Court File and Appearances

Court File No.: CR-23-70000345
Date: 2025-02-05
Ontario Superior Court of Justice

Between:
His Majesty the King – and – Graham McLean

Appearances:

• Alexandra Rourke, for the Crown
• Scott Fenton, for Mr. McLean

Heard: January 13–14, 2025

Publication Ban:
Subject to any further order by a court of competent jurisdiction, an order pursuant to s. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

Justice: M. Sharma

I. Overview

[1] The defendant, Mr. McLean, is charged with one count of sexual assault contrary to s. 271 of the Criminal Code. The defendant had a judge-alone trial before me.

[2] The charge relates to a former acquaintance, KA, with whom he had previously socialized with others on multiple occasions. The alleged assault occurred on the evening of July 14, 2016 after the two spent an afternoon in the Kensington Market neighbourhood in Toronto.

[3] The complainant reported the allegation to the police on November 8, 2022.

[4] At trial, the Crown called the complainant. Mr. McLean testified in his own defence. There were no other witnesses.

II. Issue to Be Determined

[5] It is not disputed that the parties engaged in sexual intercourse on July 14, 2016. Therefore, two of the elements of the offence, namely (a) touching (b) of a sexual nature, have been established. The sole issue is whether the intercourse was without KA’s consent. Mr. McLean was not asserting a defence of mistaken belief in communicated consent.

[6] The Crown took the position that KA did not communicate consent. The Crown did not specifically argue a lack of capacity to consent, although evidence was led at trial that KA “blacked out” shortly after consuming a THC (cannabis) pill. Mr. McLean, on the other hand, argued that KA consented. His evidence was that KA was coherent throughout the evening.

III. Summary of Evidence

a. Background and Relationship

[7] Mr. McLean met KA in 2013 while attending a concert with a group of friends. Among them were two individuals by the name of Steve and Dillon. Later in 2013, KA started “seeing” Dillon. Dillon was friends with Mr. McLean.

[8] During KA’s relationship with Dillon, she regularly spent time with Mr. McLean when socializing with Dillon – as often as each month, including attending his home where Mr. McLean lived alone with his dog.

[9] KA’s relationship with Dillon ended in 2015. As a result, KA’s pattern of socialization with this group, including Mr. McLean, ended.

[10] On June 9, 2016, KA contacted Mr. McLean on Facebook Messenger (“Messenger”). KA testified that her reason for sending him a message was to inquire about travel deals, as she understood he had had a bunch of good ones. After a few exchanges, they agreed to meet in Kensington Market on July 14, 2016.

b. Events of July 14, 2016

[11] The two met at Trinity Commons, a restaurant in Kensington Market in Toronto, on July 14, 2016 at around 4:00 p.m. There, they shared a bottle of wine. They both testified that they had a good time with each other. After which, the evidence was that they both wanted cannabis.

[12] There is a factual dispute as to whether KA wanted “weed” to smoke or a THC pill as proposed by Mr. McLean. Regardless, it is not disputed that the two walked to a private cannabis clinic, the Canna Clinic in Kensington Market, where Mr. McLean was a member. There, he purchased two THC pills. Mr. McLean testified that his pill was dosed at 25 mg, which he consumed, and KA’s pill was a microdose at 2.5 mg, as she requested, which was the lowest dose available. KA did not think the pill was suspicious and she consumed the pill. Both agreed that KA’s pill was coloured.

[13] After taking the THC pill, their testimony of what happened next differed.

c. Complainant’s Evidence

[14] KA’s evidence in chief was that she remembered walking around to a bunch of places, but she could not recall whether they were before or after taking the pill. She said she had a blackout. Her next memory was that she was on College St. and it was dark and raining. Her next memory was that she was at Mr. McLean’s place on his bed with her underwear on, with Mr. McLean on top of her and trying to take her underwear off. However, later in her evidence in chief and when cross-examined, she recalled being at specific places that evening before being at Mr. McLean’s home.

[15] Prior to being on his bed, she said she had been wearing black and white shorts and a white top. She did not know whether her shorts were totally off, or just at her ankles. She did not know how they were removed.

[16] She recalled the sound of Mr. McLean tearing the lace band on the upper part of her underwear. She said she was on her back while he was on top of her, supporting himself with one hand, she assumed. She testified that she attempted to push him, but she realized her arms were feeling very weak and she could not lift them. She feared she had been drugged because she did not usually feel this way from alcohol. She did not say anything to him. She could not recall if he said anything to her. She said he then started to penetrate her vaginally, which she did not want. She testified that it lasted less than 30 minutes, but she was unsure. She testified that she did not move but that she was finally able to push him off her as he was penetrating her, and then she walked “really fast” to the washroom where she closed the door and may have locked it.

[17] KA testified that she was in the washroom for no more than five minutes. Mr. McLean then knocked on the washroom door, saying “you’re scaring me”. KA could not recall if she said anything in response, or if Mr. McLean repeated “you’re scaring me”. She explained that while in the washroom, she was thinking of what she should do. She said she was afraid to confront him because of what he might do, and that he might attempt to stop her from leaving his place. She testified, “I just remembered thinking I would go outside as if nothing happened so that he would not get alarmed and stop me from leaving his place.”

[18] KA testified that she was also concerned that if she left, she would have to find a way home to Brampton. She wasn’t sure how because she believed it was too late to get a bus. She testified that she could not recall the time, but she said it was night. She was concerned that if she left his place at night, there was a risk of being sexually assaulted by a stranger. She explained that her parents had told her not to take public transport at night because of this risk. She said she decided she would stay at Mr. McLean’s home and leave in the morning. Next, she said she left the washroom but could not recall if she returned to his bedroom or to the living room, but she remembered staying in the living room most of the night and not in Mr. McLean’s bedroom. She did not recall if she first returned to the bedroom to collect her clothes, or whether Mr. McLean brought them to her.

[19] In the living room, KA said that she ate food that they purchased at a restaurant earlier in the evening. She recalled sitting on a chair and later on a couch. She does not recall what Mr. McLean was doing. She said Mr. McLean came in and out of the living room for a few hours through the night. She testified that she assumed they were talking, reasoning that she would have remembered if they stayed silent the whole time. She did not recall what they talked about. She did not recall if she slept or if Mr. McLean slept.

[20] The following morning on July 15, 2016, Mr. McLean drove KA to a subway station.

[21] On July 16, 2016 at 3:53 a.m., KA sent a message via Messenger to Mr. McLean stating, “I think we need to talk”. That was her final communication to him. She explained that Mr. McLean’s responses to this message suggested that he acted like nothing happened, and not that he was accepting any responsibility. In one of his responses, he attached photos he took of them from July 14, 2016, which suggested to her that he was communicating nothing unpleasant happened. She was afraid that if she pursued it, he would “gaslight” her for which she said she did not have the energy.

[22] She explained that she waited to go to the police for six years for a variety of reasons. First, she said in 2016 “it wasn’t legal to smoke weed yet” and she was concerned about liability were she to admit to it. She was also a permanent resident and was concerned she might get deported were she to report a sexual assault, which would implicate her cannabis use. She wasn’t sure if the event would constitute a “rape” because she took the THC pill. She said her mother also discouraged her from reporting the incident out of fear the police would victimize KA. She further explained that she had spent time in hospital in 2020 due to a medical condition, and she also suffered from depression. She decided to report it in 2022 because she was concerned someone else might get hurt.

d. Mr. McLean’s Evidence

[23] Mr. McLean’s testimony of the events on July 14, 2016 differed. I set this out next. Because KA had difficulty remembering events, I interject what she said about certain events in her testimony for the sole purpose of chronologically understanding where their recollections of the evening’s events diverge.

[24] Mr. McLean testified that the two consumed the THC pills at around 6:15 p.m. Next, they enjoyed music at a venue called Lola’s two doors away from the Canna Clinic on Kensington Ave. for about 10 to 15 minutes. One of the photos taken by Mr. McLean shows the pair sitting on a bench at Lola’s and smiling. On cross-examination, when presented with a photo of them at Lola’s, KA agreed that they did stop at Lola’s, sat on a bench, and watched a guitar player.

[25] After which, Mr. McLean said they continued north on Kensington Ave. and stopped at vintage shops trying on hats and sunglasses and being silly. He says this took about 20 minutes. KA, on cross-examination, agreed that this is what they did.

[26] Then, Mr. McLean said they reached Baldwin St., walking west to Augusta Ave. Along Baldwin St., they stopped at an army surplus store. KA, on cross-examination, could not recall this but she said it was something they could have done. She could not recall the order in which they attended shops, and whether it was before or after the THC pill.

[27] Next, Mr. McLean said they walked north on Augusta Ave. to College St. On College St., they stopped at a church, St. Stephen’s, at around 7:10 or 7:15 p.m. He said that they entered, sat in a pew, and were being silly. He said he was feeling the effects of the THC pill at that point. There were photos in evidence taken by Mr. McLean of the two emulating prayer, smiling, and appearing to act silly in the church. On cross-examination, KA could not recall the route they took, but she agreed that they did enter the church for less than 30 minutes. When presented with photos of the two, she agreed that they were having fun and being silly. She could not recall if she was “high”. According to Mr. McLean, KA did not seem “high”, and he did not have a sense that she had blacked out.

[28] Next, he says that the pair walked east on College St., passed Spadina Ave. He said there was a pub in the basement of a building located at College St. and Ross St. He suggested to KA that entering the pub would be something fun to do. Upon entering, he said there were no other patrons, only a male and female server. He said KA put music on the juke box and Mr. McLean ordered two tequila shots. He drank his, but KA only took a sip because she didn’t like the taste. He said the pair danced and “sang at the top of [their] lungs” and then started to dance closely. He said they started to “make out”. As there was no one else there, Mr. McLean said KA was embarrassed and stopped kissing Mr. McLean. She asked for another drink, but not tequila, and the bartender made another shot which they consumed. He says they stayed at the pub for 45 minutes to an hour. His evidence was that they left around 8:00 or 8:10 p.m.

[29] KA, on cross-examination, admitted that the pair went to a pub in the direction of the University of Toronto Bookstore, but her evidence seemed to confuse this venue with a later restaurant, where Mr. McLean said they later got food. She was presented with a photo of the building in which Mr. McLean said the pub was located, but she did not recognize it. She later testified that she did not recall going to a pub. She did not recall who suggested going to the pub, her playing music on the juke box, Mr. McLean getting shots, her saying she didn’t like tequila, or the two dancing and having fun.

[30] Next, Mr. McLean said they continued east on College St. and stopped at a restaurant at Henry St. He said they ordered some waters and food. KA then said she needed to go to the washroom. After five or ten minutes, Mr. McLean sent KA a message on Messenger. In their exchange on Messenger, it shows Mr. McLean sent a message to KA at 8:32 p.m. stating “Where ya?” He testified that he sent it because she was taking longer than expected in the washroom. He then saw her at a back entrance to the restaurant with the door open. She told him she had a headache. He explained that the pair had been walking all afternoon and that it was hot all day. He said they decided to get takeout, and then exited the backdoor. He said there was no discussion on where they would have their takeout food.

[31] On cross-examination, KA acknowledged going to a restaurant, but she did not recall if it was the restaurant on College and Henry Streets. She recalled ordering a puff pastry and taking a bite of it, not a rice dish as alleged by Mr. McLean.

[32] Mr. McLean testified that after the two left the restaurant, “a wall of rain fell”. He said it was around 9:00 p.m. He explained they ran to an overhang on College St. to take cover from the rain, and that they were soaked. He said the temperature changed significantly and it was getting dark. After failed attempts to get an Uber, they eventually got a cab after 30 to 40 minutes. He testified that they had not discussed where they were going, and he asked whether she wanted to go home or to his house. He testified that she said she wanted to go to his house. He said she did not appear to be “blacked out”, she did not have slurred speech, that the pair cuddled in the back of the cab, that she put her head on his shoulder, and that he thought she was walking and talking “fine”. He said the rain stopped him from feeling the effects of the THC pill.

[33] KA denied agreeing to go to his home. She said she was not capable of making that decision. She recalled it was raining, but not that she got wet.

[34] Mr. McLean introduced a weather report into evidence, which was marked as an exhibit. It records weather data from Pearson International Airport. On July 14, 2016, it showed that the afternoon temperature was around 31C, but that it dropped from 6:00 p.m. to 9:00 p.m. to around 20C. At 8:30 p.m., it records showers of light rain and by 9:28 p.m. for 10 minutes, it shows showers of heavy rain. While this is weather data from Pearson International Airport, it is not unreasonable to find that a similar weather pattern likely impacted this area of College St. around this time.

[35] Mr. McLean then recounted what occurred when they arrived at his home. He said that KA’s gait and ability to talk were fine. He said they went to his bedroom and offered KA a t-shirt and shorts because their clothes were soaked from the rain. He said KA stripped down to her underwear, and he was a little shocked. KA only put on the t-shirt. Mr. McLean changed. He got KA a blanket, and a glass of water and she sat in a LazyBoy chair in the living room, while Mr. McLean walked his dog for about 20-30 minutes. He explained he would have had to take the dog for a walk because the dog had been home without Mr. McLean since about 2:00 p.m., or roughly 8 hours. He estimated that when he returned from walking the dog, it was about 10:45 p.m. He was no longer feeling the effects of the THC pill. When back home, he said he sat on a loveseat, while KA remained on the LazyBoy. He said the two watched television for about 20 to 30 minutes.

[36] While watching television, Mr. McLean said KA gave him a flirtatious look. He looked back and invited her to the bedroom. He held out his hand and they went to the bedroom. They started making out. She then took her clothes off and lay on the bed. They started to kiss again and then had sex. He was on top for the first five or ten minutes, and then she was on top for a further five or ten minutes. He said she was making pleasurable noises, “vibrated”, and then got off him. He said the pair spent the night cuddling in bed, until they woke up at around 8:30 or 9:00 a.m. on July 15, 2016. He said they did not leave the bed during the night.

[37] As noted earlier, KA could not recall events from the restaurant, except that she recalled attending one that evening. She did not recall arriving at Mr. McLean’s home, or him walking the dog. Her next memory was of Mr. McLean attempting to remove her underwear.

[38] Mr. McLean denied tearing KA’s underwear off or any of her clothes off. He denied that she spent the night in the living room. He denied that she was “blacked out” or that he took advantage of her in a state of being unable to consent. He said she had two glasses of wine, a microdose THC pill, a sip of tequila, and a different shot at the pub. He said she was not acting unusual. He testified that KA was “absolutely” consenting and that she wanted to go in the bedroom. He recounted having socialized with her many times in the past while consuming cannabis and never perceived her having “blacked out.”

[39] He testified that in the morning, they started to make out, but she pulled away and then crossed her arms to cover herself. To him, she seemed concerned. He asked, “What’s up?” She responded, “we had sex last night, and you are Dillon’s best friend and I’m his ex-girlfriend”.

[40] Mr. McLean testified that he thought she was concerned about their relationship with Dillon. He sought to reassure her. He responded that he had fun last night and thought they had fun, that they could continue seeing each other, and if things were going well, he offered to talk to Dillon. In response, KA said “you’re not a good friend to Dillon”. According to Mr. McLean, this didn’t make sense because they had had so much fun the day before. He said the awkward conversation continued. She then said, “You’re a fucking asshole for doing this to Dillon”. Mr. McLean knew this was similar to how KA interacted with Dillon, but he thought she had changed. He did not like how she was treating him so he offered to talk with her about this later. He invited her to get dressed and offered to drive her to the subway.

[41] He said that her soaking clothes from the night before were hung on a laundry basket overnight and were dry by the morning. She got dressed and he drove her to a subway station. During the drive, he said that KA continued to sneer, roll her eyes, and swear at Mr. McLean as he pulled up to the station.

[42] KA stated that these events the morning of July 15, 2016 did not happen. She stated that when it was time that the subway started running, she said she was leaving. She did not recall whether he offered or she asked, but she did recall that he drove her to the subway.

[43] Mr. McLean testified about his messages to KA after she sent her message on July 16, 2016, saying “I think we need to talk”. In his responses, he invited her to call him on July 16 and he attempted to call her that day. On July 17, he sent photos of them from their day on July 14. He then sent a further message on July 18, stating “How are you doing?” From his perspective, and despite the tense conversations on July 15, 2016, he liked KA and thought they had had a great time together. He wanted to see her again. He denied sending these messages to “normalize” the alleged assault.

IV. Analysis

a. Legal Principles

[44] The accused is presumed to be innocent of the charges. The onus rests on the Crown to prove his guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a high standard: R. v. Lifchus.

[45] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. Likely or probable guilt is not sufficient. At the same time, the Crown is not required to prove anything to an absolute certainty: Lifchus.

[46] “A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent.” R. v. J.A., 2011 SCC 28, para 23.

[47] For the purposes of the actus reus, the absence of consent is determined subjectively by reference to the complainant’s internal state of mind as to whether she wanted the sexual touching to take place: R. v. Ewanchuk, para 26. For the purposes of proving whether the defendant had the necessary mental intent or mens rea, the inquiry is whether the defendant knew the complainant was not consenting to the sexual act in question or was reckless or willfully blind to the absence of consent: J.A., at para. 24.

[48] R. v. W.(D.), at pp. 757-758, provides the following direction in cases that turn on the competing credibility of a complainant and an accused:

a. If the evidence of the accused is believed, the accused must be acquitted.
b. If the evidence of the accused is not believed but the judge is left in reasonable doubt by it, the accused must be acquitted.
c. Even if not left in doubt by the evidence of the accused, the judge must still ask whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.

[49] The credibility of KA and Mr. McLean is relevant to the issue of consent. When reviewing and assessing evidence, Thorburn J. (as she then was) in R. v. Chauhan, 2014 ONSC 5557, provided a helpful summary of the law and the rules to be followed at paras. 38-42:

[38] All of the evidence should be considered together, rather than assessing individual items of evidence in isolation. (R. v. Morin, para 41). This is particularly true where the principal issue is the credibility and reliability of witnesses. (R. v. Gostick, paras 14-18) and R. v. B. (R.W.), (1993) 40 W.A.C. 1, [1993] B.C.J. No. 758 (C.A.) at para 28).

[39] The court must be satisfied of two things beyond a reasonable doubt: (1) that a complainant is a credible witness, and (2) that her account is reliable. (R. v. J.W., 2014 ONCA 322, para 26).

[40] Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall and recount events.

[41] A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. (R. v. Morrissey, para 33). The reliability of the evidence is what is paramount. (R. v. Norman, para 47).

[42] Parts of a witness’ evidence may be accepted and others rejected. Some parts may be more important than others. While a guilty verdict may be founded on the evidence of a single witness, a determination of guilt must not devolve into a credibility contest between two witnesses. Such an approach undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt. (R. v. Vuradin, 2013 SCC 38, para 21).

[50] In assessing a complainant’s evidence, a trier of fact should be alert to frailties of memory, including that:

a. Observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
b. A witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
c. It is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events.

See R. v. C. (G.M.), 2022 ONCA 2, para 38; R. v. A.A., 2023 ONCA 174, paras 15 and 17.

[51] In sexual assault cases, no adverse inference can be drawn against the credibility of the complainant from a failure to make a timely complaint. Rather, in assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case: R. v. D.D., 2000 SCC 43, para 65; R. v. D.P., 2017 ONCA 263, paras 28-30. The importance of delayed disclosure will vary depending on the circumstances of the particular complainant: R. v. ADG., 2015 ABCA 149, para 32, citing R. v. T.E.M., 1996 ABCA 312, paras 9-11.

[52] In this case, I make no adverse inference on KA’s credibility regarding the six-year delay in KA reporting this allegation to the police. Her explanation of the delay was not unreasonable. It did not have an impact on my credibility findings.

b. Application of Legal Principles to the Evidence

[53] I found Mr. McLean’s testimony to be believable. His recollection of events on July 14, 2016 was consistent with logic and common sense and was inherently plausible.

[54] I found his evidence to be reliable. He explained what he did on July 14, 2016 with KA, before and after consuming the THC pill. Where they went and the timing was consistent with what one would expect with reference to the map of Kensington Market that was presented to both witnesses. It was consistent with the photos of what he and KA did that evening. After being presented with those photos, KA corroborated some of the time spent at places after they took the pill. The timeline suggests that it was around 9:00 p.m. when they got in a cab, and the weather report reveals that it was raining heavily, albeit at the airport, around this same time. It is likely that similar weather was present on College St. This would explain how their clothes were soaked, as stated by Mr. McLean, and which fact the complainant denied.

[55] Mr. McLean was straightforward when giving his evidence in chief. He was clear and forthcoming in giving answers and volunteered to correct one answer on the second day of trial about whether he had ever travelled to South America. He was candid in explaining his prior cannabis use. He was able to recount details sufficiently, but not so precisely that it raised suspicion of him creating self-serving facts.

[56] On cross-examination, he was similarly candid. He answered that he had never “blacked out” when using cannabis but he had experienced memory gaps if he drank too much, which he acknowledged might be considered a “black out”. He admitted that if someone has moments of memory loss, that person may still be able to walk and talk normally. He was not argumentative, and I did not perceive his answers as being evasive or self-serving. His credibility and the reliability of his answers were not diminished on cross-examination.

[57] With respect to his evidence around the events at his home just prior to the sexual activity, his testimony was plausible and consistent with evidence of heavy rain. He changed out of his soaked clothes and invited KA to put on dry clothes. His evidence was that she chose to only put on a t-shirt and not the dry shorts offered to her, which would explain the gap in the complainant’s memory as to how her shorts came to be off. He walked his dog, which one would expect if a dog had been left alone for 8 hours. After flirtatious looks, he invited KA to the bedroom. She took his hand and joined him. The two were kissing in the bedroom, and she removed her clothes and laid on the bed, and then they had sex.

[58] The disagreement that he had with KA the morning of July 15, 2016 could reasonably explain why KA sent a message saying “I think we need to talk” the next day. His responses, suggesting that they talk and proposing times, were consistent with his testimony that despite the disagreement, he enjoyed spending time with her and wanted to see her again.

[59] Because I find the defendant’s testimony believable, I must acquit the accused as per W.(D.).

[60] Even if I did not accept Mr. McLean’s evidence, I would still acquit him because I am not satisfied the Crown has established proof beyond a reasonable doubt of KA’s lack of consent. While I generally found KA to be credible, I am not satisfied that her evidence is reliable for the following reasons.

[61] First, some of her evidence was contradicted by other objective evidence. For example, the photos that were taken after the complainant stated she “blacked out” did not evidence her lacking consciousness or being disoriented. While I accept that one can have memory impairment while conscious or disoriented, she appeared to being alert and enjoying her time with Mr. McLean when the last photo was taken at St. Stephen’s church around 7:15 p.m., an hour after they consumed the THC pills. In addition, she testified that after she and Dillon ended their relationship in 2015, the next time she had contact with Mr. McLean was through Messenger in June 2016. However, her first message to him on Messenger on June 9, 2016 states, “Hey, are you still going to bc?” On cross-examination, she acknowledged that this message suggests they had had prior contact and she acknowledged that she could have contacted him earlier.

[62] Second, there were inconsistencies in her evidence. In her statement to the police and in her examination in chief, KA said that she “blacked out” shortly after ingesting the THC pill, and that the next thing she remembered was Mr. McLean tearing her underwear and then penetrating her vaginally. But in her examination in chief, she was able to recall some other things such as going to a restaurant and that it was raining. This would have been nearly 3 hours after ingesting the pill. On cross-examination, and when photos were put to her, she was able to recall details of attending other places after taking the THC pill. None of these photos would have been new to her. They were sent by Mr. McLean to KA on Messenger on July 17, 2016.

[63] She also reported to the police that she told two friends about the sexual assault, one of them being a mutual acquaintance, Steve. She testified that she gave the police Steve’s contact information. Following her testimony, an Agreed Statement of Fact was admitted confirming there was no contact information for Steve in the police investigative file or the Crown disclosure brief.

[64] And third, she did not recall details that one would expect her to remember. For example:

a. She admitted that Mr. McLean had a 90 lb dog, but she could not recall the dog that evening, which Mr. McLean said always slept in the living room. KA testified that she spent most of the night on July 14-15, 2016 in the living room.
b. She recalled in her evidence in chief that it was dark and raining, but she did not recall that they were soaking from the rain and that Mr. McLean offered her dry clothes, which would explain KA’s lapse in memory of how her shorts were removed.

[65] While some of these facts are trivial, and keeping in mind that the trauma associated with sexual assault can impact memory, her testimony does not align with objective evidence and raises reasonable doubt about its reliability.

[66] Finally, there was no evidence that KA lost consciousness. What she described as a “black out” were moments throughout the evening where she lost memory of what occurred, although she did state in cross-examination that she was not capable of making the decision to get into the cab to go to Mr. McLean’s home. This evidence might suggest she lacked capacity to consent. However, given my concerns about the reliability of her evidence, I have reasonable doubt as to whether she lacked capacity. A person can consume alcohol or drugs and still be capable of giving consent, even though they may lose memory of having given consent.

[67] For these reasons, even if I did not accept Mr. McLean’s evidence, I would still acquit him. Based on the frailties with KA’s evidence, I am left with a reasonable doubt as to whether the sexual activity occurred without her consent.

V. Conclusion

[68] I am not satisfied that the Crown has proven beyond a reasonable doubt that the incident of sexual assault occurred.

[69] I find the defendant not guilty of the count of sexual assault with which he is charged.

Released: February 5, 2025
Justice M. Sharma