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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: 2017-05-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Steven Black-Gentles

Before: Justice M. Greene

Counsel:

• T. Goddard for the Crown
• B. Badali for Steven Black-Gentles

Reasons for Judgment

Released May 11, 2017

Background

[1] Mr. Black-Gentles is charged with sexually assaulting S.P. It is alleged that he sexually assaulted her while she was asleep at his residence on November 18, 2015. Prior to trial, the defendant brought an application to cross-examine S.P. on three prior incidents of alleged sexual activity between himself and S.P. In a judgment released March 28, 2017, I allowed the application which permitted counsel for the defendant limited cross-examination of S.P. on the three requested areas. This was largely because the theory of the Crown made the prior sexual contact relevant. At trial, Mr. Black-Gentles denied sexually assaulting S.P. The sole issues raised at trial were whether S.P. consented to the sexual activity or whether Mr. Black-Gentles had an honest but mistaken belief in her consent.

Evidence at Trial

[2] S.P. and Mr. Black-Gentles met approximately five months prior to November 18, 2015. They had met at a party at Mr. Black-Gentles' residence and became fast friends. S.P. described the relationship as a friendship but also testified that Mr. Black-Gentles expressed a desire to have a sexual relationship. S.P. testified that she had no sexual or romantic interest in Mr. Black-Gentles but tolerated his advances because she liked attending the parties at his residence, enjoyed spending time with him and liked talking to and confiding in him. S.P. testified that she and Mr. Black-Gentles had sexual intercourse on one prior occasion. It was some time after they met and had become friends. According to S.P., Mr. Black-Gentles wanted to massage her and she allowed it. Then he started to have sex with her. S.P. testified that at no point did she want to have sex with him but she nonetheless acquiesced. S.P. testified that in her mind she was "a bit coerced" into it.

[3] S.P. testified that on another occasion Mr. Black-Gentles massaged her and she massaged him with their clothes off. She also permitted him to take a photograph of her in the nude on one occasion. She thought these events occurred on the same date but was not certain of this.

[4] According to S.P., on November 18, 2015, S.P. went to Mr. Black-Gentles' residence at approximately 6:00 a.m. Prior to arriving at Mr. Black-Gentles residence, she consumed 750ml of wine with a friend at approximately 9pm. and a vodka cranberry at approximately 1 a.m. S.P. also ingested one pill of Xanax and "1 or 2 key bumps" of cocaine at this same time. S.P. testified that she had never consumed Xanax before, but that on this early morning, the consumption of the alcohol and drugs made her lose her inhibitions and made her feel more relaxed while she was out at the bar with her friend.

[5] At approximately 3:00 a.m., S.P. left the bar with her friend. S.P. helped her friend get into a cab as her friend was strongly affected by the drugs she had taken at the bar. S.P. arrived at Mr. Black-Gentles residence a few hours later. S.P. could not recall what she did in the intervening hours.

[6] Upon arriving at Mr. Black-Gentles' residence, S.P. noticed that there were about 15-20 people present which was pretty normal as Mr. Black-Gentles frequently held after hours parties at his residence. S.P. could not recall arriving at the residence. She also could not recall if she saw or spoke to the defendant upon her arrival. According to S.P., all she could remember of her arrival at Mr. Black-Gentles residence was sitting down on a couch, noticing other people were around and feeling tired. She then fell asleep on the couch.

[7] S.P. testified that she awoke to find herself on Mr. Black-Gentles' bed with him behind her. She felt his fingers in her vagina. S.P. then pushed his arm way and said "what the fuck I was sleeping". She then tried to stand up. S.P. was shocked and confused by what was taking place. Mr. Black-Gentles then said "wait, come back, I almost had you cumming".

[8] Upon trying to stand up, S.P. felt wobbly on her legs so she sat back down on the bed and as soon as she was able, she stood up, and went back to the living room to look for her clothing and other belongings. S.P. testified that when she awoke, most of her clothing was still on but her underwear had been removed. She found it on the floor and put it on before she left. S.P. then put her shoes on, called for a taxi or an uber, spoke to her friend for a minute or so and then left the apartment.

[9] Upon returning home, S.P. spoke to her mother and then spoke to the police later that same day.

[10] S.P. testified that she did not know how she moved from the couch to Mr. Black-Gentles' bed. She further testified that she did not consent to engaging in any sexual activity with Mr. Black-Gentles that morning.

[11] Ms. Bugyra, a toxicologist at the Centre for Forensic Sciences, testified that both Xanax and alcohol have a sedative effect on the person that ingests it while cocaine has a stimulatory effect. The cocaine, while it is still in the body, can serve to counteract the depressive effects of alcohol and Xanax, but the cocaine would not stay in the body as long as the Xanax. Ms. Bugyra could not testify as to what effect, if any, the alcohol and drug had on S.P.'s cognitive capacity and memory on the morning of November 18, 2015.

[12] Mr. Black-Gentles testified at trial. According to Mr. Black-Gentles, the sexual contact that took place on November 18, 2015 was completely consensual. It was his evidence that there had been sexual interest on both sides during the entire relationship and that he had never pressured or coerced S.P. into sexual contact.

[13] Mr. Black-Gentles testified that he met S.P. at a party at his residence in June, 2015. After meeting they spent hours talking and eventually had sexual intercourse. After this night, they started to text each other flirtatiously and S.P. continued to come to his parties. On most nights when S.P. came over, she would remain long after all the other guests had left.

[14] Despite the initial sexual attraction, the relationship continued in a platonic fashion for the most part because S.P. was dating one of Mr. Black-Gentles' colleagues. Nonetheless, S.P. continued to attend his parties, either weekly or biweekly and would usually stay talking with him well into the morning hours. During these visits, S.P. would put her legs on him and he would rub them. On one occasion, when Mr. Black-Gentles indicated he wanted a memento of their first night together, S.P. suggested he take a photograph of her naked. On another occasion they massaged each other with their clothes off.

[15] According to Mr. Black-Gentles, at no point did S.P. indicate that she was not sexually attracted to him. Mr Black-Gentles testified that all of S.P.'s actions led him to believe that she was very much interested in him sexually but that she was reluctant to move forward with a sexual relationship because of her romantic involvement with one of Mr. Black-Gentles work colleagues.

[16] According to Mr. Black-Gentles, on November 18, 2015 S.P. telephoned him in the early morning hours and wanted to come over. All his party guests had left, but he was happy to visit with S.P so he said "yes" to her request. When S.P. arrived, she gave Mr. Black-Gentles a hug that lingered longer than normal. They sat down on the couch and, as usual, she put her legs on his lap. They then talked for hours. At this point, Mr. Black-Gentles was feeling tired and advised S.P. that he was going to go to bed. S.P. then asked if she could stay. Mr. Black-Gentles took her hand and led her to the bedroom. S.P. stated that she wanted to make love to him. They both went on the bed. Mr. Black-Gentles moved behind S.P. and started to cuddle with her and caress her body. They were both fully clothed at this point in time. S.P. then moved her bum closer to his groin. Mr. Black-Gentles testified that he then caressed S.P.'s abdomen. S.P.'s breathing became labored and he moved his hand to her groin area at which point S.P. groaned and moved her bum closer to Mr. Black-Gentles causing Mr. Black-Gentles to think that S.P. was aroused. He had his hand in S.P.'s groin area when S.P. jumped up and said "what the fuck". Mr. Black-Gentles was surprised by this reaction and moved away from S.P. so as to assess the situation. S.P. continued to repeat "what the fuck". Mr. Black-Gentles was concerned about this complete turnaround in her behaviour and in that moment made the decision to move away from S.P. and told her to leave and to not come back (later in his evidence Mr. Black-Gentles testified that he told S.P. it would be better if she did not come back again). S.P. then became very angry, jumped out of bed, grabbed her stuff and stormed out of the apartment.

Issues Raised in the Case at Bar

[17] The court heard effectively two diametrically opposed versions of what took place on November 18, 2015. According to S.P. she fell asleep and woke up to being sexually assaulted by Mr. Black-Gentles. According to Mr. Black-Gentles, S.P. was awake all morning and consented to the sexual activity that took place between them that morning.

In the alternative, counsel argued that if the court finds that S.P. was asleep when Mr. Black-Gentles touched her sexually, Mr. Black-Gentles honestly, but mistakenly believed that S.P. was still awake and consenting to the sexual touching.

[18] There is no issue that Mr. Black-Gentles touched S.P. in a sexual manner and that he intended to do so. The only issue is whether or not S.P. consented and whether or not Mr. Black-Gentles knew that S.P. was not consenting.

[19] The Crown made one additional argument which I can quickly dispose of. Crown counsel argued that it was open to the court to find that S.P. lacked the capacity to consent due to her consumption of alcohol and drugs. Given the evidence, there is no basis for the court to make this finding.

Relevant Legal Principles

[20] Mr. Black-gentles is presumed to be innocent of this offence, unless and until the Crown has proven each essential element of the offence of sexual assault beyond a reasonable doubt.

[21] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[22] It is not enough for me to believe that Mr. Black-Gentles is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. To find Mr. Black-Gentles guilty, however I must be sure that he committed the offence.

[23] In assessing the credibility of the witnesses in this case, I remind myself that if I believe Mr. Black-Gentles I must find him not guilty. Even if I do not believe Mr Black-Gentles, if I am nonetheless left in a reasonable doubt by his evidence, I must find him not guilty. Even if I completely reject Mr. Black-Gentles' evidence, I must still find him not guilty if on all the other evidence, I am not satisfied beyond a reasonable doubt of his guilt.

[24] In cases where there are two versions of events, proof beyond a reasonable doubt is not satisfied merely because the trial judge prefers one version of events over another. Moreover, it is open to the court to believe both S.P. and Mr. Black-Gentles. If I do believe them both or if I am not sure whom to believe, I will have a reasonable doubt and must find Mr. Black-gentles not guilty.

[25] In assessing Mr. Black-Gentles' evidence, I am not to ask myself whether or not his evidence could reasonably true. There is no burden on Mr. Black-Gentles. The burden lies with the Crown to prove the case beyond a reasonable doubt.

[26] Often times in assessing credibility the court is asked to consider inconsistencies within a witness' evidence. Not all inconsistencies will necessarily lead to rejecting a witness' evidence. The court must go on to consider the nature of the inconsistencies and what effect, if any, the inconsistences have on a witness' credibility or reliability.

[27] In the case at bar, evidence was presented about S.P. talking to her mother and then going to the police. The fact that a complainant pursues a complaint is not evidence that the witness is telling the truth.

[28] In the case at bar there was some suggestion of a motive to fabricate. While the existence, or absence, of a motive to fabricate is a factor the Court can consider in assessing the credibility of a complainant, there is no burden on the defendant to prove a motive to fabricate.

Credibility of S.P.

[29] Counsel for Mr. Black-Gentles argued that S.P. was not a credible witness. He argued that S.P. lied about being sexually assaulted because she was mad at Mr. Black-Gentles for kicking her out of his condominium and for telling her that she should not come back. He further argued that S.P. lied when she told the court that she was not sexually attracted to Mr Black-Gentles and that she had consistently rejected Mr. Black-Gentles' sexual advances. Counsel argued that S.P. made this up as a means of bolstering her false allegation of sexual assault.

[30] In support of the argument that S.P. lied to the court when she testified that she was not sexually attracted to Mr. Black-Gentles, counsel for Mr. Black-Gentles identified evidence that in his submission completely contradicted this assertion. That evidence is as follows:

a) They in fact engaged in consensual sexual intercourse on one prior occasion;

b) S.P called Mr. Black-Gentles "babe" in her text messages to him and sounded flirtatious in these messages;

c) S.P. allowed/encouraged Mr. Black-Gentles to take a photograph of her nude;

d) S.P. went over to Mr. Black-Gentles residence frequently, late at night, and would stay with him for hours with her legs on his lap; and,

e) S.P. engaged in mutual massaging with Mr. Black-Gentles.

Counsel argued that all these facts combined clearly establish that S.P. was sexually attracted to Mr. Black-Gentles and that she lied to the court when she denied having such feelings. In light of this lie, it was argued that the court should reject S.P.'s evidence.

a) The prior act of sexual intercourse

[31] There is no dispute that Mr. Black-Gentles and S.P. had sexual intercourse on one prior occasion. They disagree, however, on when it took place and whether or not it was fully consensual. According to Mr. Black-Gentles, this sexual event took place on the first night they met. S.P. testified that it took place months later. Mr. Black-Gentles testified that S.P. wanted to have sex with him and was clear about her desire. S.P. testified that while she did not overtly state that she did not want to have sexual intercourse with Mr. Black-Gentles, she felt that Mr. Black Gentles coerced her "a bit" into having sex with him. She was not attracted to him and only reluctantly agreed to engage in this sexual activity as a result of the pressure he put on her.

[32] In my view, given the inconsistent evidence on this point, I reject the defence argument that this prior incident is evidence that S.P. lied about her lack of sexual attraction to Mr. Black-Gentles. This evidence would only serve to discredit S.P. if I reject her evidence on this point which I do not. S.P.'s explanation for what took place during this first sexual contact was credible and reliable. She was consistent in her evidence about this event and there was nothing about her description of the event to cause the court to reject her evidence.

b) The text messages

[33] I have reviewed the text messages in detail. In my view, the text messages that immediately followed the first meeting, give no hint or suggestion that S.P. and Mr. Black-Gentles had recently had sex nor do they support a finding that S.P. and Mr. Black-Gentles talked for hours. For example on page 4 of the book of text messages, S.P. advises Mr. Black-Gentles that she has a job and goes to school. It is clear from Mr. Black-Gentles' response that he did not know this. Moreover, while Mr. Black-Gentles appears flirtatious in a number of the text messages sent in June, S.P. does not. S.P. did not immediately respond to Mr. Black-Gentles' first test message, she did not agree to meet him at a bar in the days that followed and when Mr. Black-Gentles hinted at finding her attractive, S.P. essentially steered away from this line of conversation (for example, in explaining why she would not be going out for a few days S.P. wrote "Haha I hibernate until Wednesdays". Mr. Black-Gentles replied "U should be out n about showing off ur natural assets!!! I would if I were u!!!. " S.P. responded "Lol ew no way I would rather stay in bed all day"). Moreover, in a number of text messages S.P. specifically references her "man Ronnice" whom Mr. Black-Gentles identified as S.P.'s boyfriend.

[34] I agree with counsel that on occasion S.P. did call Mr. Black-Gentles "babe". The overall context of the text messages, however, is not suggestive of a sexual or romantic relationship. The phrase is used with such casualness that I have no difficulty accepting S.P.s evidence that she calls all of her friends "babe" and that it was not indicative of her having romantic or sexual feelings towards Mr. Black-Gentles.

[35] When reviewed as a whole, the text messages do not contradict S.P.'s evidence that she was not sexually attracted to Mr. Black-Gentles. In my view, they are consistent with her version of events.

c) Going to Mr. Black-Gentles' residence on a frequent basis

[36] S.P. readily admitted in her evidence that she went to Mr. Black-Gentles place frequently and that she did so for many reasons. Firstly, because she liked to party and there was always a party there. Secondly, because she liked confiding in Mr. Black-Gentles and talking to him. Thirdly, because there was alcohol at Mr. Black-Gentles' residence. This evidence is completely consistent with the text messages that she sent to Mr. Black-Gentles. In many she indicates a desire to party, she wants to bring her friends over and wants to know if he has alcohol. I completely accept S.P.'s evidence on this point and find that her attendance at Mr. Black-Gentles' residence with relative frequency is not evidence that she was sexually attracted to Mr. Black-Gentles and does not cause me to doubt her credibility.

d) Massaging and photos

[37] S.P. admitted to one instance of massaging Mr. Black-Gentles and of allowing him to massage her while unclothed. S.P. could not explain why she agreed to this activity given her lack of attraction to Mr. Black-Gentles and had very little recall of this event. While I appreciate that this does suggest some level of attraction on this one particular night, I still have no difficulty accepting that generally S.P. was not attracted to Mr. Black-Gentles. It is clear from the evidence that during the vast majority of her visits to Mr. Black-Gentles' residence nothing sexual took place because S.P. did not want anything sexual to take place.

[38] S.P. also admitted to allowing Mr. Black-Gentles to photograph her naked. S.P. testified that she was comfortable with her body and had been drinking when this took place. She further testified that her willingness to allow Mr. Black-Gentles to touch her and photograph her on these occasions was not linked to any sexual attraction she felt for him. I found S.P.'s evidence on this point credible and consistent with her general description of the relationship. I further note that even Mr. Black-Gentles testified that the photographing of S.P. naked was not linked to any ongoing sexual activity. In fact, he wanted the photograph as a memento of their one and only sexual interaction. If anything, Mr. Black-Gentles' evidence confirms S.P.'s evidence that the photograph was not linked to any sexual desire on her part.

[39] Overall, I found S.P. to be a very credible witness. Her explanations for her actions were consistent with her overall description of the relationship and are supported by the text messages. In my view, S.P. explained her actions, readily conceded that there were a few instances of sexual contact but explained how this came about and why she engaged in the sexual activity despite her generally platonic feelings towards Mr. Black-Gentles. When I consider all the evidence, I accept that S.P. was not sexually attracted to Mr. Black-Gentles and the evidence outlined above, considered cumulatively, does not give me any cause to doubt S.P.'s evidence on this point.

[40] Defence counsel further argued that S.P.'s evidence should be rejected because it was not believable that S.P would decide to attend a party or go to Mr. Black-Gentles' residence when she was so tired that she fell asleep immediately upon arriving at his residence. Counsel argued that if S.P. was really that tired, she would have gone home just like her friend did. In my view, the fact that S.P., despite her very tired state, still went to Mr. Black-Gentles' residence does not detract from her credibility. In my view, this decision was completely consistent with S.P.'s description of herself and the choices that she was making at that point in her life. S.P. wanted to be where the party was and wanted to be around people. In my view, this does not cause me to disbelieve or doubt S.P.'s evidence.

[41] Defence counsel further argued that at a minimum, the court should be concerned with the reliability of S.P.'s evidence. S.P. generally had a poor memory for many of the events that took place between herself and Mr. Black-Gentles. Moreover, she could not recall anything about what took place between 4am and 6 am on the morning in question. Counsel argued that given the gaps in S.P.'s memory it is quite possible that the events as described by Mr. Black-Gentle's took place but S.P. just does not remember it.

[42] I agree that S.P. had a poor recollection of dates and specifics of what took place on certain occasions with Mr. Black-Gentles, in particular around the taking of the photographs. S.P. testified that she was frequently intoxicated while at Mr. Black-Gentles' residence. This could account for her poor memory. In my view, S.P. was not feigning a poor memory in an attempt to deceive the court. I accept that there were many details that she could not recall. Nor does this evidence leave me with any concern about the reliability of S.P.'s evidence as it relates to her evidence about what took place during the morning of November 18, 2015. S.P. freely admitted when she was incapable of remembering something. She easily admitted that she had no recollection of what took place between 3am and 6am. She did, however, recall going to sleep on Mr. Black-Gentles' couch and waking up hours later on his bed with him sexually assaulting her. There is a difference between not remembering what took place, and waking up from slumber. S.P. appeared to know this difference well.

[43] Counsel argued that on S.P.'s version of events, there is no explanation for how S.P. moved from the couch to Mr. Black-Gentles' bed. Of course there is no such evidence, because S.P. testified that she was asleep during this period. There are many ways that S.P. could have been moved to the bed. One obvious option is that she was carried to the bed. In my view, the fact that S.P. fell asleep on the couch and woke up on the bed does not mean that S.P. had to be awake at some point during that morning.

[44] Overall I found S.P. to be a very credible witness and while her memory about dates and some specific events over the five month relationship with Ms. Black-Gentles were hazy, I found her evidence about the morning of November 18, 2015 to be both reliable and credible.

[45] When I consider all the evidence, I believe and accept S.P.'s evidence that she woke up on Mr. Black-Gentles bed on November 18, 2015 to find that his fingers were inside her vagina, that she immediately jumped up and protested the event and shortly thereafter left the residence.

Credibility of Mr. Black-Gentles

[46] The mere fact that I accept S.P.'s evidence does not necessarily mean that the Crown has proven its case. As noted above, it is open to the court to accept the complainant's evidence and still accept or be left in a reasonable doubt by the defendant's evidence. I must therefore consider whether I accept or am left in a reasonable doubt by Mr. Black-Gentles' evidence.

[47] Counsel for Mr. Black-Gentles argued that Mr. Black-Gentles was a credible witness and that I should accept his evidence that there was an ongoing sexual relationship between S.P. and the defendant and that the sexual touching that took place on November 18, 2015 was consensual or that he had an honest but mistaken belief that S.P. was consenting to the sexual touching. Crown counsel argued that I should reject Mr. Black-Gentles' evidence and find that he was well aware that S.P. did not want to engage in any sexual activity with him and as a result, when S.P. fell asleep at his residence, he took advantage of this opportunity and sexually assaulted her.

[48] Mr. Black-Gentles testified that in his mind S.P. was sexually interested in him. Mr. Black-Gentles testified about specific events that took place between himself and S.P. that caused him to believe this. As noted above, I accept S.P.'s evidence that she was not attracted to Mr. Black-Gentles. I also accept, however, that Mr. Black-Gentles did not really appreciate this. I accept that Mr. Black-Gentles interpreted the late night visits, the one incident of sexual intercourse, the one incident of massaging and the text messages as S.P. being interested in him. His belief that she was interested was strengthened by the fact that S.P. never told him outright that she was not interested but instead used other excuses, like having a boyfriend, for not wanting to continue any kind of sexual relationship with him. I accept Mr. Black-Gentles' evidence that on his reading of the relationship, S.P. was interested sexually in him but wanted to remain just friends for other reasons. In light of this finding, I reject the Crowns' argument that Mr. Black-Gentles' motive to commit this offence arose because in his mind the only way to engage sexually with S.P. was when she was asleep.

[49] I am mindful that there were some differences in the evidence of S.P. and Mr. Black-Gentles about what took place prior to November 18, 2015 that cannot be readily explained by differences in perception. In particular the timing of the first act of sexual intercourse. I have no means of assessing which witness was accurate on the timing issue. While the text messages sent between the parties do not have the tone one might expect between two people who just shared an intimate sexual act and more strongly support S.P.'s version of events, I cannot conclude definitively when the one act of sexual intercourse actually took place and therefore cannot conclude that Mr. Black-Gentles was misleading the court on this point.

[50] Counsel properly pointed out that Mr. Black-Gentles was cross-examined at length and he was largely consistent during his evidence. There was, however, one inconsistency in his evidence that is troubling, specifically because it is on a point central to Mr. Black-Gentles' defence. Mr. Black-Gentles originally testified that once S.P. started to freak out, he told her to leave and that she should not come back. He testified that it was this harsh response that caused S.P. to storm out of his residence and make up the false allegation of sexual assault. Later in his evidence, Mr. Black-Gentles watered down the language. He testified that he told S.P. that it would be better if she did not come back and that it was a good idea for them to stop hanging out alone late at night anymore.

[51] This one inconsistency alone, however, would not lead me to reject Mr. Black-Gentles' evidence. Nonetheless I do reject his evidence on the issue of what happened on November 18, 2015. I do so for two reasons. Firstly, as previously noted I completely accept S.P.'s evidence which is completely inconsistent with Mr. Black-Gentles' evidence and secondly, because Mr. Black-Gentles' version of events completely defies common sense. I am mindful that courts should be cautious in rejecting evidence merely because it defies the trial judge's view of common sense. Common sense is subjective and frequently linked to the life experience of the trier of fact. It is well known that different life experiences lead to different views on common sense. In the case at bar, however, the court has the entire context of the relationship between S.P. and Mr. Black-Gentles to guide the analysis. In my view, the events as descried by Mr. Black-Gentles are completely inconsistent with the entire relationship as described by both witnesses and as such defies common sense and cannot be believed.

[52] Firstly, it defies common sense, given the nature of the relationship between S.P and Mr. Black-Gentles that S.P. would have acted in the manner in which Mr. Black-Gentles described. S.P. had been intimate in the past with Mr. Black-Gentles, tolerated his advances in the months leading up to this event and shared intimate details of her life with him. She even let him photograph her naked as a memento. It makes no sense that she would then get angry for no reason right in the middle of a consensual sexual act. On all the evidence this is not a woman who "freaks" out for no apparent reason in the midst of a consensual sexual act. I note that on the prior occasion when S.P. felt pressured into having sexual intercourse with Mr. Black-Gentles, she did not scream and yell at him nor did she get mad at him at all.

[53] Secondly, it also defies common sense that Mr. Black-Gentles would act in the manner he described and just kick S.P. out of his residence. By his own admission he wanted to be sexually engaged with S.P. For months he welcomed her into his home and sat with S.P. for hours taking whatever sexual contact S.P. was willing to give him. On his own evidence he was as a patient and trustworthy friend. It therefore is not believable that Mr. Black-Gentles would callously kick a very upset S.P. out of his house without even attempting to determine what happened.

[54] Counsel for Mr. Black-Gentles argued that one very likely scenario on all the evidence is that S.P. and Mr. Black-Gentle talked for hours, as described by Mr. Black-Gentles and that S.P. just does not remember it. He further argued that S.P. walked with Mr. Black-Gentles to his bedroom, and then fell asleep on his bed while he was sexually touching her but again has no recollection of this. He argued that the gaps in S.P.'s memory support such a finding and make it likely that events took place that night that S.P. just does not remember. Counsel further argued that it is open for the court to find that Mr. Black-Gentles continued to touch S.P. while on his bed, but that unbeknownst to him, S.P. fell asleep. Mr. Black-Gentles mistook the sounds of slumber with sounds of arousal. Counsel argued that S.P.'s explosion and anger occurred because she fell asleep and awoke to Mr. Black-Gentles touching her. On this scenario the court could find that S.P. did not consent to the sexual activity as she was asleep but since Mr. Black-Gentles did not know she was asleep, he honestly but mistakenly believed she was consenting.

[55] This argument has its allure as it allows the court to accept S.P.'s evidence that she awoke to being sexually touched by Mr. Black-Gentles while also accepting Mr. Black-Gentles' version of events that he and S.P. talked all morning before going to his bedroom. This argument also resolves the concern I expressed above that it makes no sense that S.P. would "freak out" for no reason. Despite the allure of this argument, in my view it is not supported by the evidence. On Mr. Black-Gentles' version of events, he was on the bed with S.P for a very short period of time. Too short of a time period to have S.P. fall asleep and then wake up in shock and horror that Mr. Black-Gentles is placing his fingers in her vagina and having no memory of the events that took place just minutes earlier. This version of events also does not take into account Mr. Black-Gentles evidence that in response to his touching S.P. she rubbed her bum closer to him. This version of events also does not take into account S.P.'s evidence that her underwear was removed, as Mr. Black-Gentles maintained her bottom garments remained on at all times. In my view, the evidence does not support a finding that Mr. Black-Gentles mistakenly believed that S.P. was awake when he was sexually touching her.

[56] When I consider all the evidence, I am unable to reject Mr. Black-Gentle's evidence that S.P. was awake for part of the time that morning and that they talked at length. While I believe S.P. that she fell asleep right away, I have no basis to reject Mr. Black-Gentles' evidence this point. His evidence was plausible and he was consistent on this taking place. I do, however, for the reasons outlined above, reject Mr. Black-Gentles' evidence that S.P. asked him to have sex that morning and that she consented to him sexually touching her. I also reject the argument that Mr. Black-Gentles believed that S.P. was awake when he touched her vaginal area. I am satisfied beyond a reasonable doubt that Mr. Black-Gentles placed his fingers in S.P.'s vagina while she was asleep and that he knew she was asleep when he did this. Given this finding of fact, I am satisfied beyond a reasonable doubt that sexual touching did take place, that S.P. did not consent to the sexual touching that took place on November 18, 2015 and that Mr. Black-Gentles knew she was asleep when he did this and that she was not consenting. Given my finding of fact that Mr. Black-Gentles knew that S.P. was asleep, the defence of mistaken belief in consent is not available. I therefore find Mr. Black-gentles guilty of the offence of sexual assault.

Released May 11, 2017

Justice Mara Greene