WARNING

The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

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

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Central East - Newmarket 14-00841 Date: 2016-03-26 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.C.

Before: Justice P.N. Bourque

Counsel:

• L. Thompson and M. Ventola for the Crown
• E. Ghebrai for the accused, J.C.

Judgment

Released on March 26, 2016

BOURQUE J.:

Overview

[1] The defendant is charged with a sexual assault upon a young man on January 1, 2014. This trial involves not only the weighing of competing viva voce evidence but also the weight to be attached to the DNA evidence which was found on the underwear of the complainant.

Complainant's Evidence

[2] The complainant is a young man who, at the time of these events, was some 17 years old. He attended at a police station some four days after the events he complains of and gave a video statement to the police on January 8, 2014.

[3] He describes that on December 31, 2013, he was invited by a friend to come to her home on New Year's Eve for a small party with some friends. The witness knew this friend as a co-worker in a shop. He had been to her home on one previous occasion some two or three weeks before. He came there with a friend and two others. He stated that the friend had two brothers and she lived at that home with them and her parents. The accused in this matter is the father of this friend.

[4] The witness stated that at some point that evening, he introduced himself to the defendant and they shook hands. He did not speak to him. He assumed for a time that he was in the basement.

[5] The witness and his friends were having a party. They were in the basement of the friend's house. The defendant and his wife and their other two children joined in the party by playing games. They were drinking Crown Royal and beer. He stated that he poured himself a drink of Crown Royal mixed with coke and he also had two beers. This was between 9:30 and 1:30.

[6] He also stated that at midnight, everyone in the house (including the defendant and his wife) went out into the garage and they smoked several joints of marijuana. In his statement to the police, he was not specifically asked whether he ingested any drugs that night and he did not volunteer any information. He stated that he went in and out from the house to the garage through the front door, never the back door. Near 1:00 a.m., he went out to the garage with two of his friends and they smoked a bong of marijuana. Very shortly thereafter, he became physically ill and threw up several times. He believed that the defendant came into the garage briefly when he was being sick. He was taken into the house by his friend and lay down on a futon in the living room on the main floor of the house.

[7] He believes he fell asleep. After a time, he awoke and he felt a movement in his trousers and he stated that the defendant was "pulling my dick out and then um, he just like, started just giving me like, a blowjob or something". He stated in evidence that he had lifted up his penis and the defendant "gaged like a man". (I note this detail was not in his video statement and the witness only recalled it after witnessing his video statement).

[8] The witness said he believed that he was aware and this continued for about 3 minutes. At one point, he stated that it went on for 10 minutes. He stated that the defendant was on his knees on the floor. The witness then rolled over on his stomach said "he was going to bed" and the defendant got up and sat on a couch in the room. The witness said that he determined that he was not dreaming. The witness said that the defendant said that "there's neighbours across the street get - getting arrested or something".

[9] The defendant then came over to the futon and "sat on my ass". The witness said "what are you doing?". The witness says that the defendant also opens the window above him. The defendant gets off him. The witness pulls up his pants, (which he says that the defendant pulled down to his thighs) and asks the defendant where his friend is. The defendant says he is downstairs and the defendant went downstairs. The defendant did not follow him and the witness did not see the defendant again.

[10] The witness describes the room where this happened as being dark and originally said there was a light in the kitchen and then said there was a light on on a table in the room and a light in the hall. The witness describes the defendant as wearing a sweater and pants but does not know the colour. He describes the defendant as having blond and sleeked back hair. When asked if he had any facial hair, the witness said "Um, possibly. I don't know".

[11] The witness stated he went downstairs and all of his friends were up and he told one of them what happened. He stated that he went with his friend to his house and spent the rest of the night there.

[12] He stated that he told his sister about a week later. His sister told his mother and the next day his mother took him to the police and he gave the statement on video which has been filed as an exhibit in this matter.

[13] He was asked about a previous charge of possession of marijuana in Orillia and it had been diverted in 2014. He also said he was charged with an offence when he was 15. He described it to the Crown as "going into some cars with 3 friends". With regard to both of these incidents, he minimized his involvement.

[14] In cross-examination he admitted that when he went to the defendant's house he lied about his age because the parents were "strict" about this, although he said that he did it on the friend's suggestion. He was confused about the type of alcohol that he was first drinking. In answer to several questions, he uses the phrase, "my memory fails me". While he insists that he only had three drinks, he admits that he was physically very ill. He withheld information in his statement to the officers about smoking marijuana as well. It was obvious that the complainant was a habitual user of marijuana. (He admitted to using it for once a week for about two years.) He also minimized to the police the extent of his experience with alcohol. He further admitted that the incident of going into cars may also have involved housebreaking.

[15] He was cross-examined about his potential further drug use that evening and specifically, did he also ingest ecstasy. He denied it although he admitted that he took some ecstasy but "did not ingest it". He denied that his memories of this assault by the defendant were the product of visions related to the ingestion of ecstasy. With regard to the incident that he describes with the defendant, he admits that he had to "fill in some blanks" about the incident when he spoke to the police. He also told the police some things that he assumed to be true rather than what he recalled happening. He admitted that he only mentioned the "gagging" to anyone when he was giving his evidence in-chief and had not told anyone of that before. He admitted that with regard to his memory, "some things pop into my head and some things don't".

Witness Evidence

Friend of Complainant

[16] This witness is 18 years old and is a friend of the complainant. He remembers being with the complainant that evening and going to a party that night when his mother drove them there. He does not recall any discussion about anyone's age and he does not recall any discussion about leaving car keys.

[17] He says that he had a drink in the kitchen and then went downstairs. He said he saw two people doing "cocaine" in the basement but did not know who they were. He says that everyone attended the garage and smoked cigarettes. He denies that he smoked marijuana and states that no one offered him ecstasy. He recalls that his friend was sick and he was put on a couch. He states that the complainant wanted to leave and they left and someone drove them to his house. The next morning the friend told the witness what had happened.

[18] In cross-examination, he stated that he did not tell the police anything about any drugs that evening. He also admitted that he had lied to the court in his evidence in-chief when he said he did not have any drugs.

Another Party Guest

[19] This witness is 25 years old and was a friend of the host and the complainant. She stated that when she got to the party she made herself a drink and went downstairs. People were there and they were playing pool or darts or cards. She stated that on several occasions she went into a basement bathroom with her husband and did a "line" of cocaine.

[20] She stated that throughout the evening, she had many drinks; some four or five. She never felt sick or drunk. She stated that they went out to the garage on at least one occasion and she smoked either a bong or a joint of marijuana. She also states that she saw the complainant and his friend "take a pill", which she believes could have been a form of ecstasy.

[21] When they were out in the garage she said the complainant became ill and he threw up on the floor. Someone got a bucket and he continued to throw up in the bucket. She believes that the defendant was in the garage at the time and when they took the complainant into the house, he stayed to clean the garage.

[22] She stated that they put the complainant on the couch and he eventually lay down. The friend opened a window over the couch and she put a blanket on him. She got another drink and went down to join the party. She stated that the party continued for some two hours. She went up and down to the kitchen to get drinks and she remembers others doing the same thing. She looked over at the complainant when she came up to see if he was okay. One time she saw a foot of a person sitting nearby, and the person had a white sock on.

[23] About two hours after the complainant had been taken upstairs, he came downstairs and he looked like he had seen a ghost. She spoke to him in the bathroom and he told her what had happened to him. She also spoke to the host and told her what the complainant had told her. She offered to drive the complainant home.

DNA Evidence

[24] Monica Sloan, with the consent of the defence, was certified by me as an expert in DNA evidence. She testified as to search for samples on the underwear of the complainant, the retrieval of the samples, the manipulation of the samples to obtain DNA sequencing information, and finally the comparing of these samples to the known DNA samples of the complainant and the defendant.

[25] In summary, the garment was visually inspected and this inspection did not reveal any marks or discolorations which would lead to the source of any DNA samples.

[26] As the case history provided to the witness was that the defendant performed fellatio upon the complainant, the witness performed a test upon the front exterior portion of the garment and upon the inside front portion of the garment. The procedure involved identifying an enzyme called amylase, which is a known component of saliva. The procedure described by the witness involved pressing a paper imbued with a chemical which would react with the amylase. Based on the time it took to obtain a chemical reaction, the witness was able to state the likelihood of whether the enzyme was or was not saliva. Four locations on the garment were identified as being a likely saliva (front of waistband, inside waistband, beside the front flap, and beside the inside flap).

[27] Material from three locations (not the inside waistband) were then tested for DNA. Each of the three samples were separated between two "factions", epithelial and sperm, and were analyzed separately, leading to six separate analysis. It should be noted that the witness indicated that the DNA did not necessarily come from the same substance that had the amylase. All of the sperm analyzed samples contained DNA of the complainant. With regard to the epithelial factions, there was a DNA sample taken from front waistband. Compared with the DNA sample from the defendant, it would be a coincidence in 1 to 87th quadrillion that this was not DNA from the defendant. The defendant admitted that this was his DNA and in addition, there was another sample of his DNA on the inside flap of the garment. Among the sample areas there were also DNA identified as coming from other individuals, whom were not identified.

[28] The witness was extensively cross-examined about whether the amount of amylase on the waistband sample could be attributed only to saliva. This was the area with the strongest indication of the amylase. The witness agreed that high concentrations of amylase could be attributed to other bodily substances in large amounts such as sweat and accumulations of sweat over a period of time, especially on clothing. The witness also stated that vomit usually contains saliva and with a greater amount of vomiting, a greater amount of saliva. Ultimately, the witness could not say that the tested sample was from saliva only that this amount of amylase is a stronger probability of saliva.

[29] The witness was also extensively cross-examined about the distinction between primary and secondary "transfer" of DNA. She stated that DNA could be transferred directly (i.e., from blood from a cut hand to a surface) or it could be a secondary transfer (i.e., the blood on the surface picked up by a swipe of an arm and left on another object). With regard to the secondary transfer, the presence of moisture would make a transfer more likely.

[30] The witness agreed that the DNA of the defendant could have been present on the couch where the complainant was lying and on the blanket that was covering him. She stated that "if you have regular contact with a couch or a blanket, you will certainly leave DNA material on it". She also stated the "if that blanket was over top of the complainant, yes there's probably been some transfer of the defendant's DNA to him, but to be in a specific area and to be in a concentrated format...". She also agreed that if the complainant was sweating for a period of time and there was the presence of recent vomit, that could provide the moisture to assist in the secondary transfer of DNA. The witness also agreed that it is quite possible to find saliva on a blanket, which could stay indefinitely and this is capable of being transferred to another object or person.

[31] Finally, the witness testified that very minute amounts of material can generate a DNA sample, down to 6 pictograms.

Defence Evidence

Host's Daughter

[32] The host is the daughter of the defendant. She was 19 years old at the time of these events. She stated that she was having friends over that evening for New Year's Eve. She stated that in addition to her family members, she had the witness from paragraph [19] and her husband, the complainant and his friend.

[33] She stated that she told the complainant and his friend to lie about their ages as her father didn't want underage people drinking at the party. She stated that she had experience with drugs and was a user of MDMA (ecstasy) as well as using marijuana and cocaine. In fact, she was a regular user of marijuana with her mother.

[34] She stated that on that evening, she took two MDMA pills, snorted about 6 lines of cocaine and had portions of two marijuana cigarettes. She was also drinking alcohol.

[35] She stated that she gave to the complainant and his friend each a half ecstasy pill. She testified that for her one pill is enough for an "effect". She believes that the complainant ingested the pill, although she does not know when. She also said that the complainant and his friend joined in smoking marijuana not only from the joints but they were using a bong that they brought to smoke more marijuana. The witness describes the complainant as also drinking rum and beer throughout the evening. She describes her father as drinking rum and Pepsi and had some 10 beers.

[36] She stated that for the first part of the evening, they were all in the basement, playing pool and darts. The alcohol was in the basement but the mixes were upstairs in the kitchen and people went up and down the stairs. At around midnight, they all went into the garage, and they shared a marijuana joint.

[37] The party went back into the house but later the complainant, his friend, the witness from paragraph [19] and the host went out to the garage again to share another joint. The witness describes the complainant as puking into her boots. They did not want to leave him in the garage in that state as it was very cold. She got her father and they all carried the complainant into the house and unfolded a futon and the complainant laid on it, under a blanket. The witness also described the complainant's clothing and stated that he wore his trousers very low below his hips and described some five inches of his underwear showing. The defendant by this time had sat down on the lazy boy chair in the room and had "passed out". They all decided to leave the complainant and the defendant there and all went downstairs. They were playing cards, drinking (the witness said she came upstairs three times and did not notice any interaction between her father, the defendant, and the complainant). She described the complainant as being under the covers and her father (the defendant) as "having his leg over the arm of the lazy boy". She also stated that from downstairs, they could hear what was going on upstairs.

[38] She stated that some hours later, the complainant came downstairs and the witness asked if he was all right and he said he was and she went upstairs and got him some ice water. When she came down, the witness from paragraph [19] spoke to her and told her that the complainant had told her that her father had assaulted him. The witness spoke to the complainant who said to her that her father had been sitting on him, put a blanket over his head and was looking out the window and saying that the cops were next door. The witness says she freaked out and wanted everyone to go home. When the husband had sobered up, he drove everyone home. She did mention that after she spoke to the complainant, he seemed to calmly go back to playing cards and seemed quite normal for the rest of the time that he was there.

[39] It was revealed in cross-examination that the witness exchanged text messages with the complainant the next day. The message was eventually retrieved and it read as follows:

I woke up to someone touching me and putting a blanket over my face and I tried asking who it was, but they didn't say anything. Just tried putting that blanket back over and I was like fuck that, so ou rolled over and then he went back to the couch, ut like five minutes-five mins(sic) later he's like sitting kn (sc) me look- looking through the video and I know it was him because I asked why and ge - said because the neighbours across the street got busted. Then I asked where [friend] was and I cut.

[40] The statement does mention that the defendant "touched him" but did not provide any details and certainly does not describe the act of fellatio which he described in court.

[41] The witness was never interviewed by the police. She stated that she would have told the police all she knew (including the text messages) if they had asked to interview her but they never did. She did not go herself to the police, and in the circumstances (her father being charged with a very serious offence) I can see why it may not have occurred to her to visit them. In any event, she provided the text to defence counsel.

The Defendant

[42] The defendant testified in his own defence. He stated that he worked for a roofing company and was 48 years old. He has been in a common-law relationship with his partner for 35 years and has four children and four grandchildren. At the time of these events, the host and another child were living at home.

[43] The defendant described the layout of the main floor of the house and while he agreed with the sketch prepared by the complainant, he located some of the furniture in different places. He also stated that in the living room, there were several blankets (some were quilts) that were in the living room all the time and were used by the family to keep warm.

[44] On the day of the events, the defendant states that he and his partner were engaging in sexual relations on the fold out couch in the living room. He states they were interrupted by someone at the door. Later in the day, they went to skate at Fairy Lake in Newmarket. They then drove snowmobiles for some two hours and had dinner at his son's house. They came home and some of the host's friends came over for New Year's.

[45] He stated that there was a discussion about the age of the host's friends and they all said that they were 19, although the witness thought they looked much younger.

[46] He described people being in the basement playing games and drinking. Over the course of the evening, he described drinking some seven to nine beers and having a mixed drink earlier. He stated that the grandchildren were staying over and they did an "early" New Year's for them at 9:00 p.m. and put them to bed. He remembers everyone going out to the garage at about midnight and standing in a circle and sharing a joint. He said he had a "toke" as it was passed around. He stated that he knew something of his daughter's drug history, but he did not know that people in the house that night were doing other drugs and did not know previously that his partner smoked marijuana.

[47] He stated that he was upstairs and his partner had already gone to bed when his daughter came to him and asked him to help the complainant who had been sick. The defendant went to the garage and he and others carried him up to the living room, where the defendant opened the sofa bed and laid the complainant upon it. He was covered with one of the blankets. It was the same fold out couch that the defendant and his partner had used for sexual relations earlier that day.

[48] He stated that he went downstairs with the rest and saw that the host had come up and down the stairs a few times after that.

[49] He went upstairs and was going to go to bed but saw that the complainant was uncovered and had his trousers pulled down exposing his underwear. The defendant pulled the blanket over him. The defendant sat down on the chair in the living room, dozed off and then woke up to the complainant "heaving" and eventually threw up. The defendant cleaned it up and then opened the window because of the smell. The host came upstairs and they spoke briefly and then he went upstairs to bed.

[50] He denied touching the complainant in any way and he denied putting his mouth on the complainant's penis.

[51] He states that he had a hangover the next day. The host seemed upset and told him about what the complainant had told her that evening. She also showed him later in the day, the email that she had got from the complainant (referred to above).

Analysis of the DNA Evidence

[52] There are two important issues concerning the DNA evidence. The first is the degree to which I can accept that the presence of the enzyme amylase would lead to the conclusion that the sample was "saliva". The evidence of the complainant was that the defendant took his penis into his mouth. This would likely lead to the leaving of saliva on the underwear of the complainant.

[53] Secondly, can I conclude that the DNA sample attributed to the defendant was obtained by a direct transfer (i.e., from the mouth of the defendant) as opposed to a secondary transfer of DNA from existing DNA of the defendant upon his couch or upon a blanket from his house.

[54] As stated in "DNA a Practical Guide", para 5.2.3:

...only miniscule amounts of bodily substances are required to perform a DNA test. Thus where the DNA test is performed on such small samples, the continuity of that sample may become an important part of the proof in a given case. ....It has been noticed for instance, that an individual's genetic profile may be taken from objects touched by hands, including handshakes. DNA may be obtained from bedding after one night of sleeping in the bed...

[55] I am also cognizant of the decision in R. v. M.M.C., [2014] O.J. No. 1919, where the Court of Appeal indicated that the expert evidence must be looked at with great care, especially where the amounts are small (that case had amounts significantly larger than this case), where the expert has testified as to other sources of the material (amyloses from the sweat of the complainant) and where there are obvious sources of secondary transference, (the blankets used by the complainant for several hours).

[56] The witness was examined and cross-examined closely about these alternate scenarios. She was unable to state what scenario resulted in the transfer of the DNA, be it direct or secondary. The witness stated in response to my questions: (page 112-113 transcript May 15, 2012)

THE COURT: .......what you can't do is to differentiate between all of these different possible sources or transfer. You can guesses about things, but from a scientific point of view, you're doing your analysis, are you in a position to differentiate?

THE WITNESS: As I said earlier, you're basically right. There are a set of results

THE COURT: Right.

THE WITNESS: And I can tell your what's there from a body fluid perspective or not there. I can tell you what's there from a DNA perspective. There are these methods of transfer and I can tell you what they are.

THE COURT: Right.

THE WITNESS: But I cannot say that this is the absolute way it must have happened.

THE COURT: Right, I mean the results can be consistent with a certain way of transfer.

THE WITNESS: Yes.

THE COURT: But you can't say for sure that way or another way were the way of transfer.

THE WITNESS: Yes.

[57] The witness stated that for secondary transfer to have occurred, there were other factors necessary, such as an amount of DNA material on the transferring object and a certain amount of pressure. In cross-examination, she agreed that in the circumstances of this case, with the complainant sweating under the blanket and with vomit on him, that could explain the presence of the amylase and could explain a possible transfer of the DNA from the blanket to the complainant's clothing.

[58] The Crown seeks to establish with this witness, the presence of the defendant's saliva on the underclothing of the complainant, and therefore some corroboration of the complainant's story. In my opinion, the establishment of this fact is inconclusive.

[59] I am aware that the analysis of the samples in this case does not exclude the DNA of others and, in fact, she referred to other samples of DNA which were definitely from others. In addition, the presence of the defendant's DNA on the underclothing of the complainant could clearly have been the result of a secondary transfer. While I do not disregard the possibility of both occurrences, I do not apply the weight to this evidence as suggested by the Crown in corroborating the story of the complainant. It is some corroboration but not that significant.

Legal Analysis

[60] The Crown bears the burden at all times of proving the essential elements of the offence beyond a reasonable doubt. As stated in R. v. Lifchus:

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• Reasonable doubt is not a doubt based upon sympathy or prejudice;

• Rather, it is based upon reason and common sense;

• It is logically connected to the evidence or absence of evidence;

• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and,

• More is required than proof that the accused is probably guilty - a judge or jury which concludes only that the accused is probably guilty must acquit.

[61] In furtherance of this principle is the necessity of weighing the evidence of an accused as stated in R. v. W.D.:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[62] The practical implication of this is that where the version of events from two people to an incident with no other witnesses is diametrically opposed, I cannot in the context of the stated burden of proof simply choose which story I prefer, and if it is the Crown's witness, then register a conviction. I must first assess the defence evidence and only if I find that I reject it, and even if rejecting it, am not left in a state of doubt by it, do I then assess the evidence of the Crown to determine whether that evidence satisfies me beyond a reasonable doubt.

[63] If this rubric is properly applied, the Crown's evidence surely is subject to great scrutiny and thus proof beyond a reasonable doubt becomes a real burden on the Crown, and not just an imaginary one.

Assessment of Defence Evidence

[64] The defendant denies assaulting the complainant. If I believe the defendant, then he is entitled to an acquittal.

[65] I note he gave his evidence in a straightforward manner. He was not seriously challenged in cross-examination.

[66] There were some discrepancies between his evidence and the evidence of his daughter, the discussions that night and her assessment of his alcohol consumption. However, there was nothing in her evidence that contradicted his main assertion that he did not assault the complainant. In reviewing his evidence, I must also look at the other evidence and while I don't give it a great deal of weight, I must consider the DNA evidence. It is possible that the DNA found on the underwear of the complainant was left there as a result of the alleged assault.

[67] However, as I have already pointed out, the weakness in the assertion that the sample was as a result of the amylase and the distinct possibility that the DNA found on the garment was left there as a result of DNA already on the blanket, either from the defendant earlier in the day or from some other time. I am cognizant of the fact that where the defendant has come into contact with a material (on many previous occasions) there is a real likelihood that his DNA is on that material and could likely then be passed onto anything else that comes into contact with that material. If this alleged activity occurred in a place that the defendant did not frequent, then that evidence would be much stronger and would probably stop me from accepting the defendant's version of events.

Assessment of Crown Evidence

[68] I go on to consider the Crown's evidence. The evidence of the complainant is supported by his demeanor at the scene. However, his recitation of this event is, in my opinion, tainted not only by the drug use that evening, but also by the attempt by the witness to limit and deny that drug use. I also note that the complainant added embellishments to his evidence from the statement given to the police. I also note the embellishments from the information provided in his email to the host on the day following.

[69] These are not things which necessarily cause me to disbelieve the complainant in the sense that he has made up a story, or to think that his drug use was so extensive that this is simply the product of imagination, and thus seems real enough to the complainant. It does, however, cause me to pause and consider whether all of these factors taken together would allow me to be convinced beyond a reasonable doubt about the guilt of the defendant.

[70] While it is not without blemish, I find that I cannot simply reject the defendant's evidence. It certainly could leave me with a reasonable doubt. Couple that with the flaws in the complainant's evidence and the lack of truly convincing forensic evidence, and I find that such doubts remain and thus I am compelled to find that the defendant is not guilty of the charge against him.

Signed: "Justice P.N. Bourque"

Released: March 26, 2016