence I do accept, am I satisfied as to the guilt of the accused?
216Yes.
217For reasons I have expressed, except where I have indicated, I accept the evidence of ST and CP.
218I accept ST's evidence that she did not consent to RP pulling down her pants.
219I also accept her evidence that she told RP on their walk not to do "anything weird" and they discussed what she meant by that conversation. I accept her evidence that she told him, "I just met you." This was unchallenged.
220I do not believe the evidence of CM's account on key aspects of what transpired for the following reasons:
a) He was inconsistent in his evidence on whether he saw ST go to the bathroom while RP was using it.
b) He was imprecise in his evidence about how he was positioned with CP when the touching began. He said, "We were facing each other, I would imagine ". Then he corrected himself by saying, " I should say. "
c) He was inconsistent in his memory with respect to the removal of RP's shirt.
d) He was inconsistent on the issue of whether he saw RP removing ST's pants.
e) He was inconsistent on whether he saw ST's pants on the floor or just past her knee.
f) He was inconsistent about whether he intended to be intimate with CP.
g) He expressed the opinion that he believed that some intimacy was going to take place, without any detail as to why he had that opinion. He seems to have made the same error.
h) He expressed a willingness to watch RP and ST be intimate on the evening in question, even though he now realised that would not have been appropriate.
i) He did not think he, or anyone else, was "overly drunk" but he refused to give a statement to police because he was intoxicated.
221I found CM inconsistent, imprecise, glib and quick to give an answer before thinking. I cannot rely on much of what he said about the key aspects of the evidence.
Summary of Findings
222I do not believe RP and I am not left in doubt by his evidence.
223I believe ST and CP. Except where I have indicated, I find their evidence was credible and reliable.
224I do not believe CM, nor do I find his evidence reliable.
225I find that RP sexually assaulted ST by removing her pants without her communicated consent.
226I find that RP did not have an honest but mistaken belief in ST's communicated consent.
227I have a doubt as to whether RP touched ST's vaginal area after he removed her pants.
228He will be found guilty as charged.
Released: August 13, 2025
Signed: Justice J.R. Richardson
Footnotes
1I was advised that "pre-gaming" is slang for individuals who drink at home before going to licensed establishments. This is done, apparently, in order to consume more alcohol and "have a bigger buzz" and save money.
2A lot of time was consumed at trial discussing who bought drinks for whom and how many drinks were purchased. Nothing really turns on this. I ultimately find that the parties were mildly intoxicated as a result of the consumption of alcohol and/or marihuana which occurred before they attended the bar, while at the bar, at the motel room and during a break to smoke a joint at the motel room. In ST and CP's case, they consumed approximately eight alcoholic drinks over the course of the evening.
3Throughout her evidence ST referred to CM by "Cody" which his not his actual first name. I am satisfied that when she was referring to Cody, she was referring to CM. In cross-examination, ST agreed that she did not remember either RP's or CM's names.
4On CP's evidence, there may have been more than one smoke break. It does not matter. All of the parties were in agreement that they smoked or vaped tobacco. Up to this point, no marihuana was involved.
5From ST's evidence in Court and her statement to the police, there is disagreement as to whether she poured "whiskey and pepsi" or "rum and coke." Nothing turns on this. It is a distinction without a difference.
6I was advised that "cross" is slang used to describe the increased sense of euphoria that comes from mixing two different drugs, in this case alcohol and marihuana.
7ST stated that "cooter" was slang for "vagina".
8During ST's evidence in-chief, the parties asked me if an Application pursuant to section 278 of the Criminal Code was needed in order to introduce the Snapchat conversations. I was advised that CP had consented to the records being used, but CM had not. After reviewing the text of the conversations over a break, I stated that, firstly, since neither party intended to introduce the conversations in-chief or in cross of ST, ST's evidence should be completed. Secondly, in light of the fact that the Snapchat conversations contained some private discussions between CM and CP, I advised that in absence of consent from CM, we would have to proceed with a mid-trial section 278 application if the parties wished to introduce the conversations in evidence. At this point counsel opted not to proceed further. I advised them that the ruling was without prejudice to their right to revisit it, should they wish to do so in light of the evidence called or as part of an application under sections 9(1) or 9(2) of the Canada Evidence Act. The application was never renewed.
9There was some evidence that an older man, who is a well-known resident of Deep River, was at the bar that night. Nothing turns on this.