R. v. N.B., B.B., L.H. & B.I.

Court: Ontario Court of Justice, St. Catharines

Date: 2018-08-04

Before: Justice Fergus O'Donnell

Reasons for judgment delivered: 19 July, 2018

Written reasons released: 4 August, 2018

Counsel

For the Crown: Ms. P. Vadacchino & Mr. K. Kim

For the defendant, N.B.: Mr. G. LoConte

For the defendant, B.B.: Mr. H.A.P. Little

For the defendant, L.H.: Mr. M. Del Gobbo

For the defendant, B.I.: Ms. L. Wilhelm

Heard: In Writing

Introduction/Overview

[1] The evening of Saturday, 13 August, 2016 started out as a summer Saturday evening much like many others. One backyard in St. Catharines was the venue for a birthday party, put on by a high-school student for her boyfriend. In general terms, the attendees were from two different high-schools, one in St. Catharines, the other in Niagara Falls. Several of the attendees were players on the schools' football teams. The birthday boy had attended both schools. There was, however, no partisan ugliness at the party. Everyone got along fine.

[2] The ugliness came later. At an ill-defined time sometime after midnight the defendants left the party. At around the same time, the complainant was sitting in her car in the driveway, upset, intoxicated and apparently desirous of getting to her boyfriend's house. Somewhere between the party and the intersection a few houses away, the complainant's path intersected with the defendants' path. She recognized the driver and insisted on getting a ride to her boyfriend's home. Despite being told that there was no room in the car, a compact car that already contained five football players about to enter grade twelve, the complainant, at five-feet, eleven-inches tall, opened the back door and made her way into the back seat, where she says she sat on one of the players' lap and gave the driver her boyfriend's address. The occupants of the car were the driver, N.B., plus B.B. in the front and L.H., J.S. and B.I. in the back seat.

[3] An undefined time later, the complainant showed up at her boyfriend's bedroom door, crying and saying she had been raped. She had been driven not to her boyfriend's house but to a school parking lot directly across the street from it. The evidence shows beyond any doubt that during the drive from the party to her boyfriend's house (a trip that would typically take about ten to fifteen minutes at that time of day), there was sexual interaction involving her and the two outboard backseat passengers (L.H. and B.I.), as well as the front seat passenger (B.B.). There is no evidence that the middle back seat passenger (J.S.) or the driver (N.B.) personally engaged in any sexual touching of the complainant. The sexual interaction that has been discussed at this trial appears to have included kissing, touching of the complainant's breasts, digital manipulation of her genital area and vaginal intercourse, with each of the involved passengers being involved to a varying degree.

[4] I have spoken of sexual interaction. I have not yet referred to the issue of consent. Each side in this unfolding drama will define the ugliness differently. The Crown says that the complainant was sexually assaulted when she was so drunk that she was incapable of consenting to any sexual activity. The defence say that any sexual activity was consensual and that they have been swept into a maelstrom of false and serious allegations driven by the complainant's realization after the fact that her consensual sexual involvement would endanger her relationship with her boyfriend and would expose her to shame in a "small" town.

[5] With the exception of the party host's aunt, who owned the house and was in the general area of the party, and the host's parents, who dropped in occasionally during the evening, everyone was apparently under the legal drinking age. There was, nonetheless, a lot of alcohol consumed. And some marihuana. Indeed, the invitation specified that alcohol and cannabis were acceptable, but hard drugs were not. The evidence showed that all but one of the defendants had been drinking, as had the complainant and most of the witnesses called by the Crown, a not uncommon situation in criminal trials, but one which complicates a court's performance of its task. However much alcohol was consumed at this party, the common theme seems to be that it was a lot.

[6] A proper understanding of this court's task is essential. Contrary to common understanding, a criminal court does not always define what did or did not happen in a particular incident. This is not a royal commission or commission of inquiry. I am not a detective. A criminal court's focus is, rather, to determine whether or not the Crown has proved specific criminal allegations beyond a reasonable doubt. Proof beyond a reasonable doubt is a very high standard of proof, not quite as high as "absolute" or "scientific" certainty, but getting close to it. Because a criminal court starts with the defendant being presumed innocent and maintains that presumption unless guilt is proved beyond a reasonable doubt, a criminal court does not simply choose one side over another. That "either/or" choice is more like the standard of proof in a civil trial and does not come anywhere close to proof beyond a reasonable doubt.

About Sexual Assault

[7] These are charges of sexual assault. The issue of sexual assault has taken on tremendous public prominence over the past few years, justifiably so. It has done so both in the courts and in the broader society. There have been several noteworthy cases in this country and elsewhere involving the abuse of power by prominent men against women who were subordinate to them. There has been criticism about how the courts have handled several sexual assault cases, some of that criticism entirely fair, some of it less so.

[8] Society has long struggled with the issue of sexual violence, an offence the victims of which are primarily, but not exclusively, women and girls. The way we have dealt with the issue has not been our finest achievement. We have come a long, long way from when women were seen as the property of their husbands and when the idea that a husband could be guilty of raping his wife was seen as ludicrous, but we have a long way to go in terms of eliminating the stigma that surrounds allegations of this nature as well as the false stereotypes that pervade this field.

[9] These are important issues for society, but it is exceedingly important that nobody lose track of the particular context within which issues of sexual violence are being discussed. Individuals are free to apply their own standards of judgment and proof to allegations of misconduct involving presidents or movie producers. Customers are free, on whatever standard they choose, to boycott a company whose policies or executive conduct in the area of sexual mores cause them discomfort. Online debate on the issue can be as reasonable or as outrageous as online debate tends to be.

[10] This, however, is a criminal court. It applies standards that have been developed over centuries. Those standards have developed for very good reasons and have stood the test of time. To the extent that anything is immutable, those traditions deserve to be immutable. They include the presumption of innocence and the burden on the Crown to prove every criminal charge beyond a reasonable doubt. They reflect society's firm belief that no person should be found guilty of a criminal offence, any criminal offence, trifling or tragic, unless the case against him or her is certain. They reflect society's belief that, whatever the times, whatever society's mood, the prospect of a wrongful conviction is always odious. It has been said that it is better that a hundred (or a thousand) guilty people walk free than that a single innocent person be condemned. Every person considering the issue should always keep in mind that that single wrongly condemned person could be them or someone they care about. If traditions like the presumption of innocence and the standard of proof are compromised, none of us is safe.

[11] No criminal trial is ever about vindicating the complainant or victim. Particularly in the internet era, there is a very real danger that the public passion to achieve perceived justice for victims of sexual violence can threaten the central pillars of the criminal law. This must never happen. Even before the internet made measured debate over important public issues particularly challenging, various societies have struggled with maintaining their core principles while facing the most recent social challenges and, let there be no doubt, that sexual violence is a long-standing and continuing threat to society.

[12] The dangers inherent in a rush to judgment are probably best reflected in the colloquy between Sir Thomas More and his son-in-law, William Roper, in Robert Bolt's play A Man for All Seasons. Both men were lawyers. Roper asks Sir Thomas if Sir Thomas would give even the devil the protection of the law. Sir Thomas replies that he would indeed give the devil the full protection of the law, to which Roper says that he himself would cut down every law in England if that were what it would take to get at the devil. Sir Thomas then asks Roper what he would do when he had cut down every law to get at the devil, had the devil cornered and the devil then turned on him, when there were no laws left to protect Roper himself: "This country's planted thick with laws from coast to coast...and if you cut them down....d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

[13] It must be remembered that proving any criminal case is challenging because the standard of proof is high. This is not unique to sexual assault cases. It is true of thefts and frauds and robberies and drink-driving offences and domestic assaults also. Various cases may suffer from particular challenges. In this case, the degree of intoxication of the various participants creates problems of proof. Problems like that generally affect the Crown more because the Crown carries the burden of proof. Domestic assaults and sexual assaults also carry the added problem that such offences usually happen in private, with only the complainant and her alleged assailant or assailants present. Such "he said, she said" cases are especially difficult to prove beyond a reasonable doubt.

The Law Relating to Sexual Assault and Consent

[14] There can be no meaningful discussion or understanding of what happened on 14 August, 2016 without a proper understanding of the law relating to sexual assault.

[15] To begin at the beginning, s. 271 of the Criminal Code makes sexual assault a criminal offence. Where there is an allegation of aggravated circumstances in a sexual assault case, such as the use of a weapon, causing bodily harm or committing the offence with another person or persons, s. 272 of the Criminal Code treats the offence more seriously.

[16] In the present case, all four defendants are charged with both sexual assault and group sexual assault.

[17] The Supreme Court of Canada has said that there are five essential elements to any allegation of sexual assault. Three of those elements involve the required guilty act and two involve the required guilty intention. The guilty act must comprise (a) touching, (b) of a sexual nature, (c) where there is no "consent" to that sexual touching. The first two of these are not in dispute here. Three of the defendants had sexual contact with the complainant. The guilty intention requires (d) that the touching be intentional, and (e) that the defendant knows there is no consent or is reckless or wilfully blind about the lack of consent. There is no issue that the sexual touching by the three defendants was intentional.

[18] The issue of consent tends to be central to sexual assault cases. Offences of a sexual nature present particular challenges in this way. Consent is seldom an issue in other types of assaults including domestic assaults. Experience shows us that couples seldom engage in mutual or consensual pushing, slapping, punching and the like. By contrast, all sorts of sexual interaction in all sorts of contexts involving all sorts of relationships routinely does happen with the consent of the parties. Separating consensual sexual interaction from non-consensual interaction is often a thorny issue for criminal courts.

[19] The burden is on the Crown to prove the absence of consent beyond a reasonable doubt.

[20] The Criminal Code defines "consent" as, "the voluntary agreement of the complainant to engage in the sexual activity in question." The Supreme Court has found that the existence or absence of consent is determined from the perspective of the complainant, i.e. "by reference to the complainant's subjective internal state of mind toward the touching, at the time it occurred." The existence or absence of consent is a question of fact and can be determined by considering the evidence of the complainant on the issue of consent, as well as any other relevant evidence, such as what the complainant did or said before or during the sexual interaction. While the complainant's evidence on the issue of her subjective consent can be believed or disbelieved by the trier of fact, if the trier of fact does believe that there was no consent in the complainant's mind, the trier of fact cannot use her words or actions at the time to conclude that there was "implied" consent. Put simply, "implied" consent is not a defence. (Ewanchuk, paragraph 29).

[21] Where does this leave a defendant, facing a very serious charge arising out of an extremely common and highly nuanced area of human relationships and who says he believed that the complainant consented even if the court finds that the complainant, in her mind, did not consent? Is he to be damned with a criminal conviction for a serious criminal offence carrying major stigma, possible imprisonment and often life-long ancillary consequences as a result of misunderstanding? He is not. The safety valve that Canadian law provides is the defence of mistaken belief in consent. This defence has both common-law and statutory conditions attached to it.

[22] The first thing that has to be kept in mind is that a defendant's mistaken belief in consent does not have to be a reasonable belief in order to count as a defence; it simply has to be found to have been an honest belief in consent. This principle dates back to the 1980s, in cases such as R. v. Pappajohn, and R. v. Sansregret. Accordingly, even a defendant's unreasonable belief in a complainant's consent to sexual activity is a defence, so long as it is an honest belief. The application of that basic principle, however, is subject to its own nuances and limitations.

[23] First, the defence of mistaken belief in consent must have an "air of reality" to it: R. v. Davis. In some cases, for example, a defendant's version may be that there was actual, express consent by the complainant, which may leave little or no room for an alternative argument of mistaken belief in consent. In any event, the Supreme Court in Davis found that for there to be an "air of reality" to a defence of mistaken belief in consent, there must be evidence of a, "situation of ambiguity". That evidence may come from any witness or from a combination of witnesses.

[24] Second, Parliament has made the policy choice that in order to be valid, a claim of mistaken belief in consent cannot arise from either (a) self-induced intoxication, or (b) recklessness or wilful blindness: Criminal Code, s. 273.2(a). That is a factor for consideration in the present case where there is evidence that the defendants (or most of them) were intoxicated (or heavily intoxicated) by alcohol and/or high on marihuana.

[25] Third, Parliament has placed an onus on a defendant claiming to have had a mistaken belief in consent to demonstrate that he took, "reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting": Criminal Code, s. 273.2(b). The proper application of this requirement has been considered by the Court of Appeal for Manitoba in R. v. Malcolm, where that court suggests the following approach:

A. Determine what circumstances the defendant knew.

B. Consider whether a reasonable person knowing what the defendant knew would have taken further steps before proceeding with sexual touching.

C. If a reasonable person would have taken further steps before acting and the defendant did not, the defence of mistaken belief in consent is not available.

D. If a reasonable person would not have taken further steps before acting, or if a reasonable person might not have taken further steps before acting, the defence remains available.

[26] The fourth requirement of the defence of mistaken belief in consent is that the defendant must have, "believed that the complainant communicated consent." Put another way, a defendant's belief that the complainant consented but that she did not express that consent is no defence at all. There must be an affirmative communication by the complainant that she agreed to the sexual interaction with the defendant. That affirmative communication may be by words or actions, but, "silence, passivity or ambiguous conduct," by the complainant will not suffice even if the defendant believed any of those circumstances made out consent. Although it does not arise on the facts of this case, "no" cannot mean "yes". Once a complainant has said "no", the defendant must ensure there has been a change of mind before he can proceed with sexual activity; he cannot rely on the passage of time to conclude that consent exists, nor can he use further sexual touching to "test the waters."

[27] Finally on this point, it has been made clear that a defendant's mistaken belief in consent only has to be honestly held, it does not have to be reasonable. However, that does not mean that the reasonableness of the defendant's belief is irrelevant. To the contrary, the reasonableness of a defendant's mistaken belief is one consideration in determining if the belief was in fact honestly held. This is manifested in s. 265(4) of the Criminal Code, which specifically requires that a jury instruction in a sexual assault case involving mistaken belief in consent must include a direction to that effect.

[28] There are other limitations on the availability of the complainant's consent as a defence to a charge of sexual assault. Of potential relevance in this case is s. 273.1(2) of the Criminal Code, which provides that there can be no consent where, "the complainant is incapable of consenting to the activity." The Supreme Court of Canada considered this provision in R. v. J.A., where it found, (a) that there must be "ongoing, conscious consent" to the activity, and, (b) that there must be consent for, "each and every sexual act". The Supreme Court explained the underlying concern as follows:

Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness....It follows that Parliament intended consent to mean the conscious consent of an operating mind." Put alternatively, there will be no capacity to consent where, "one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation": see, R. v. Saint-Laurent (1993), 90 C.C.C. (3d) 291 at 311.

[29] As I have said, almost everyone at the party was either drunk or high; some may have been both. There seems to be no question on the evidence that the complainant had been drinking through the night, as had various of the witnesses at trial. There is also evidence about B.B., L.H. and B.I. drinking. There were also suggestions that some or all of the defendants had been using marihuana.

[30] A person's consumption of alcohol or controlled substances can become an issue in various ways at trial. For example, it can affect a person's ability reliably to observe, recall and recount what happened at the material time. The complainant's evidence, for example, is that she recalls almost nothing of what happened during the car ride, a period of perhaps ten to fifteen minutes. A person's level of sobriety can also be relevant to the issue of consent. A person whose judgment is compromised by alcohol or drugs may very well still have the capacity to consent; a person's impairment does not inoculate them from poor choices that they make while impaired, choices that they might not have made while sober. A person's after-the-fact regret does not allow them to convert an ill-considered, drunken choice on their part into a sexual assault by a defendant. However, there comes a point where an impaired person may lose the capacity to consent as a result of ingesting drugs or alcohol. To borrow the language from St.-Laurent, above, that will arise where, "one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation." One of the challenges is defining, in any particular case, the line between drunken imprudence and incapacity to consent.

[31] It is important to recall that the required level of awareness or cognition for a person validly to consent to sexual activity is not particularly high; indeed, it has been described by our Court of Appeal as a "minimal capacity": see R. v. Jensen. At the same time, it is important to keep in mind that even people who are very drunk can perform relatively basic functions and that the capacity to perform those basic functions does not necessarily equate to capacity to consent to sexual activity. The words of Hill J. in R. v. Merritt are instructive in this regard:

Counsel for the appellant submitted that at "a basic level", on arrival at the appellant's house T.W. knew she was going to be sick, stayed on her own in the bathroom, was able to vomit on her own, and walked unassisted to the appellant's bedroom. While 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. This is particularly so in light of the evidence of the complainant's extreme intoxication including lack of consciousness after midnight.

[32] At the same time, every determination about whether or not an impaired complainant had the minimal capacity required to consent to sexual activity will ultimately be extremely fact-dependent.

[33] In keeping with the presumption of innocence, there is no burden on a defendant, for example, to prove that there was consent or to prove that the complainant had the capacity to consent. There is no burden on a defendant to testify as to such issues. A defendant is entitled to keep his or her silence and to argue that the Crown has failed to meet its burden. That is true in every case, for every type of offence. Whatever arguments might be made in favour of other mature legal systems that approach the burden of proof differently, this is and long has been our system and, generally, it works rather well.

[34] I have said that I must not adopt an either/or approach to the evidence. That is a very basic principle. In this case I have evidence from the messages of the various defendants' explanations of what happened in the back of the car. In looking at the evidence, the process I must go through is as follows:

A. If I believe the defendants' evidence that the contact was consensual, or that they reasonably believed it was consensual, I must acquit.

B. Even if I do not believe the defendants' version, if their version creates a reasonable doubt, I must acquit.

C. Finally, even if the defendants' version does not create reasonable doubt, I must look at the evidence overall and see if the Crown has met its burden of proving its case beyond a reasonable doubt. It is important to remember that the burden to prove its case is always on the Crown. While it might be strategically prudent for a defendant to seek to demonstrate his innocence or to provide evidence that demonstrates reasonable doubt, it is not the defendant's obligation to prove his innocence at any point.

[35] Although the three points above are invariably expressed in that order, there is no particular requirement that every case set out precisely that order of analysis so long as the underlying principles are understood and applied.

The Law Relating to Party Liability

[36] As will be seen, the evidence here appears to remove any doubt about three of the defendants engaging in sexual touching of the complainant, each to varying degrees. There is no evidence that the designated driver, engaged in any such touching himself. The Crown seeks to impose criminal responsibility on the driver through s. 21 of the Criminal Code, which makes a person guilty of an offence if he or she does or omits to do something for the purpose of aiding in the commission of the offence.

[37] It is not sufficient for party liability that N.B. was simply present at the commission of a crime. The law is clear that in order for him to be found guilty as a party he must have: (a) had knowledge that one or more of the other three; (b) were committing or were going to commit a sexual assault and (c) the driver did or omitted to do something, (d) for the purpose of aiding in commission of the offence. At a minimum, he cannot be found guilty as a party unless there is a basis to find at least one of those three passengers guilty of a sexual assault. The issue of "knowledge" includes the concept of any wilful blindness on the driver's part, i.e. any situation in which he should have suspected what was going on but effectively chose not to inquire. With respect to the aider's "purpose", that does not require that the aider desire the outcome sought by the principal offender (in this case a sexual assault on the complainant), merely that he do something to assist it. Indeed, the aider may be entirely indifferent to whether or not the offence succeeds, but if he does something to aid its commission, he will nonetheless be guilty.

On Witnesses

[38] I have heard various forms of evidence in the course of this trial, which proceeded over many days. Much of it was from the mouths of witnesses who testified in court and were cross-examined at length on their testimony. There was some scientific evidence, about which there seemed to me to be little controversy, as well as some agreed facts. It also seemed to me that there was little controversy over the physical layouts of the two principal scenes involved, namely the area of the party and the area where the complainant was dropped off near her boyfriend's house.

[39] I also heard evidence about various utterances attributed to the defendants. None of those utterances was to a "person in authority" such as to engage any issues of voluntariness or any issues under the Charter of Rights. Some were statements attributed to various defendants by the complainant's friends, who conducted their own investigation in the days after the alleged sexual assaults. Others were statements by various defendants in text messages or social media. The Crown introduced those statements for the Crown's own purposes, but I must consider them for their full content, both favourable and unfavourable to the Crown.

[40] Witnesses come in all shapes and sizes. Some come to court with complete detachment from the parties and their issues. I would place Mr. Brent Cahill from the Centre of Forensic Sciences in that category. Like the fabled postal carrier of yore, Mr. Cahill made a timely appearance on the first day of trial despite a nasty winter storm and the traffic limitations of the GTA. The evidence that followed his appearance was as professional and unbiased as it was spotless.

[41] Some witnesses may testify with either a conscious or subconscious bias in favour of one party or against the other. In this case, for example, it was suggested that some of the witnesses called by the Crown, who were friends of the complainant, were inclined to exaggerate the complainant's level of intoxication in order to advance her cause. A trier of fact has to be alive to such possibilities. The Crown took a similar position with respect to the sole witness called by the defence. Realistically, a witness may not even be aware of how his or her bias may affect their perception and recollection.

[42] For all witnesses (by which I include utterances admitted in evidence, whether or not the person making the utterance testified), a trier of fact has to be alive to whether or not they are credible (i.e. honest) and reliable (i.e. were in a position to make reliable observations of relevant facts and to remember and recount those observations reliably many months after the events). Both credibility and reliability are central factors in determining the strength of each side's case. An honest witness whose evidence is not reliable (whether because of alcohol consumption, physical distance from the events observed, loss of recollection over time or a host of other reasons), can be as much of an impediment to the Crown's or a defendant's case as a dishonest witness; the difference lies in the character of the witness. An honest but unreliable witness bears no fault; a dishonest witness is the scourge of the criminal justice system.

[43] A witness's demeanour has rather little value; triers of fact have no magical skills to distinguish truth from falsehood on such a basis alone. Instead, the trier of fact will look to things such as both internal and external consistency of witnesses' evidence, how it sits with objectively reliable evidence and how it fits within predictable or probable patterns of behaviour. Even then, however, the trier of fact must be sensitive to the fact that what is "normal" behaviour may vary widely depending on time, place and circumstance.

[44] As the trier of fact in this case, I am entitled to accept all, some or none of any given witness's evidence. I have to be alive to discrepancies in the evidence, but I also have to be alive to the fact that people perceive and recall things differently. I also have to be alive to the fact that, to the extent this is known to me, this appears to have been a novel experience for everyone involved and I must make allowances for the participants' lack of expertise in the criminal justice system. For example, a witness's failure to mention something at a police interview that he later mentions in court may justify questioning his or her evidence, but it may reflect nothing more than the fact that they were nervous and/or were not driving the interview process but rather were the object of it.

[45] As I have said, a recurring and very significant issue at this trial was that almost every witness had been drinking. For example, the host of the party said she had more than ten shots and probably five or six mixed drinks. To the extent that people were asked to assess how impaired other people were, it was impaired people making the assessments, including of their own level of sobriety.

The Live Witnesses At Trial

[46] I heard from the following witnesses at trial, in the following order:

• Mr. Brent Cahill of the Centre of Forensic Sciences.
• "R.H." - one of the complainant's best friends, who was at the party and who participated in part of the private investigation in the days after the party.
• The complainant.
• The complainant's boyfriend at the time.
• "K.B." - another of the complainant's best friends, who was at the party and who participated in part of the private investigation in the days after the party. She was the host of the birthday party, which was being held for her boyfriend.
• "J.A." - another of the complainant's best friends, who was at the party and who participated in part of the private investigation in the days after the party.
• "J.S." - the fifth young man in the defendants' car. The Crown charged him separately in anticipation of calling him as a Crown witness at trial, but did not ultimately call him to testify. He was called as a defence witness.

The Evidence In Detail

[47] This was a long trial. I have tried to be as concise as possible in describing the evidence, aiming to satisfy both the interest in brevity and the importance of setting out the particularly salient details of the evidence in order to assist the complainant, the defendants, other interested parties and the public at large in understanding how I determine whether or not the Crown has met its burden of proof. Ultimately, these reasons are long because of the length and nature of the evidence.

[48] I shall aim to go through the evidence on a thematic basis, rather than witness by witness.

How Much Did the Complainant Have to Drink And What Condition Was She In?

[49] The complainant, R.H., K.B., J.A. and J.S. all testified to the complainant's alcohol consumption that evening and/or her condition at the time of the sexual activity in the car. The complainant's boyfriend testified to her condition when she arrived at his house sometime after getting out of the car.

[50] The evidence generally was that this was a party summer, being the summer after the complainant and most of her friends had graduated from grade twelve. For the defendants it was the summer before grade twelve. The evidence generally was that the complainant was an accomplished and frequent drinker and that she could generally hold her liquor. She was about five-feet, eleven-inches tall and weighed around one-hundred-and-sixty to one-hundred-and-seventy pounds. There was some divergence between her and R.H., who was probably her closest, non-intimate male friend, as to how often they had drunk together over the couple of years they had known each other, but I am not sure that much if anything hangs on it.

[51] The complainant testified that at the time of the party she was eighteen years old and in a committed relationship with her boyfriend, who was about six years older than her and who moved in an entirely different circle of friends. She had had a sandwich some time during the day and had taken one Prozac tablet, but not any alcohol or illicit drugs, nor did she take any drugs to the party. She said that she arrived at the party late, around ten p.m. Contrary to the evidence of other witnesses, she did not recall bringing any alcohol to the party, although she did recall her passenger bringing a case of beer. She also testified to having strong mixed drinks, a type of drink that the other witnesses did not generally advert to in relation to her that evening, although none of them was with her the whole evening. She was drinking from a twenty-six ounce bottle of Finlandia vodka, which she found at the party; she also had some shots of vodka with her friends.

[52] After a number of shots and mixed drinks, the complainant has a vague recollection of a chugging contest she was involved in. She had not recalled this initially, but after being told by a friend about the chugging contest, she had a specific recollection of a burning sensation after three gulps. She thought the other contestant was a high-school girl. R.H. did not recall who the other contestant was. The complainant did not recall if there was a winner but did recall feeling ill afterwards. She recalled going to her car and getting in a fight with R.H. She said that when she got to her car it started to hit her, "I didn't feel things as I usually did. Like I, I don't know, I was stumbling and I was in my head a little bit more, I wasn't speaking as much and stuff like that."

[53] The complainant recalled going to the washroom before going to her car. She realized while she was in the washroom that she needed a tampon from the car. Her trip to the car precipitated an argument with R.H., who was concerned that she was leaving the party and was going to drive. She said she got really angry at him for no particular reason and did not want to tell him her reason for going to the car because it was so personal, not the kind of thing a woman would discuss with her male best friend. She could not find a tampon in the car and the next thing she recalled was talking to N.B. and asking for a ride home, i.e. she had no recollection of how she got from the Jeep in the driveway to N.B.'s car a couple of houses away by the intersection. She next recalled approaching N.B., who was driving on the road, calling out to him and asking for a ride.

[54] There is external support for the complainant's story about not finding her tampon in the recitations from various witnesses about her general lack of awareness. She did not have her purse or her phone with her when she got in the defendants' car and it was her and R.H.'s evidence that she always had her phone with her. Both items were in fact found in her car the following day. R.H. himself had also failed to find either item when he looked for her phone in the complainant's Jeep after she had disappeared.

[55] The complainant gave the following explanation for why she wanted to leave the party:

Q: Because me and [R.H.] had just gotten in a fight.

Q: All right. And had you not been in fights with [R.H.] before?

A: I have but he was really upset and then I think I, the vodka started to really hit me and I got really upset and we weren't really sure why exactly we were upset and then I just wanted to be with [my boyfriend].

[56] R.H. said that he arrived at the party, early and sober and started drinking right away. The complainant did not arrive until around 10:30 (nobody was checking their watches or phones for specific times). She was sober on arrival, but started drinking right away. He had greeted her on arrival and she had a "26-er" with her. K.B. also said that the complainant brought a bottle of liquor with her; K.B. thought it was a forty-ounce bottle, though. R.H. was not with the complainant all the time, spending a lot of his own time at the beer pong table. From there, about fifteen minutes after the complainant's arrival, R.H. heard a commotion and looked up to see the complainant engaged in a chugging contest on the patio, gulping from a bottle of what appeared to be alcohol, a "26er" with clear liquid and a blue label. He watched for about three seconds and turned away while she was still chugging. K.B. said that she took a video of the chugging, but it was on Snapchat so automatically erased after a day. K.B. also said that this chug-off was with B.B., one of the defendants. She even testified that she recalled the complainant saying that B.B. would not win against her. By contrast, J.S. said the chugging contest was with "a guy I didn't know." This point demonstrates the inherent caution that must be taken with evidence generally, never mind the evidence of people who are drunk: there was, it seems, one chugging incident but three witnesses described the other participant differently, i.e. as a girl, as B.B., or as a male who was not B.B.

[57] According to K.B., the complainant's purpose in the chugging contest was to catch up with the other guests' alcohol consumption as the complainant had arrived late. K.B. also said that the complainant consumed most of her forty-ounce bottle in the contest, which does not conform to most of the other evidence about the complainant's alcohol consumption. K.B. said that the complainant then continued drinking, directly from the bottle, which did not seem to be mentioned as a drinking style by the other witnesses. R.H. noticed that the complainant continued to drink during the night, including three shots he saw her take after the chugging, and she became very intoxicated. He said that she was stumbling, had trouble speaking a straight sentence and at one point they had to sit together on the grass because she could not stand without leaning on him. He said that she could not really walk, that her sentences were choppy and she would switch from one topic to another mid-sentence. K.B. said the complainant was, "probably the drunkest I've ever seen her." She spoke with the complainant on the deck and the complainant said that she didn't really know what was going on.

[58] R.H. testified that the complainant becomes emotional and somewhat volatile when she drinks. On this occasion she was sad because she missed her boyfriend, who was at his home that night. She called her boyfriend while R.H. and the complainant were sitting on the grass. At the same time R.H. took the liquor bottle from her. She was crying and got no comfort from the phone call.

[59] R.H. testified that the complainant wanted to leave the party after her boyfriend refused to come for her and she wanted to go and sit in her Jeep, which was in the driveway. He had to help her walk to the Jeep. This is corroborated by the testimony of K.B. He went to take her phone away from her so that she would not pester her boyfriend and get more upset, but she got angry about that so he let her keep her phone. He retrieved the Jeep keys from the owner of the house, unlocked the Jeep, helped the complainant get in it and then gave the keys back to the homeowner for safekeeping, leaving the complainant's phone in her hands. He described the complainant as "not all there" at this point, a seven or an eight on a ten-point scale of intoxication.

[60] R.H. testified that the complainant told him at the party that she had done some cocaine. No cocaine was found in her system and the CFS toxicologist testified that it would be very unlikely for her to have consumed cocaine and to have it not show up on her toxicology screen done about sixteen hours later. A few days later, the complainant told R.H. that she had not in fact taken any cocaine but had consumed marihuana, which also did not show in her toxicology screen and also would be expected to show up in the circumstances.

[61] J.A. testified that the complainant went from being a bit tipsy when he arrived, but then drank a lot and went, "from a three to a seven really quick and then I seen her down a 26er of vodka I believe and really fast and I was impressed but it was, it was, it was awful, but she did that and that probably brought her up to a ten, and then I seen her throughout the night also drink like, well the rest of like the vodka." After the chugging incident J.A. said he saw the complainant hugging B.I. and B.B. and spoke to them, saying, "hey, guys, like she's really drunk, like chill out….Because I didn't want anything happen (sic)….Like I could, like I didn't want them like taking advantage of her drunkness (sic) or like her doing something 'cause she's drunk."

[62] Overall, J.A. said that the complainant had twenty to twenty-five shots of alcohol, not including the chugging. J.A. characterized the complainant as being a ten out of ten on the intoxication scale the last time he saw her that evening, before he heard she had left in a car; she was off-balance and slurring but she was making sense. The "making sense" assessment sounds incompatible with R.H.'s description of the complainant switching topics mid-sentence.

The Scientific Evidence About the Complainant's Level of Intoxication

[63] There were only two witnesses in this trial whose evidence was not potentially clouded by alcohol, namely the complainant's boyfriend and Mr. Brent Cahill of the provincial Centre of Forensic Sciences. I have titled this section "The Scientific Evidence About the Complainant's Level of Intoxication." Without meaning a jot of disrespect to Mr. Cahill, who I thought was a perfect witness, it might be better titled, "The Lack of Scientific Evidence" on that issue. As with scientists generally, Mr. Cahill's work and his conclusions were seriously constrained by the absence of scientific data. He considered a variety of hypotheses and performed various calculations for both the Crown and defence, but the value of those hypotheses is only as great as the strength of any underlying factual foundation.

[64] This was a case in which the evidence of the various participants' alcohol consumption, and their condition as a result, was entirely subjective and, as I have said, it was the evidence of impaired people about the condition of other impaired people. One lamentable circumstance in this case is that the complainant attended at the St. Catharines hospital within a reasonably short time period after the alleged assaults, but there was no qualified staff there to conduct the sexual assault evidence kit ("SAEK"). Even without the kit being done, nobody took samples of her blood or urine. I do not know why there was no staff available to conduct those examinations and take those samples, but it is deeply disturbing that in the largest urban centre in a region of about 450,000 people nobody was available for those purposes and seemingly nobody could be called in. Instead, the complainant had to go out of region to a hospital sixty kilometres away. She ultimately did not attend at that hospital until about twelve hours after the alleged assault, by which time the evidentiary value of her blood and urine samples had dropped very close to nil. Had the St. Catharines hospital been staffed to do the SAEK, or even if they had taken the blood and urine samples at St. Catharines, the timelines are such that there would have been a reliable, scientific record of her blood alcohol concentration. Whether that would have helped the Crown or the defence, we shall never know. The difference is that the defence bears no burden of proof in a criminal case.

[65] There was no issue with respect to Mr. Cahill's qualifications.

[66] In general terms, Mr. Cahill testified to the results of CFS analysis of the complainant's blood and urine samples. Those samples were taken shortly before 3 p.m. on 14 August, 2016, as I have said, around twelve hours after the incident, since the time of the incident is itself somewhat imprecise. Mr. Cahill testified that drugs are generally detectable for a longer time in urine samples so screening of urine is done first, followed by screening of blood based on the results of the urine testing. The urine screening was for a broader range of drugs than the resultant blood testing. The urine testing did not detect any of the typical range of street drugs, the consumption of which might impact on a person's behaviour, recollection, etc. That eliminated any suggestion of the complainant having consumed cannabis, cocaine, opiates and others at any relevant time.

[67] The urine sample detected ethanol at a concentration of 193 mg of alcohol in 100 ml of urine. That fact allowed no conclusion other than that the complainant would have had a blood alcohol concentration of at least 148 mg of alcohol per 100 ml of blood "some time" prior to the sample being taken. That some time would depend on when the complainant last urinated before the hospital urine sample was taken, a detail that, like many details in this case is unclear. Ultimately, the evidentiary value of the presence of ethanol in the urine is that it demonstrates that the complainant drank alcohol, one fact that nobody in this trial disputes.

[68] Mr. Cahill processed various hypothetical scenarios for counsel, using different amounts of alcohol consumed over particular periods of time. One of these scenarios resulted in a conclusion of a blood alcohol concentration of 330 mg/100 ml of blood at 1 a.m., based on a consumption of 20.2 ounces of 40% alcohol between 10 p.m. and 1 a.m. That figure is obviously dependent on having a reliable basis to support consumption of 20.2 ounces. The reliability of the 330 figure is also dependent on when the alcohol was consumed. Alcohol can only be absorbed into the system at a given rate meaning that if a large volume of alcohol has been consumed relatively soon before the relevant time, some, or even much depending on the time frame, will not actually have been absorbed by the relevant time.

[69] Other scenarios were put to Mr. Cahill. Using the number of drinks the complainant told the St. Catharines hospital she had, i.e. five drinks, her blood alcohol concentration at 1 a.m. would have been in the range of 35-65 mg per 100 ml of blood. To put that in context, for a driver the lower level would have no consequences and the upper level would result in a brief licence suspension in Ontario. Using seven drinks, the higher of the numbers the complainant gave to the Burlington hospital, her blood alcohol concentration would be in the area of 75-105 mg of alcohol in 100 ml of blood.

[70] I also heard evidence from Mr. Cahill about the likely impacts of different blood alcohol concentrations on drinkers of different tolerance levels. He advised that, while a novice drinker might be rendered unconscious, for a person with a high tolerance to alcohol (which would fit with the general description of the complainant's drinking patterns), at a blood alcohol concentration in the 300 range the tolerant individual, "may just show less marked signs of intoxication, for example a staggered gait, stumbling, falling or incoherent in speech but alert and awake."

[71] Mr. Cahill also spoke about the potential of alcohol to create disinhibition in individuals and on the potential for alcohol to impair memory, which he said typically occurs at a blood alcohol concentration of 150, does not occur in everyone does not occur in the same person every time and is most likely to occur if the blood alcohol concentration is rising quickly, such as rapid consumption on an empty stomach. The incidence and likelihood of such an alcohol-induced blackout is not predictable based on blood alcohol concentration. I note that Mr. Cahill introduced his answer on this issue with the precautionary words, "From the limited knowledge we have of memory impairment with alcohol…."

[72] Mr. Cahill said that when there is alcohol-induced blackout the person will be, "conscious, they can engage in behaviours, they can converse with individuals and respond to their environment, but when challenged later to recall the events that occurred over that period of intoxication they're unable to recall those events." The person can be talking and making decisions. Someone interacting with a person suffering from an alcohol-induced blackout might be aware the person was intoxicated but would not be aware they were in a blackout state. From the perspective of the person suffering the blackout, that person might later be unable to say if they suffered a blackout or were actually unconscious.

[73] The Crown also asked Mr. Cahill to calculate a maximum blood alcohol concentration a person could have had at 1 a.m. on 14 August, roughly the time of the car ride, if that person had a blood alcohol concentration of zero at 2:48 p.m. that same day, the precise time that the complainant's blood sample was taken. He said that the maximum possible blood alcohol concentration at 1 a.m. would be 275 mg of alcohol in 100 ml of blood. The obvious and inescapable problem with this answer, entirely valid as it undoubtedly is, is that we have no idea when the complainant's blood alcohol concentration actually hit zero. Obviously, the earlier on the 14th that the complainant's blood alcohol concentration hit zero, the lower her maximum blood alcohol concentration could have been at 1 a.m.

How Much Did the Defendants Have to Drink/Were They Intoxicated?

[74] Unlike the complainant, there was less detailed evidence about how much each of the defendants had to drink (or to smoke, as the case may be) the night of the party or how impaired they were. The one thing that seems clear is that N.B. was the designated driver and that he was probably sober throughout the night.

[75] R.H. testified that L.H., the back seat, driver-side passenger during the ride from the party, appeared sober on arrival. So was N.B. R.H. saw B.I. later in the evening and said B.I. had been drinking but showed no signs of intoxication. B.B. was also sober the first time R.H. saw him at the party. R.H. did not profess to have any ongoing awareness of the defendants' drinking patterns; he was more focused on the complainant. He did see N.B. and L.H. leave; N.B. was sober and L.H., "didn't stand out to me that he was drunk." He characterized N.B. as being a zero on the impairment scale and L.H. as being a four. B.I. did not stand out in terms of his level of intoxication, which R.H. said meant he could not have been more than a five out of ten. R.H. said he had no recollection with respect to B.B. or J.S.

[76] When asked to compare the complainant's level of intoxication with those of the defendants he had commented on, R.H. said there was "no comparison" and that, "she was hammered and could not function properly." Although he had drunk often with her, he had only seen her as drunk as that night on a couple of other occasions and her reaction that night was not comparable to how she reacted on other nights of heavy drinking, "like she's never that drunk where she can't stand without assistance, she can't talk." In cross-examination, R.H. attributed the difference to the fact that the complainant had chugged some of the alcohol.

[77] R.H. testified that the only person who stood out as being "overly drunk" was the birthday boy. The other evidence at trial suggested that the birthday boy had arrived at the party already high and sat and drank all night until K.B.'s parents came and took him to their house to sleep it off.

[78] K.B. testified that the four defendants plus her boyfriend and another boy were all smoking marihuana that night, "that was their thing". J.A. confirmed that B.B. was "smoking" and, "kinda like high." She confirmed the general information that N.B. was not drinking. She said he was a bit high but seemed aware. She said B.B. was sober but not "completely intoxicated". L.H. was very high. She could not remember B.I.'s condition. She said that J.S. seemed sober, which was in contrast to his own testimony. However, J.S.'s assertions that he was very drunk did come across as being situationally convenient in the context of the challenges he faced in cross-examination.

[79] J.A. rated B.B. as a 6-7 out of ten on the intoxication scale when he left the party; L.H. was a 7-8 and B.I. was "not sober at all." N.B. was sober.

[80] The precise time of the complainant's call or calls to her boyfriend is uncertain. In cross-examination, the complainant appeared to accept the reasoning that it must have been while she was in the Jeep, but I am more convinced by R.H.'s evidence that he overheard one call to the complainant's boyfriend while he and the complainant were sitting on the lawn. In any event, I shall deal with the complainant's boyfriend's evidence of the phone call in the time under the present heading rather than the following heading.

[81] The complainant's boyfriend testified that it was not unheard of for the complainant to call, while intoxicated, seeking a ride to his place. He rated her level of intoxication on those other occasions as a six or seven, on this occasion an eight. He chose not to go get her himself: he was already in bed and had been awakened by her call; he had no concerns for her safety as she was with a "good group of friends"; he offered to pay for a cab so she could come over.

What Happened Between the Complainant Getting in her Jeep and Getting in the Defendants' Car?

[82] From R.H.'s perspective, an undefined time passed, during which he had gate duty to make sure that anyone leaving the party knew they could not return as it was getting late. The complainant was still in her Jeep at this time. About five minutes after the defendants left the party, someone told him that the complainant had left. He was worried because of her condition and checked the Jeep but she was not there. He then went out to the sidewalk where he was told that she had gotten into a black car at the corner. He looked in that direction and saw the driver rear door of a Sunfire close and the car then turned onto Louth Street. Thinking that the complainant had to be in the car, he called her mobile phone, but got no answer.

What Happened in the Defendants' Car And at Monsignor Clancy?

[83] Two witnesses testified in court about what happened in the defendants' car on the way from the party to the complainant's boyfriend's house, namely the complainant and J.S., the fifth defendant whose charges were severed. For ease of narration, I shall deal separately below with the evidence of the defendants' version of events that was gleaned from communications between the complainant's friends and the defendants.

[84] As noted above, the complainant said that she walked from the Jeep to the dark car when she recognized N.B. driving. She asked N.B. for a ride, but he told her the car was full (which it was). She responded that she needed a ride and opened the driver's side rear door and got in and sat on somebody. She said she did not recognize them; she had not even paid attention to how many there were before she climbed in. She said she took a seated position on someone's lap, which is completely implausible given the size and number of people already in the back seat and the complainant's size. She then recalls putting her head back and closing her eyes. She did open her eyes at one point and see a yellow sign. She could not keep her eyes open, she claimed. The rest of her body felt numb. She was so drunk that she could not get up from the back seat. She could not recall saying anything. She remembered noise but not spoken words. She then felt her position change, with her head back and recalled seeing N.B.'s hair in front of his face and hearing laughing, after which her eyes closed again. She felt that her torso was now along something, like a back seat, and her legs were dangling. When she opened her eyes again she recalled seeing a dark figure with a hat (a photograph taken that evening shows B.I. wearing a cowboy hat). She was in the same position as the previous time she opened her eyes. She then felt something inside of her, in her vagina--she could not say if it was a finger, a penis or an object – and her eyes closed again. In total she felt something inside her on three occasions, although whether or not those occasions were separated in any way was not clear. When she next opened her eyes, after a period of time she could not estimate, she jumped up from the back seat of the car and ran away, "screaming and crying and I was telling them to get away from me. She ran to a nearby fence. She recognized N.B. when he came over to her, in a way that she took as meant to help her, as if he was bringing her something, but she screamed at him to get away. In cross-examination she accepted that N.B. was bringing her clothes and shoes. She saw other bodies around a car but she didn't know who they were. She noticed that her pants were around her knees and she had no shoes on. She said that all she knew was that she was in a parking lot. She did not know what was going on. Eventually, she saw the car drive away.

[85] The complainant testified that she had no recollection in the car of kissing L.H. or of him asking to kiss her or her asking to kiss him or of her backside being grabbed or being asked if anyone could do that or of having her breasts groped or being asked for permission to do that. She did not recall undoing her pants or asking for digital penetration. When asked how she would word a request for someone to perform oral sex on her, she said that she would ask for them, "to go down on me"; she said that she would never use the term "eat me". She would never ask for oral sex or digital penetration while on her period, nor would she have intercourse while menstruating. Her boyfriend confirmed that she was menstruating at the time and that she did not engage in intercourse while on her period.

[86] In short, the complainant testified that she did not recall asking for or consenting to any form of sexual activity in the car during the trip or after it stopped. She said that she did not understand that she could refuse sexual contact in the car because she was in and out of consciousness.

[87] The complainant compared how she felt that night to how she had felt on other occasions when she drank. "The fact that I don't remember things and that I couldn't sit up or I couldn't wake myself up just tells me how drunk I was, 'cause I, I've never felt like that before."

[88] The complainant said that she did not find any of the defendants physically attractive. She was emotionally and physically attracted to her boyfriend, who was substantially older, tall and well-built. His age was part of her attraction.

[89] The complainant's story varied over time. When she met with R.H. a few days after the event, she told him that she had drifted in and out of consciousness and that the defendants had started touching her when she lay down in the back seat. She said that each time she woke up there was a different guy on her, but that she wasn't saying N.B. had sex with her or that they all had sex with her, but she remembers two people having sex with her or B.I. having sex with her twice.

[90] J.S. testified to how he and the four defendants left the party and were driving towards Louth Street when they came upon the complainant walking in the same direction on the road, not walking very straight, with a slight stumble. When confronted with his police statement by the Crown, J.S. agreed he had called it a stagger and that he had told the police that the complainant "just wasn't right". She spoke to N.B. through the passenger front window and then jumped in the back seat, effectively sprawled over L.H., J.S. in the middle and BI on the passenger side of the car, through whose door she had entered. She gave an address to be taken to. He said that was the only thing she said. Her speech was clear and understandable. This does not reconcile particularly well with his later statement in cross-examination by counsel for N.B., where J.S. described the complainant as, "not out of it completely." He thought she was awake and aware throughout. This does not reconcile well with his agreement in cross-examination that her behaviour was really odd and that it was consistent with being "over-the-top drunk".

[91] J.S. said that he looked over soon after and the complainant and L.H. were kissing and she had her hand up to the right side of L.H.'s face. He agreed that he had not given this level of detail to the police in his witness statement, but I must recall that sauce for the goose is sauce for the gander: various of the Crown witnesses provided more comprehensive descriptions of events in court than in their police statements.

[92] He then saw her unbutton her jeans and soon after L.H. put his hand under her jeans as they continued to kiss. It all seemed mutual to him. He heard her say "stuff like eat me out". It was unclear if this was a direct quote or J.S.'s way of wording that request. He did not think it was directed at any one of them in particular. A bit further into the drive J.S. said that L.H. took his hand out and B.I. inserted his hand. Throughout this the complainant was just moaning. After that, J.S. said that the complainant's shirt "ended up being brought up over her chest", leaving her chest exposed. He did not say how or by whom her shirt was removed. He went on to say that B.B. reached over from the front passenger seat and grabbed the complainant's breasts. Soon after that, they arrived at the school. They had not stopped anywhere en route.

[93] On arrival, J.S. said that L.H. got out on his left and he himself got out to go to the washroom with B.B. He said that the complainant, awake and alert, moved over towards BI, who was on the right side of the back seat. On J.S.'s return he saw B.I. standing with his pants down and one of the complainant's legs on either side of him. B.I.'s buttocks were moving back and forth and the complainant was not moving. J.A., B.B. and L.H. just stood there waiting. When he looked over B.I. was backing away from the car and the complainant was by the rear passenger door as if she had just gotten up. He noticed her walking away from the car with her underwear and pants down. She seemed upset, which confused J.S. in light of her behaviour in the car. He then saw N.B. walk over to her, holding some of her clothes; he did not hear the conversation between them. He last saw her walking down the school pathway that led away from the direction of the complainant's boyfriend's house. They drove off and went to B.B.'s house as planned.

[94] Under cross-examination by the Crown, J.S. agreed that he had characterized the complainant's level of intoxication as an eight or a nine. He agreed that the complainant had never vocalized consent to any form of touching to any of the defendants other than the "eat me" comment.

[95] J.S. testified that he specifically noticed that the complainant's eyes were open at the beginning of the ride, but said he was not watching her face the whole time.

[96] R.H. agreed that there were a lot of out of the way areas on the route between the party and the complainant's boyfriend's house where the defendants could have pulled in for the purpose of doing anything improper with the complainant rather than taking her to the Monsignor Clancy School parking lot directly in front of her boyfriend's house.

What Happened After the Defendants Left?

[97] The complainant then ran away, shoeless, down the street, calling out for help, not knowing what direction she was going in or where she was. She stopped a car at a stop sign and kept repeating her boyfriend's address to the man who was driving. She arrived at her boyfriend's home after "a very short time". She did not recall if the house door was locked or unlocked (her boyfriend said it was generally locked, but there was a spare key accessible by the back door). She crawled to her boyfriend's bedroom and wakened him. As with her memory of what happened in the car, the complainant's memory of events at her boyfriend's house is much more fragmentary than his. For example, she remembered him checking to see if her tampon was still in place, but not that he left her at the house to go consult in person with her mother over what to do. She thought she was awake when he checked the tampon but, "was closing my eyes in and out," and she did not react when he did it. He testified that she was not awake. She did not remember vomiting at her boyfriend's house, which he testified to.

[98] The complainant's boyfriend said that the next thing he realized after the last phone call from the complainant was when he awoke to find her sobbing and apologizing in his bedroom doorway. He did not sugar-coat any of his description of what happened in the ensuing period, not even to the extent that parts of it may have made him seem somewhat brusque, at least briefly. She told him something had happened, but she could not tell him what and it was only when he yelled at her to find out what she was talking about that she told him that she had been raped, by five guys. He peppered her with questions and then stepped away briefly because he was so angry at the idea of this happening. The complainant's story changed in terms of the number of guys and the type of vehicle. The error about the number of assailants is not particularly troubling; there were five men in the car. The description of a van and then an SUV is not a troubling divergence; mistaking a Sunfire for a van or SUV is quite perplexing as the only thing they have in common is four wheels.

[99] The complainant's boyfriend's said her level of intoxication was an eight out of ten, worse than other calls he had received from the complainant when she was drunk, but not "crazy worse." His broader characterization of her state was as follows:

Because the questions that I asked [DR], nothing made sense, she couldn't give me an answer, she didn't know and everything I asked she had no idea....She was definitely not sober...Just the way she walked, the way she talked, she was stumbling, noting, like I said her words were gibberish, nothing really made sense, couldn't put two and two together or anything.

[100] While he was trying to reach out to R.H., the complainant's boyfriend noted that she was lying on the floor; her sobbing had stopped and she was quiet. She appeared to be sleeping. It occurred to her boyfriend that the complainant was menstruating so he decided to check if her tampon was in place, so he unbuttoned her pants and checked, finding that there was no tampon present. She did not respond to this intervention on his part. He woke her up, which took some effort.

[101] The complainant's boyfriend testified that he consulted with his sister and went by himself to the complainant's mother's house to discuss what to do. It was agreed that he would meet the complainant's mother at the St. Catharines hospital, which he did, despite the complainant's strident opposition. He spoke about the complainant's behaviour on the way out of his house to the hospital: on the way down the hall she crawled to the bathroom and vomited; her legs were almost limp. He stayed with them for a short while before leaving.

[102] The complainant's boyfriend testified that after the event the complainant, "was just always scared, very edgy and very on edge, you'd touch her the wrong way and she would jolt, she'd wake up from nightmares in the middle of the night, I slept with her many days after that and she'd hardly sleep, always be awake."

[103] The complainant's mother stayed with her for her entire time at the hospital, but that hospital was not able to conduct the sexual assault examination, so she was told to go to a hospital in Burlington, which they did later that day after the complainant had a couple of hours of sleep. The complainant told the St. Catharines hospital staff that she had had five drinks that evening; she told the Burlington hospital that she had six or seven. At the time of the complainant's attendance at the Burlington hospital, her blood alcohol concentration (B.A.C.) was zero. It was impossible to determine when her B.A.C. hit zero, just that it was zero at the time the test was done, at 2:48 p.m.

The Private "Investigation" and the Messaging Evidence

[104] The complainant's friends, J.A., K.B. and R.H. started making inquiries after receiving a message from the complainant's boyfriend announcing that the complainant had come home saying she had been raped "by three guys". At the time J.A. and R.H. received this message, they were eating a post-party meal at a Macdonald's restaurant. Soon after, on their walk from the restaurant to J.A.'s home to spend the night, a car driven by N.B. pulled over and offered them a ride. This was a small SUV, a different car than the one at the corner outside the party. J.A. and R.H. got in the back hatch. L.H. was in the front passenger seat and three other students (none being a defendant) were in the back seat.

[105] R.H. testified that N.B., who was driving the SUV, turned to the front passenger, L.H., who had been with him in the Sunfire with the complainant earlier that morning (it is now past midnight) and said, in an excited voice, "Yo, [L], we should tell them", to which L.H. responded in a quiet tone, "No man, like shut up, don't talk about it." On further inquiry, N.B. said, "It's not really my business or anything but I was just driving but there was one girl and a car full of guys and we all pretty much got some." Hearing this, and putting two and two together, R.H. and J.A. told N.B. to pull up a few houses away from J.A.'s house, with the intention of confronting N.B. and L.H. about what had happened. J.A.'s description of the discussion in the SUV was generally consistent with R.H.'s description. J.A. described L.H. as "almost zombie like he was asleep."

[106] There is some divergence about what happened outside J.A.'s house. It is clear that N.B. came to the back to open the hatch for J.A. and R.H. to get out. R.H. said J.A. grabbed N.B. by the arm to move away from the car and R.H. himself told all the other occupants to "get the fuck out of the car", which they did. According to R.H., he, J.A., N.B. and L.H. all spoke at the back of the car, with the three other boys not being familiar with what was going on. When confronted with the allegation of rape, N.B. responded that there had been no rape, just that the complainant had asked for a ride and they had just driven her home. When challenged as to the truthfulness of their denial, "they" said that all that happened was that the complainant had asked B.I. to "eat her out", so he did. N.B. said "that's all that happened" and L.H. said "We didn't do anything it was all [B.I.], [B.I.] was the only one that did anything." When further confronted about how it went from being a ride home to "eat me out", L.H. responded that once the complainant had laid down in the back seat, B.I. started touching her breasts and her backside, but there was nothing more than that.

[107] In J.A. 's recounting, it was only N.B. and R, one of the back seat passengers, who got out of the SUV near his house, that selection being made because they were the two people in the SUV that they knew the best. At the end of the discussion they told R to let them know if he heard anything further during the drive home from J.A.'s house.

[108] The next day, after speaking with the complainant's boyfriend, J.A., K.B. and R.H. drove to Niagara Falls and picked N.B. up at his house. There are divergent versions of precisely what happens next, but I am not convinced that the differences make a difference other than to remind me of the general frailty of memory. R.H. testified that they picked N.B. up and then all drove to a remote hang-out spot near an abandoned bridge. K.B. was unsure if they went to a Macdonald's first or directly to the bridge. Later on she thought the Macdonald's was later. J.A. said they parked with N.B. at the high school before going to the bridge and dropped N.B. off at home before going to the bridge to meet L.H.. K.B. said that before they all got to the bridge, N.B. told them that everything that happened in the car was consensual and that, "he wasn't going to stop his boys from getting laid." J.A. said that N.B. was an emotional mess.

[109] K.B. said that at the bridge N.B. said that the complainant threw herself at the boys when she was in the car, that she wanted them to "eat her out" and that she was okay with them touching her as they were. N.B. told them the complainant did not seem that intoxicated. She said that L.H. was very upset about the allegations against them. He told them that he was very intoxicated and that he could not be 100% sure what happened. K.B. testified that at one point she heard N.B. say, "if only she was conscious", at which point she stopped all the ongoing conversations and asked him what he meant, albeit more colourfully than I have put it. She said that R.H. lunged to get at Nathan and she stepped in between them. She said that N.B. responded that he hadn't meant it that way, that the complainant was obviously awake.

[110] R.H. said that all five of them, he, K.B., J.A. and the two defendants N.B. and L.H. spoke at the bridge. L.H. denied that he would do something such as was being alleged, saying he was, "not a monster, I would never do that, all I did was play with her boobs and ass but I asked permission first." This was obviously a divergence from their version the night before. N.B. said that he was driving and he wouldn't do anything like that because he has a girlfriend and isn't like that. N.B. then admitted that B.I. actually had sex with the complainant, but it was only very brief; they had pulled into the parking lot at the school across from the complainant's boyfriend's house to allow for that because the complainant was asking for it and wanted to hook up.

[111] R.H. testified that one comment he would not forget was, "I knew we were fucked when she came to and said who the fuck are you?" There was a particular ring of truth to that testimony by R.H. because he mentioned that he had to walk away for thirty seconds in order to make sure that he did not "react negatively" because he was very angry. This is likely the same comment to which K.B. referred, but the description is not identical.

[112] I am confident that N.B. made this utterance (there is another version of it, along similar terms elsewhere in K.B.'s evidence). However, I have to keep in mind that even that utterance does not necessarily reflect guilty intention; it could be reconciled with N.B. thinking everything was consensual and then being taken aback. It is, at a minimum, one very troubling piece of evidence.

[113] According to R.H., L.H. also said that while the complainant was lying across them, everyone was touching her but they all asked permission first.

[114] J.A. said that it was only him, R.H., K.B. and L.H. at the bridge, i.e. that N.B. was not there at that point. He said that L.H. said that he might have fingered the complainant and she might have given him fellatio. L.H. told them that he was really drunk and didn't remember much and that they should speak to his friends about what happened.

[115] Later that day, at the request of her boyfriend, K.B. had a meeting with the four defendants without R.H. or J.A. there. At that meeting N.B. did most of the talking. He said the complainant had consented to sex with B.I. B.I., for his part, just nodded and was mostly quiet, other than saying he wouldn't have had sex with the complainant if it wasn't okay. L.H. said he didn't remember much.

The Messaging Evidence

[116] Over the past twenty years, the internet and social media have changed the way we live and communicate and this trial was no exception. Starting in the wee hours of 14 August, 2016 the complainant's boyfriend and R.H. and J.A. started using those media in their efforts to figure out what was going on. The private investigation used texts and similar messaging media to communicate with the defendants and the defendants used those media among themselves.

[117] For ease of flow I have included selective summaries of those communications as an appendix to these reasons. Some observations about the messages appears here.

[118] The parties each rely on the messaging evidence for their own purposes. It is properly admissible on both sides. To the extent that any particular message is admissible against any particular defendant, and keeping in mind that the reliability and weight to be given to any particular piece of evidence varies, those messages recount that sexual contact took place, that various of the defendants had varying degrees of recollection of what happened and that N.B. was to a significant extent the collective memory of the group. This case is not about sexual contact taking place or not. The evidence, including the DNA evidence clearly shows that to be true. It clearly shows that there was sexual contact between the complainant and L.H., B.I. and B.B. The issues in this trial revolve entirely around consent, capacity to consent and reasonable belief in consent.

[119] The messaging evidence and the direct comments by some of the defendants to J.A., K.B. and R.H. may or may not reconcile perfectly with other evidence, a factor that plays into how reliable or perhaps self-serving those utterances may be.

[120] It is not unfair to characterize some of the messaging and similar utterances as potentially self-serving. A trier of fact must consider the entirety of that evidence, both favourable and unfavourable, but is not required to give equal weight to the good and the bad; as with all evidence the trier of fact can consider and reject individual pieces of evidence. There is also the possibility that the messages and other utterances reflect collusion on the part of the defendants. There was certainly the possibility of collusion in terms of time-lines and off-line conversations and references in terms of getting their story straight. All of these considerations come into play in deciding how much weight to give to any particular piece of evidence and whether or not that evidence helps the Crown or the defendants, including whether or not that evidence with all the other evidence satisfies the Crown's burden to prove guilt for each defendant beyond a reasonable doubt. However, I also have to be alive to the possibility of particular utterances being taken out of context or not being consistent with the general tenor of the comments.

[121] For the most part, the messages refer to the contact being consensual, to various of the defendants being seriously intoxicated themselves and to shock, surprise and at times anger on their various parts at the idea that the complainant felt she had been taken advantage of. These utterances rank high amongst those that have to be approached cautiously as potentially self-serving, but there are other comments that could reflect genuine angst on various defendants' parts, such as feeling torn apart about whatever happened, especially given how drunk they were, concern for the complainant and confidence that, if the complainant had one-hundred percent recollection all would be okay because they were confident that their recollection and hers would match. Feeling "torn apart" is not necessarily evidence of criminal conduct.

[122] There are comments by N.B., the driver, the only sober one it appears, in which his anger or frustration at being accused of sexual impropriety is visceral. Applying the Crown's theory at its highest, including the Crown's theory of third party liability, one of his comments about it not being his job to stop his mates from "getting laid" would go some way to establishing criminal liability. On the other hand, if the sexual contact in the car was consensual, or was believed to be consensual, his comment is merely crass, not criminal.

[123] As I said earlier, there is evidence of the defendants communicating in person rather than via text; obviously there is no record of any discussion at any such off-line meeting. There is reference in K.B.'s evidence to the effect that she told the defendants to get their stories straight, but I note that she initially said that was something she might have said and two pages later she says consecutively that she was telling them to do that and then that she was definitely telling them to do that. Later on, for a reason K.B. could not explain, she told the defendants the exact opposite, i.e. that they should not rely on N.B.'s recollection as the only sober person in the car and should, "start thinking for yourselves". K.B.'s role in the case was complicated as she was caught between her best friend, the complainant, and her boyfriend's best friends, the defendants, and her amateur detective role did not necessarily lead to greater clarity about what went on. I also note that it was K.B. in her detective role, not any of the defendants, who suggested that discussing these matters by text might not be prudent.

[124] In assessing the evidence of what the defendants had to say, I do have to take into account their ages. It was suggested to me by defence counsel, albeit not in these precise words, that these four grade-eleven boys were hardly the Kaiser Soze of criminal conspiracy in terms of their sophistication. That point is not entirely without merit, at least insofar as it relates to issues about their post-incident discussions. I also note that I cannot disregard K.B.'s role in some of the utterances by the defendants. For example, at times K.B. knowingly planted misinformation in her discussions with the defendants, in order to see if their stories changed. It is not entirely implausible that a defendant who was drunk, presented with a contrary "fact", might start to doubt his own recollection even if that original recollection was correct. Any lack of sophistication on the defendants' part is not at all relevant to the issue of whether or not the alleged offences occurred; the offences alleged are crimes of pure opportunity for which no sophistication whatsoever would be required.

Conclusions With Respect to Witnesses

[125] I have placed some comments about the evidence in with the narrative as it fits better there. In general terms, I found R.H. to be a reliable witness. I noted that he was willing to say if he was not sure at times rather than guessing the answer, a strength not possessed by all witnesses. Although it was put to him that he was trying to exaggerate the complainant's level of vulnerability or lack of consciousness, I found no basis to reach such a conclusion. In the totality of his evidence I am not troubled by the fact that some of his observations at trial were not in his police statement, such as the fact that the complainant had to sit down on the grass because she was so unsteady. I note that even when witnesses are told to give as much detail as possible, they will often omit details either because they are unfamiliar with the process or the importance of a comprehensive narration or because they simply forget in the moment. Here, for example, the police statements were taken about a month after the event. I also note that R.H. contextualized the episode of sitting on the grass alongside the complainant calling her boyfriend. I also note that his evidence was not always favourable to the complainant in the sense that it portrayed her as being at times mercurial, even volunteering that she had once gotten involved in a physical altercation at a prom when she was drunk. These are not the characteristics of a witness bending over backwards to portray a friend in a misleading or overly favourable light.

[126] I accept that the complainant's evidence is not without its issues, both in terms of internal and external inconsistencies. These have required careful consideration on my part. No purpose is served by cataloguing them, but one example is the divergence between what she told the hospitals she drank and what she testified to at trial. Her cross-examination by Ms. Wilhelm about why she said what she said to the hospital staff was certainly not the complainant's finest hour. Neither was her assertion that she had "started to" sober up by the time she was at the Burlington hospital, a characterization that is hard to reconcile with a blood alcohol concentration of zero. Neither was her reconciliation of some of her testimony with her answers to the sexual assault examination kit questionnaires. In relation to the last item, however, I do have to consider that the complainant's antagonism to the whole idea of being taken to the hospitals against her will may have affected how much exactitude she applied to answering the questionnaire. While that alternative explanation may appear like speculation, I think that it rises beyond that on all the evidence at trial.

[127] An example of a possible external inconsistency can be found in her evidence that she crawled to her boyfriend's room and his evidence that she was upright when he woke. At the same time, certain parts of the complainant's evidence were very persuasive. For example, it was put to her that a comment in her police statement implied that she had been reluctant to go to the police despite the advice of family and friends because she was concerned about getting a reputation for fooling around with multiple guys in a car. She countered that the reason she did not want to pursue the matter was because disclosing the fact that she had been unconscious and had been taken advantage of would cause people to look at her as "weak or broken". That sounded true.

[128] It is clear that the complainant's level of detail relating to events at the party and relating to her attendance at the two hospitals the following morning and afternoon is greater than her recollection of the events in the car, although I would say that her recollection of the hospital experience is not remarkably solid either. I also note that the complainant's memory was already somewhat faulty before she even left the party. For example, she had no recollection about arguing with R.H. when he wanted to take her phone away while she was in the Jeep, an event that he described convincingly and which I am sure happened. She also had no recollection of having telephoned her boyfriend for a ride home, although I note that in cross-examination she agreed that she remembered talking to her boyfriend and him suggesting she take a cab home. Whether the complainant is telling the truth or not, I do not consider this discrepancy to be alarming in and of itself. The complainant arrived at the party sober. It would make sense that her recollection of details would be strongest for that period, potentially declining over the course of the evening to the extent that her level of intoxication increased and improving over the course of the next day to the point of her second hospital visit, by which time her blood alcohol concentration had dropped to zero. I also note that the party was a happy, celebratory event with her best friends (up to a point), descending into melancholy over the absence of her boyfriend (by all accounts) and, by her account, leading to a traumatic event. A memory pattern of that nature in those circumstances would not seem shocking.

[129] On a superficial level, one might find it odd, as was suggested at trial, that the complainant, having just allegedly been sexually assaulted in a car would then willingly get in a car with a single male in order to be taken to a place of safety. However, the danger in that line of thinking is that, it seeks to imprint the likely behaviour of an entirely calm, entirely rational person who has not been the recent victim of significant emotional trauma on a person who does claim to have been so victimized. What is "normal" for the purpose of assessing the credibility of a witness's story and actions is tremendously variable, dependent on countless variables relating at a minimum to factors such as the precise circumstances, the witness's personality, intoxication, etc. It might also be argued that the complainant's ability to get to N.B.'s car from her Jeep in the driveway is hard to reconcile with her supposed mobility limitations a relatively short time earlier, but any analysis of whether or not her relatively short trip to N.B.'s car undermines the characterization of her lack of physical and mental acuity at the time would have to also take into account the complainant's impulsive and mercurial nature while intoxicated, about which there seems no doubt and her joint motivation to get away from R.H. with whom she had argued and get to her boyfriend, who had declined to come pick her up.

[130] There is a divergence between K.B.'s evidence and R.H.'s evidence about the size of the bottle the complainant was drinking from. K.B. said it was a forty-ounce bottle, while R.H. said it was a twenty-six ounce bottle. I favour his recollection because he actually kept the bottle after that night and held onto it for a while before disposing of it.

[131] I must approach K.B.'s evidence with some caution because she admitted that she had read newspaper accounts of the other witnesses' testimony before she testified. However, I note that newspaper accounts of trial testimony are necessarily selective and there was no particular point of correlation between the evidence of R.H. and the evidence of K.B. that was put to her in cross-examination or raised in submissions. Newspaper coverage of trial proceedings is necessarily only a small portion of the evidence. I also note that K.B. played a double-game with the defendants, which does not necessarily undermine her credibility, but she also admitted to playing a double-game with the police by withholding, "some information about group chats and text messaging for sure."

[132] I also note that K.B. said initially that J.A. was at the party from about 5 p.m. to help with preparations, which contrasts with J.A. 's own evidence: he said he arrived at 10. As it happens, K.B. contradicted herself within a few pages by saying that J.A. arrived around the same time she brought her boyfriend to the party. I doubt that either of her versions actually matches J.A.'s version. All-in-all, K.B. is the Crown witness who raises the greatest concerns.

[133] There were also implications in the cross-examination that the complainants' friends had spoken amongst themselves more often than they testified to. There is no basis for me to reject their denials; indeed, the answer given by some, namely that it was not a pleasant topic to discuss makes perfect sense. The remarkably tight time-line of the police interviews would also have made collusion during that period challenging.

[134] The complainant's boyfriend came across as a very focused, very down-to-earth and very matter-of-fact person. He was one of the few people involved in what happened that day who were entirely sober. There was nothing in his evidence that came across as over-reaching, argumentative or implausible. He was cross-examined at length. His answers, such as his explanation for why he sought confirmation of the complainant's story, were plausible, as was his explanation for why he was not bothered by the complainant's story that she had flagged down a stranger's car after the alleged assaults.

[135] There were some discrepancies in J.A. 's evidence. As with any witness there are discrepancies and there are discrepancies; some are of no significance. Others may be greater cause for concern. In the former category is J.A.'s evidence about getting to the party around 10 p.m., he thought in company with R.H. In the latter category is his evidence that the birthday boy was about a five out of ten in terms of intoxication when he arrived. This is hard to reconcile with the evidence of others which left me with the impression that around that time the birthday boy was almost comatose. Subject to relatively minor issues, however, I noted that J.A. came across as sincere and genial and appeared to put real thought into his answers. I found no change in his tone from examination in chief to cross-examination. In cross-examination his answers came across as reasonable and respectful. His response to the suggestion that he was perhaps overly forceful outside at the back of the SUV outside his house was entirely believable. His characterization of his own approach to drinking presented as entirely genuine; in addition, it is corroborated by K.B.'s characterization of his approach. It is hardly the kind of issue that witnesses would think to collude on. Overall he came across as fair, at times even complimentary, to the defendants and as having no agenda against them.

[136] It was suggested by one of the defence counsel that J.S. "tried his best" as a witness. I am sensitive to the difficult position J.S. was in, as one of the group of five friends in the car, himself a defendant in the criminal charges, who was hived off by the Crown and put, for a period of time, in the position of being an anticipated Crown witness against his friends, only to become a defence witness. I appreciate that his youth would make that a particularly difficult situation to be in. However, I am more inclined to the Crown's view that, given the rather different flavour of his responses in cross-examination by the Crown compared to his examination in chief or his cross-examination by various defence counsel, he came across as a witness who actually had a horse in this race. His various answers about not remembering certain events that would have happened within inches or at most a foot or two of him were not impressive.

[137] At the same time, I cannot entirely dismiss J.S.'s evidence out of hand. I think that to do so would be unfair for parts of his evidence at least came across as plausible and balanced. He gave individualized assessments of the defendants' level of sobriety, which like all the Crown witnesses' assessments were inherently subjective and, like the Crown witnesses' evidence, were the evidence of a drunk person assessing the sobriety of other drunk people. His assessments of some of the defendants' level of intoxication ranked them as more sober than some of those defendants' utterances after the fact. Also, by way of example, only, I think his description of how the complainant got into the car and how she was positioned is more detailed and more plausible than her description, which seems very hard to reconcile with the size of the car and the size of the four people squeezed into its back seat.

[138] I do not have direct evidence from any of the defendants but the law is clear that I must consider the entire content of the communications the Crown has entered in assessing the totality of the case, that is to say I must consider not only what the defendants said that potentially hurts them, but also what they said that might be of assistance to their arguments.

[139] That is not to say that such evidence is necessarily of the same value as evidence heard from live witnesses in court. There are various ways in which evidence can be measured at trial, including the condition of the witness when making the observations, the general plausibility of the evidence, the existence of internal conflicts in a witness's evidence and the existence of external conflicts, i.e. discrepancies with other witnesses. The role of cross-examination by skilled counsel can never be under-estimated in the process of measuring evidence. Simply put, some of the evidence in this trial has been tested vigorously in cross-examination. Some has not.

Conclusion

[140] As I said near the beginning of these reasons, the burden is on the Crown to prove any criminal allegation and to prove it beyond a reasonable doubt. That is as true in this case as in any other. It is a high burden. It is always a high burden. It is a particularly difficult burden when the case is of a "he said/she said" nature. Intoxication on the part of the witnesses does not make the Crown's burden easier. Indeed, in the typical case, even a "he said/she said" type of case, one can usually say with confidence that at least the participants know precisely what happened. Even that is not true here.

[141] In determining whether or not the Crown has met its burden, a trial court must assess all of the evidence in totality. It is the overall tenor of the evidence that matters, not generally the odd inconsistency here or there. There could be nothing more peculiar than total consistency in a criminal trial or for that matter in any sphere of human affairs. There are various inconsistencies or peculiarities or disconnects in the evidence relied on by both sides in this case. None of those individually matters.

[142] The issues here focus on consent:

A. Was the complainant capable of giving consent, i.e. understanding the nature of the acts in the car and aware that she was entitled to agree to or reject them. This is an area in relation to which judges have come under criticism in the past, but it must be remembered that a drunk person can have the required capacity to consent to sex. A person can even be quite intoxicated and still have that capacity. In other words, the cognitive capacity required to consent to sexual activity is not high. Ultimately, on this issue the question is whether or not the Crown has proved beyond a reasonable doubt that the complainant lacked that limited capacity.

B. Did the complainant actually consent, keeping in mind that this is a purely subjective test? Has the Crown proved her lack of consent beyond a reasonable doubt?

C. Did the defendants reasonably believe in the existence of consent, keeping in mind the considerations set out earlier in these reasons? Has the Crown proved the absence of an honest belief in consent beyond a reasonable doubt?

[143] In her submissions, Ms. Wilhelm said that she did not need to address the credibility of the Crown's witnesses, only the reliability of their evidence set against the standard of reasonable doubt. There were certainly questions put to the Crown's witnesses challenging both their credibility and their reliability and submissions on credibility were made by other counsel. That observation is not meant as a criticism. It is counsel's role to advance such arguments as are required for a vigorous defence of their client and it is unavoidable that some of those suggestions will be distasteful or even at times hurtful. I do, however, see very little traction for the challenges to the complainant's credibility here (or for that matter the credibility of most of the Crown's evidence). I think that looking at all of the evidence at trial and picking and choosing that which I accept on a reasoned basis and that which I do not accept, it is improbable that the complainant subjectively consented to sex with the three passenger defendants. I do not see the implausibilities in her behaviour that were argued by the defence before me. It seems to me that, intoxicated as she was, she was a woman on a mission, which was to get away from the unpleasantness she had just gone through with one of her best friends, R.H., and to get home to her boyfriend. That mission caused her to act impulsively in forcing her way into the defendants' car to get to her boyfriend's home when he would not come for her. That impulsivity cuts both ways: it demonstrates the impact of alcohol on her decision-making, but it also demonstrates her capacity to come up with a plan to achieve her desired objective of getting home to her boyfriend, as well as the, perhaps limited, physical capacity required to catch her ride.

[144] I find the complainant's expressed reasons for disinterest in the young men in the car to be relevant, admissible and of more than trifling weight. That, however, is only one piece of evidence with respect to whether or not the Crown has proved a lack of consent beyond a reasonable doubt. The fragmentary nature of the complainant's memory of what was happening in the car does weaken the Crown's case.

[145] Applying the complainant's subjective perspective when she got out of the car at the school, I am not troubled by her evidence that she did not know where she was. The fact that she ran out onto Sullivan Street (as confirmed by J.S.) rather than onto Collier where her boyfriend lived across the street, strikes me as more compatible with a genuine sense of trauma than with the implication of defence counsel that she needed time to conjure up an explanation for her condition when she showed up at her boyfriend's house after supposedly having various degrees of consensual sex with three young men in the back of a car. Her flagging down a car occupied by a single male even after that alleged trauma may seem imprudent in the cold light of day but would look very different in light of her perception of what had just happened. The questions about the driver not following up or calling the police or taking her to the door struck me as entirely speculative; those suggestions are of no weight whatsoever. Her behaviour at her boyfriend's house after the event is consistent with her narrative of what she perceived had happened to her.

[146] I am satisfied that the complainant had a lot to drink that night. The problem lies in the fact that "lot" is a very imprecise term. I believe that it was more than she reported to either of the hospitals, but I recognize that the Crown's evidence seeking to quantify precisely how much she drank suffers from the very real limitations of impaired people judging the impairment of another impaired person in the absence of any reliably precise measure of how much the complainant drank. The estimates in this trial varied widely. That being said, notwithstanding the real issues with the precision of the Crown's witnesses on the level of the complainant's alcohol consumption, it is highly probable that at some point she was within the range established by Mr. Cahill within which an alcoholic blackout could occur, a circumstance that could generate two very different perspectives of what happened in the car for her on the one side and for the defendants on the other.

[147] Is there a possibility that the complainant actually was unconscious in the back of the car and that her inability to consent would have been apparent to the defendants? Yes, there is that possibility on my reading of the evidence led by the Crown. However, there is a competing narrative, namely that presented by the defendants in the course of the private investigation by J.A., K.B. and R.H. On one level, that competing narrative has problems. First, it appears to transmogrify somewhat from the first explanation that largely reflected only BI being involved with the complainant to a broader involvement of three of the youths directly with her. Second, part of that narrative includes N.B.'s eye-raising comment to the effect of "I knew we were fucked when she woke up", although that itself is not determinative. Third, that competing narrative has not been examined with the same rigour of cross-examination as the Crown's case so it cannot earn the same weight as direct evidence would. The admissibility of those utterances is one thing; the weight to be given to any piece of evidence is more nuanced.

[148] Nonetheless, the comments and texts attributed to the defendants cannot fairly be dismissed entirely out of hand. There is a point where one of the youths insists that he is not a monster. While there are bits and pieces of the various communications that either Crown or defence could cherry-pick for their own emphasis, a full reading of the messages, ideally distilling out some of the mischievous meddling by K.B., does leave one wondering what a sixth, fully sober, entirely detached occupant of that small car would have perceived that morning. The idea of collusion in the messages is always a possibility, but I suspect such collusion would involve a greater degree of sophistication than these youths possessed. Perhaps more important, even a mildly sophisticated fabricator of exculpatory messages would have left out many of the pieces including apologies, professions of impairment and the like. In short, as appropriate as it is to diminish the weight of the messages because they have not been tested through cross-examination, their content cannot be ignored entirely.

[149] At the end of the day, I am left with these conclusions:

A. As an observer of how this regrettable narrative played out over two weeks of testimony, I do not believe that the complainant has anything to blame herself for; she has her recollection of how events played out that morning and her recollection may very well be the true narrative. She has had the courage to come forward and to run the gauntlet of a criminal trial with dignity.

B. Ultimately, though, the standard of proof I must apply as a judge in a criminal trial court is an extremely exacting one. Any belief I or anyone else may have about how the complainant's version may very well be true, or may be likely or may be highly likely is not the ultimate test. I am entirely satisfied that there was no effort to mislead this court on the part of the Crown's witnesses, but that is not the ultimate issue. Any concerns I may have about either the nature, format, content or limitations of the exculpatory evidence are also of themselves not determinative on all the evidence in this trial. I am not called on to decide whether her version is more probable than the defendants'. The ultimate issues here are whether the Crown has proved on the totality and quality of the competing evidence before me, beyond a reasonable doubt, the absence of consent or the inability of the complainant to give meaningful consent and the absence of reasonable belief in consent on the defendant's part. I am not satisfied that the Crown has achieved that very high burden. On the evidence before me convictions would be unsafe. The charges are dismissed.

Released: 4 August, 2018

Appendix to Reasons in R. v. N.B., B.B., L.H. & B.I.

Selected Text and Social Media Communications

Some of the relevant messages are as follows:

14 August at 2:16 p.m.: K.B. asks B.I. what happened and he says he does not know, that he doesn't even remember most of it.

14 August at 9:48 p.m.: N.B. tells L.H. they need to get everyone together.

15 August around 1:45 p.m.: L.H. asks N.B. "Should I say u said that u remember me asking her to suck my dick but u don't know if she accually (sic) did", to which N.B. answers, "yea" and L.H. responds, "Cause that doesn't sound bad at all."

16 August around 3-5 p.m.: L.H. says he called in sick to work because he feels horrible still. He thanks K.B. for (supposedly) trying to reach out to the complainant for them. He wonders if the complainant knows how bad he feels because of a drunken mistake. He says he has told all he recalls and does not know what he has done wrong. The stress on L.H.'s part seems palpable. N.B. asks "wtf did I do…because I didn't stop her from saying she wanted to fuck them. Both BI and L.H. say N.B. did nothing. In one of his rare appearances on the chats B.B. says he would not lie and that he was drunk at the time.

17 August after 9 p.m.: In the context of a discussion about how often or how many people had intercourse with the complainant L.H. consecutively asks if he tried to have intercourse with her, proclaims he was drunk and then insists that only B.I. had intercourse with her; soon after he says, "but she literally wanted us to do stuff to her." B.I. apologizes to K.B. for "the stupid shit [N.B.] said"; B.I. cannot sleep, he feels sick about the situation; they are both worried about L.H.

18 August: L.H. drafts a list of seven reasons why "none of this would of happened". The list includes references to the complainant removing her own pants, to her telling B.I. to "eat her out" and to her telling B.I. to have intercourse with her. He has done research on DNA. There is discussion of getting together. Later there is a text from B.B. saying, "Like my issue is that I thought she was down the entire time so when I was in the passenger and sucked her tits she was into it," and then, "I honesty(sic) don't know if she did that or not I look back and everything was already off. Nah the only thing we had against us is that she cannot consent to any of this cause of how drunk she was but we were also drunk." And later: "Yeah but there was 5 of us compared to just one girl so we have to make sure we prove that she consented multiple times which in your facts you do that…"

15 September: In a group chat with everyone other than J.S., K.B. suggests that she has seen a video in which the defendants were mocking the complainant in the locker room. The defendants dispute this. From the overall reading of the exchange it appears highly doubtful that K.B. has ever seen such a video or that such a video even exists.

17 September: Another group chat. It is in this exchange that K.B., not any of the defendants, raises the issue of texting as being imprudent.

17 September, 7:23 p.m.: N.B. expresses his concern about K.B. getting in trouble: "Listen, I'm sorry for being a dick to [K.B.] I get worked up because I'm scared and like I just kept getting put in a corner so I'm sorry….I hope [K.B.] doesn't get in trouble because man I care for that girl and like she didn't do anything we did and it's our fault that situation was our fault before we even knew it but the thing is we didn't know at the time it was so like its freaking is (sic) all out."

18 September, 3:45 p.m.: N.B. texts L.H. saying, "I get off at 630 tn do you wanna get all the guys together tn and go over our stories."

19 September at 1:38: BI tells K.B. that nobody raped the complainant, that he asked her before, "every single one of my actions" and that she gave consent.