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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 Information

Ontario Court of Justice

Date: October 14, 2016

Court File No.: OTTAWA 15-SA5088

Between:

Her Majesty the Queen

— AND —

Brian Meharg

Before: Justice Julie I. Bourgeois

Heard on: September 29, 2016

Reasons for Judgment released on: October 14, 2016

Counsel:

• Mr. Mike Boyce — counsel for the Crown
• Mr. Ian Carter — counsel for the accused Brian Meharg

Judgment

BOURGEOIS, J.:

Facts

[1] Mr. Brian Meharg is charged with having sexually assaulted S.C. on March 11, 2015, in his residence in Ottawa. The circumstances leading up to the sexual activity are not in dispute. S.C. and Mr. Meharg met at a Christmas party they happened to both attend in December 2014; during their conversation he mentioned he was involved with The Chive Ottawa, an organization raising funds through social events for various causes in the community, and showed her a few photographs posted on the Instagram page he ran for the organization; she gave him her cell phone number. She subscribed to the public Instagram page and in March 2015, she initiated contact with him asking how she could become a "Chive girl". They agreed on a date and time and he directed her to The Chive website in preparation for the photo session. He advised her as to what pieces of clothing to bring and not to consume drugs before the session, gave her his address and she attended his residence around 12:30, after her make up session.

[2] When she got to his house, they had a short discussion about the photo session and looked at the pieces of clothing she had brought. She went to the bathroom on the main floor to put one of the shirts he supplied to promote the organization. She was nervous, having never participated in such a photo session. He offered her a shot of Irish whiskey, she accepted. He then offered her a glass of white wine and she accepted. The photo session started but they took a cigarette break shortly after. Upon returning inside the house, the photo session resumed and more photos were taken. This is where S.C.'s memory started getting fuzzy. She does not recall the photos taken at this point with a hat or a green mug in the kitchen or elsewhere in the house, except maybe a few fade memories in the bedroom with a flogger in her hands and on the bed. She also has a vague memory of performing fellatio on the accused and seeing the accused walking to the bathroom, naked. Her next memory is of her friend A.S. waking her from the couch in the accused's living room. Her memory is still vague after this point, including the time she spent at the hospital.

[3] Mr. Meharg testified that during the photo session, she wrapped her legs around him and on more than one occasion grinded her crotch area against his and after the photo session was completed they asked each other what was next. He advised her that he would have sex with her if she wanted to, she responded by indicating that they were both adults; he verified that this meant yes, she confirmed. He approached the bed, she performed fellatio, he asked her if she wanted to have sex, she said yes and they took various positions during the sexual activity and ultimately, after asking her where she wanted him to finish, he ejaculated inside her vagina.

[4] Other witnesses testified during the course of this trial, including the complainant's friend, Mrs. A.S., about her communications with the complainant during the photo session and her observations of the complainant after the session; her cousin, Mrs. A.M. about her observations at the hospital; and the nurse involved in conducting the sexual assault evidence kit examination.

[5] Some elements of evidence were filed on consent of both parties: a toxicology analysis from the Center of Forensic Sciences indicating S.C. had a blood alcohol concentration of 148mg/100ml blood at the time the sample was taken and no other drugs or poison were detected in her body and a biological analysis from the same Center concluding that Mr. Meharg could not be excluded as the donor of the DNA found inside her body; text messages between S.C. and her friend A.S. and text messages, some including photographs between S.C. and Mr. Meharg; and finally, some photographs retrieved from the photo session and metadata of the photo session, including the date and time of each photograph taken during this session.

Issues

[6] The parties agreed that the issue at trial was whether the Crown had proved the absence of consent of S.C. or alternatively, whether Mr. Meharg had an honest but mistaken belief in her consent prior to engaging in the sexual activity. They agreed on the law applicable in this case and provided the jurisprudence applicable to the general principles and their respective position as to the application of the facts to those general principles. Counsels also agreed that the "WD" analysis was required.

Position of the Parties

[7] Mr. Carter for the accused argued that the level of intoxication at the time of the sexual activity is the critical issue to answer the question as to whether it would be at such a level to negate S.C.'s consent. Credibility of the evidence of the complainant is often the central point but not in this case as she does not recall what happened. But this means she cannot say if she consented or not. Also, in this case, she cannot say how intoxicated she was at any particular time. She simply does not recall. The accused however, does recall and was able to offer not only direct and uncontradicted evidence as to the actual critical issue but he also presented objective evidence by way of photographs and metadata. It is argued that the only differences in his evidence is found in the evidence of Mrs. A.S. and can be qualified as differences of degree on the outlines of the matter for example how S.C. was dressed while on the couch or the degree of signs of intoxication at that point.

[8] Mr. Boyce for the Crown argues however that the differences in the evidence of S.C. and Mr. Meharg, in the context of the totality of the rest of the evidence are important enough to raise concerns about his credibility when considering the complainant's capacity to consent at the time of the sexual activity. Particularly, the Crown points at the time A.S. texts and speaks with S.C. in relation to the time frame the accused says they engaged in the sexual activity. The Crown recognizes that it has the onus to prove S.C. did not consent at the relevant time and that intoxication is a fluid thing. The Crown recognizes that in this case, there is no expert evidence to assist us in understanding the level of intoxication at the relevant time and its impact on S.C.'s ability to consent. However, the time frame of the last photograph prior to the sexual activity and the next photograph after the sexual activity, coupled with the communications or the quality thereof between A.S. and S.C. tends to show that the accused is prone to exaggeration and calls in question his credibility. It also establishes a link to support the position that she was unable to consent to the sexual activity at that specific time.

The Law

[9] The WD analysis is well known in the legal community but it bears repeating here, in analyzing the evidence presented, the principles enunciated by our Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742 can be summarized as follows:

i. if I believe the accused, I must acquit him;

ii. even if I disbelieve the accused but his evidence raises a reasonable doubt, I must acquit him;

iii. even if his evidence does not raise a reasonable doubt, I must be satisfied that the evidence I do accept is sufficient to support his conviction beyond a reasonable doubt.

[10] In looking at the evidence presented by the parties in this case, I have to consider the elements of the offence the accused is charged with pursuant to s. 271 of the Criminal Code of Canada. R. v. Ewanchuk, [1999] 1 S.C.R. 330 is the seminal case on the elements of sexual assault and the nature of the consent. Particularly at para 25, the Supreme Court of Canada stated:

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent.

[11] The Crown bears the onus, throughout the trial to prove each of these three elements, beyond a reasonable doubt. The accused does not have to prove anything. The concept of reasonable doubt was explained by our Supreme Court in R. v. Lifchus, [1997] 3 S.C.R. 320 as not being a doubt that was far-fetched or frivolous; not based on sympathy or prejudice but rather, based on reason and common sense; one that logically arises from the evidence or the lack of evidence. It is not enough for the court to conclude that the accused is probably or likely guilty. But a reasonable doubt does not amount to absolute certainty, as this would be next to impossible to achieve.

[12] In this case, only the 3rd element of the offence is in issue and as such the question is whether the Crown proved the absence of consent beyond a reasonable doubt. Again, Ewanchuk, supra, offers guidance on this issue at para. 26:

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred.

[13] In this case, there is no direct evidence from the complainant as to her state of mind at the time the sexual activity took place because she has no memory of it. At para. 30, the Supreme Court of Canada in Ewanchuk, supra, indicates that the trier of facts ought to consider all of the evidence, including any ambiguous conduct to determine whether the totality of the complainant's conduct is consistent with her claim of non-consent, or as in this case, is sufficient to support, beyond a reasonable doubt, the Crown's position that she did not consent. The Supreme Court indicates in this context, at this stage: "The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defense of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry."

[14] The memory loss of the complainant was directly addressed by Ducharme, J. in R. v. J.R., [2006] O.J. No. 2698 as evidence of nothing: an absence of evidence cannot be turned into direct evidence of a crucial fact. Loss of memory or a "blackout" is direct evidence that the witness cannot testify as to what happened during a particular period of time. (para. 18)

[15] The Supreme Court of Canada also provided important guidance in its judgment R. v. Esau, [1997] S.C.J. No. 71 in relation to the co-existence of the defense of honest but mistaken belief on consent and the absence of consent in the context of intoxication. Ducharme J. in R. v. J.R., supra specifically referred to it again at para. 18 in these terms:

[...] In Esau at 297, Justice Major said of the complainant's memory loss, "[a]ny number of things may have happened during the period in which she had no memory." Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.

[16] Ducharme, J. addresses the question of memory loss as indirect evidence of non-consent or lack of capacity in those terms at para. 20:

This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may very well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time.

[17] The question then can also become, whether the complainant was too intoxicated to consent to the sexual activity. The Alberta Court of Appeal in its decision R. v. Haraldson, 2012 ABCA 147, [2012] A.J. No. 502, at para. 7, summarized the issue of ability to consent in the context of intoxication, using decisions almost exclusively from Ontario, except for one decision of its own court:

The Criminal Code explicitly provides that there can be no consent if the complainant is incapable of consenting to the activity (s. 273.1). Capacity to consent to sexual activity requires something more than the capacity to execute baseline physical functions. The question is the degree to which intoxication negates comprehension or volition. A drunk complainant may retain the capacity to consent: R. v. R.(J.) (2006), 40 C.R. (6th) 97 (Ont. S.C.J.) at paras. 17-19, 43. Mere drunkenness is not the equivalent of incapacity: R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.). Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self-control: R. v. Merritt, [2004] O.J. NO. 1295 (Ont. S.C.J.). A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases (R. v. Faulkner (1997), 120 C.C.C. (3d) 377 (Ont. C.A.)), though it is not required as a matter of law: R. v. Merritt, supra; R. v. Hernandez, [1997] A.J. NO. 955 (Alta. C.A.), R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468 at para. 18.

[18] As addressed in that case, both counsels agreed that the concept of level of intoxication is fluid and not fixed. It varies across the time of consumption and absorption and without expert evidence it can be difficult and sometimes impossible to draw any probative inference to bridge the evidentiary gap. But as indicated in paras. 16 and 17, it is for the Crown "to demonstrate the complainant's state of sobriety and lucidity or lack thereof at the critical time." Can the Crown prove "beyond a reasonable doubt the absence of capacity or the absence of consent in fact"? This question needs to be answered first before the final question of honest but mistaken belief in consent need to be addressed. In other words, the Crown needs to be able to prove the elements of the actus reus before we turn to the issue of mens rea.

[19] As referred to by the Alberta Court of Appeal in R. v. Haraldson, supra, Ducharme J., in R. v. J.R., supra, addresses the issue of capacity to consent as summarized by various courts and level of courts at paras 41-43. He indicates that "[a] person has the requisite capacity where she has the ability to understand and agree (or not agree) to engage in the sexual activity in question. This is not a cognitively complex task." He then refers to Rosenberg J.A. in R. v. Jensen (1996), 106 C.C.C. (3d) 430, speaking of "minimal capacity required to consent (or withhold her consent) to the sexual activity." He also refers to a passage from the Nova Scotia Court of Appeal in R. v. Patriquin (M.A.), (2004), 2004 NSCA 27, 221 N.S.R. (2d) 370 at 374:

...in order to be found to have lacked the capability of consenting, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate.

[20] Even though the requisite capacity for consent is minimal, it ought not to be equated to insensate or an automaton or intoxicated to the point of unconsciousness, although those states would result in incapacity. Indeed, the Supreme Court of Canada in R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28 clearly held that to consent to sexual activity the person needs to be conscious throughout the said activity. Consent requires a conscious, operating mind to grant, revoke, withhold or change one's mind at any point to participation in the sexual act.

[21] Ducharme, J also noted, at para. 43, that the question of consent is whether or not a person is able to make a voluntary and informed decision at the time of the sexual activity and not whether the person later regrets the decision to participate or whether a different decision would have been made if sober at the critical time.

[22] In R. v. J.W.M., [2004] O.J. No. 1295, Hill, J. also summarizes the law and factual analysis as it relates to the issue of capacity to consent at paras. 55-59. Specifically, at para. 56, he noted that:

[w]hile capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive.

[23] Recently again, the Ontario Court of Appeal in R. v. Garciacruz, 2015 ONCA 27, [2015] O.J. No. 264 had to address the question of the absence of direct evidence of lack of consent from the complainant due to memory loss or "blackout" and held, at para. 69 that:

[...] a Court can draw inferences from a complainant's pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused to consent.

The Evidence

[24] The accused evidence is the only direct evidence on the issue of consent and it is uncontradicted on this issue: he asked her and she consented to the sexual activity. The complainant has no memory or at least no clear memory of the events leading directly to the sexual activities, during the sexual activities and after the sexual activities, until the next morning.

[25] His uncontradicted evidence on the issue of consent does not mean however, that I have no choice but to accept all of it. The court can accept all, none or some evidence of each witness. This matter is serious and difficult for all parties involved in this prosecution. It commands a hard look at all of the evidence, especially given the nature of the complainant's evidence and her "blackout" due to, at least in part, her level of intoxication at various times during that afternoon and evening. But in looking at his evidence, in the context of the rest of the evidence, including the viva voce evidence of the witnesses heard at trial and the text communications and photographs and metadata, I accept the accused's evidence as being credible and reliable. It would, at a minimum, at least raise a reasonable doubt on the Crown's case on the issue of consent. But ultimately, in the end, the Crown's evidence cannot convince me beyond a reasonable doubt that the complainant did not consent to the sexual activities.

[26] The accused testified in a forthwith manner, answering all questions asked of him in a clear, concise but complete fashion. He was able to describe the events chronologically, starting from the night he met S.C. at a Christmas party, to her arrival at his residence, her state of mind at the time being nervous, their preparation for the photo session and how the afternoon unfolded until the period of time in his bedroom following the private photo session. I noted some minor discrepancies or divergences between his evidence and the complainant's evidence, for example the accused has it that during their discussion at the Christmas party she pretended she was employed as a stripper but he found out the next morning that it was a joke; she denied having this conversation; he texted her the next day or the following day but she denies this; he has it that they discussed her motivation to pose as a model for The Chive but in this case she does not deny it but indicates that she does not recall discussing this with him but says she would have indicated that she did not want to provocative photos as her boyfriend would not approve; the accused denies these details as part of their conversation.

[27] It is argued that the accused is filling in the blanks of his memory at times by drawing assumptions instead of telling us what specifically he remembered or by guessing. It is true that on a few occasions he did that but I noted those occasions on rather minute or unimportant details such as for example whether he texted her the next day following the Christmas party or the day after – ultimately she did not respond and he deleted her cell phone number. But as indicated earlier, she denies or does not recall him texting her at all. But in fact, is indeed what can be inferred from the first text communication in March where he has to ask who she is when he receives her text.

[28] Another example could be taken from their discussion upon her arrival or in between sessions about the location where the photo shoots would specifically take place in the house – he does not recall specifying the boudoir type photos would be taken in his bedroom but thought she would have known this by visiting the website. I do not think much turns on this point since it is not a situation where he is trying to hide this information from her given, that those types of photographs are posted on the public sphere of the website and he indeed directed her to that site prior to the photo session, specifically for the purpose of determining what she was comfortable with in advance.

[29] There are other details of the afternoon that he does not clearly remember, for example who suggested they go upstairs to the bedroom for one of the photo shoots or how it came about that her plaited shirt became undone or their specific conversation during the second cigarette break.

[30] I do not find these elements to have a great negative impact on his overall credibility or reliability. In fact, I thought he was doing his best to answer as precisely as possible the tightly and well-conducted cross-examination. Some of these topics were more peripheral to the accusation he was facing and naturally, less attention would have been paid to those details. I did not perceive his testimony as trying to "fill in the blank" with verbiage or wild guesses but rather trying to either provide his best estimation, educated guess or assumption based on other elements he remembered or ultimately from his perception of the situation referred to. For example, he clearly testified that he was assuming he made the suggestion to go to the bedroom because this would have been right in the flow of the photo shoot and would have been a pretty regular field. Or in relation to her shirt, he recalls it being in a knot and him directing the poses during this shoot but cannot recall how and why it became undone but he candidly agreed with the suggestion that it is at least possible that he suggested she undo the knot.

[31] As it relates to the crux of the matter however, he was specifically able to recall and describe the exchange they had prior to the sexual contact and the sequence of events, including the various positions they adopted during their sexual encounter. On this portion of his evidence, as indicated earlier, he was uncontradicted. But also, I find his evidence to be not only unshaken but partly corroborated by the available photographs and the metadata provided for the entire photo session and the various photo shoots.

[32] He testified that even though he believed she was "buzzing" as a result of her drinking, observing she was happy, laughing and talkative, he did not notice signs of intoxication until after the sexual activity, when she verbalized that she felt drunk.

[33] He agreed with the suggestion that not only signs of consumption of marijuana would be picked up by the camera but presumably also signs of consumption of alcohol. Four to six photographs, specifically photos 54 to 56 and 59 and 60, were pointed out to him where the complainant's eyes are either closed or semi-closed or her face is qualified as "weird" by the complainant indicating she appeared to struggle to keep her eyes open due to her level of intoxication. These photos were at tab 5 of Exhibit 4, the slideshows of all the available photographs. This section is identified as the "private photos" taken between 2:49pm to 3:08pm so prior to the sexual activity. However, these are the only photographs depicting her in this light and are accompanied by other photos taken either immediately before or after such as photo 53 and 57 or 61. But more importantly they come in the wave of over a hundred of other photos not depicting her in such a light. In fact, the photos at this tab for example depict her "rolling around on the bed" while he is constantly taking photos (she did testify having some memory of this). In fact, the metadata indicates 159 photos were taken within a 19 minutes period of time, an average of 7 photographs per minute.

[34] In short, on this issue, while it is true that these photos depict her with droopy eyes, they are followed by some bright-eyed shots as well. In looking at the available photos globally, one could not conclude the complainant was drunk or intoxicated, at least not at that stage. She certainly seems much more relaxed than in the first photo shoot and less inhibited by that point but to use the term of the accused to describe her at this point, it certainly appears she was "buzzing", feeling the effects of the alcohol.

[35] It is during this private photo shoot that he testifies she wrapped her legs around him, grinding her crotch area on his and he expressed to her that she was arousing him. He asked her if she was trying to get him to sleep with her, or in other words to have sex with him. It was put to him that this was a pretty dramatic shift in her behavior as nothing up to that point indicated anything sexual. He agreed and explained that this is why he asked the questions whether she was trying to seduce him and what her boyfriend would think of this. He did realize she was under the influence of alcohol.

[36] There is no expert evidence and no reason to believe her level of intoxication during this photo shoot would have risen to a point described by the case law as being unable to consent. This behavior was not completely out of the blue in the sense that there is an obvious progression depicted during the photo session, over a period of a couple of hours and some alcohol consumption.

[37] I think the complainant put it quite fairly herself when she was asked if it was possible they had a conversation just prior to her performing fellatio and that she simply did not remember it. Her response was: "anything is possible". She does not know how much she had to drink. Indeed, this includes the unfolding of the events as he described and leading to her consenting as he described.

[38] I also accept the accused's evidence in this case that the complainant consumed more alcohol after the sexual activities. The photographs depict a glass of wine on the night table and a few additional photos taken after the sexual activities. It is difficult to conclude even at this stage that she would be intoxicated to the level of not being able to consent to sexual activities. But there is no doubt that she becomes increasingly more intoxicated with time to the point of being sound asleep or passed out when her friend A.S. arrives to pick her up around 5:00pm.

[39] Indeed, between the sexual activity and the time A.S. picked her up, the complainant was able to put her high heels and jacket on and walk down the stairs and stand outside to smoke a cigarette, as depicted on the iPhone photo taken at 4:16pm.

[40] There is nothing to contradict the accused on his evidence that after confirming she had a ride with her friend A.S. she consumed more wine. He indicated that she went downstairs to get it and he asked her to leave her keys in a specific location to allow him to either return her car the next day or move it if he had to (this is, in fact what he told A.S. when she arrived too). He described her as being happy and dancing and this is also how her friend and cousin describe her when she drinks. He indicated that she returned upstairs with a large glass of wine and drank most of it before A.S. came to pick her up. In the end, we know that when her blood was taken around 7:30pm, it read 148mg of alcohol in 100ml of blood.

[41] By the time A.S. arrived at around 5:00pm, to use the accused expression: it looked bad. She is half naked, passed out or asleep on the couch. I understand why her friend would be concerned for the complainant's well-being but it seems that this situation spiraled into something else and took a life of its own because the complainant did not have a clear memory of what had taken place but indeed believed they had intercourse.

[42] But it is important to note that her level of intoxication at that time does not reflect the state of the record of her level of intoxication at the time the sexual activity took place.

[43] An important element in this context is Exhibit 1 – the texts exchanged between the complainant and her friend A.S.. The first message is not time stamped but reads: "Let me know how it goes" and the complainant responds with: "Ok". The next message is: "Hey girl are you free around 4:30?" and the complainant responds: "I think so" and send a photo of her facial area from her car, after attending the make up shop in preparation for the photo session. This would be an indication that this exchange took place some time prior to 12:30pm. Then A.S. testified that she sent the message: "How did it go?" and the complainant responded at 1:14pm: "I'm still here lol". The next message from A.S. was: "How's it going lol" and the complainant responded: "Good". It is not clear at what specific time this exchange took place but the next exchange is at 3:25pm, where A.S. asks: "How'd it go? Pics?" and the complainant answers: "Good" and then "Where are you and what am I doing at 4:39". Two things are noteworthy here: this time frame seems to be within the same time frame the sexual activity took place and the complainant is indicating to her friend that things are "good"; secondly she is able to review her prior text messages and respond to her earlier inquiry as to her availability. It is at 3:45pm that she texts her friend to tell her she is drunk and she needs a ride. This also seems to be in line with the accused's evidence as to the sequence of events after the sexual activities, being on her phone, laughing, telling him she felt drunk and asking her friend A.S. for a ride. Also in line with his evidence that she consumed more wine after this, is her next text, not time stamped but indicating: "Fick so drink C[…] Street" when her friend is asking her for the address she is to pick her up at.

[44] She does seem to be more intoxicated during this last portion of the exchange than during the exchange at 3:25pm, closer in time with the sexual activities. But in neither case can she be said to be so intoxicated not to be able to accomplish certain basic tasks and certainly not to the point of not understanding what is happening and being unable to consent to sexual activities.

[45] Another important element in this case is the nurse's evidence, measuring the level of consciousness of the complainant during her interview at 15, the highest score on the Glasgow Comma Scale. She described her as being drunk but answering questions appropriately and having full motor control, good eye contact and laughing with friends. She was satisfied that she understood and could consent to the release of her medical documents. Yet, the complainant does not recall much of her time at the hospital, let alone her signing the consent form for the release of the medical information.

[46] This is a good example that a blackout does not equate to an absence of consent.

[47] The nurse's evidence also contradicts A.S.'s evidence on the complainant's level of intoxication. I want to briefly address other concerns in relation to A.S.'s evidence.

[48] As indicated earlier, the situation she was faced with did indeed look bad and this is not meant to be seen as a criticism on her part. The court had the luxury of hearing all of the evidence and considering it in an objective and detached manner. But some important discrepancies are worth mentioning.

[49] One of those important discrepancies was noted between the evidence of A.S. and the complainant in relation to the discussions to have someone accompany her to the photo session. A.S. gave a detailed enough account that it had been her advice not to attend a stranger's home alone and they had discussed this prior to March 11, 2015. Because she was not available to attend on the day chosen for the photo session, her sister was to accompany her but it turned out the complainant attended on her own. The complainant on the other hand clearly testified that this was never discussed and no plan was ever in place as she always intended to attend the photo session alone. This all took place before any alcohol consumption, prior to that day in fact.

[50] A.S. testified that it was the accused that contacted the complainant through Facebook and requested a date for the photo session. This is contrary to the text Exhibits and to the evidence of the complainant and the accused.

[51] She described the phone call with the complainant between the text messaging sometime after 3:45pm and before 4:50pm as lasting 2 to 5 minutes in those terms: the complainant was very incoherent; not making sense with her words and almost slurring her words; it appeared they had a hard time understanding what each other was saying; she, the complainant, was quiet at times and she had a hard time understanding the words when she was giving her the address; even though there is no evidence as to what other questions she asked her, she testified that she did not seem to respond appropriately to what she was asking her. In the end, she explained to her she needed to send her the address by text and upon terminating the phone call, she did and sent it as: "C[…] Street". It appears the actual address is "C[…] Street" from the text exchanged between the accused and the complainant, filed as Exhibits 2 and 3. This would indeed seem like convincing evidence at first blush but in the end, the complainant was able to follow her instructions and was off by one letter in the spelling of the address.

[52] In the end, not only is she contradicted by the complainant and the nurse as indicated above but she is genuinely concerned for the wellbeing of her friend. After all, she does take the position that she warned her or advised her to be accompanied by a friend when attending an unknown male's house for what she described as a provocative photo shoot. I am not saying she purposely exaggerated her evidence. This could have very well been her perception of their conversation on the phone. But ultimately, A.S.'s evidence about her friend's level of intoxication is to be taken with caution.

[53] I wanted to specify at this point that I accept her evidence however that the complainant was only wearing her underwear when she found her under the blanket on the couch. She would obviously specifically remember this as it appeared to have been an important trigger in her mind that sexual activity of some sort took place and it concerned her greatly. The photograph taken at 4:16pm does not allow to confirm what she was wearing under her jacket but it certainly appears she was not wearing her jeans short when A.S. picked her up around 5:00pm.

Conclusion

[54] The issue raised in this matter is whether the Crown proved, beyond a reasonable doubt, that the complainant did not consent to the sexual activities. I accept the accused's evidence in relation to this issue. His evidence does raise an important doubt. From the evidence available to the Crown, the third component of the essential element of the offence of sexual assault: the absence of consent has not been established. Therefore, there is no need to address the question of mens rea in relation to an honest but mistaken belief in consent.

[55] As a result, I find the accused not guilty.

Released: October 14, 2016

Signed: Justice Julie I. Bourgeois