WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order Restricting Publication — Sexual Offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

(2) Mandatory Order on Application — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

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

486.6 Offence

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

Court Information

Ontario Court of Justice

Date: 2019-05-09

Court File No.: Toronto 4817 998 18-75000168

Between:

Her Majesty the Queen

— AND —

Guy Solomon

Before: Justice William B. Horkins

Heard on: April 10 and April 12, 2019

Reasons for Judgment released on: May 9, 2019

Counsel

Ms. C. Glaister — Counsel for the Crown

Mr. S. Robichaud — Counsel for the accused Guy Solomon

Ms. S. Gunewardhane — Counsel for the accused Guy Solomon

Judgment

W. HORKINS, J.:

Introduction

[1] This is a two-witness sexual assault trial that hinges on a determination of whether there was a lack of consent to the sexual activity engaged in by the participants and if so, whether the accused held an honest but mistaken belief in consent.

[2] There is a one-count Information before the Court that the Crown submits covers all the sexual activity that took place at the complainant's condominium apartment throughout the early morning hours of the date in question.

[3] The events begin out of a very common scenario. A small group of thirty-something, young, single adults, men and women, gather at a downtown bar after work. Some know each other, others do not. Two of the group appear to match up and leave together. Another two, the principals in this case, also leave the bar together and go to the complainant's condominium apartment, a short cab ride away. The accused is invited up to the complainant's 43rd floor apartment. There is progressively more intimate sexual activity, which unfolds over the following several hours until the accused departs at dawn.

[4] As unremarkable as this introduction may make the events sound, an analysis of the events that unfolded at the apartment reveal several aspects, some subtle, some not so much, that require a careful consideration of both the weight of the evidence and the applicable law.

The Facts

[5] Crown counsel organized her submissions around three phases of the sexual activity in question. The first phase involved consensual kissing and mutual fondling over the clothes, while sitting on the living room couch. The second phase, sexual intercourse in the bedroom that the complainant expressly consented to but, subsequently, complained to have been without her true, subjective consent. The third phase is a second, brief act of intercourse to which there was no express agreement but with respect to which the accused claims there was consent by conduct or failing that, an honest, mistaken belief in consent.

Phase One: Progressive Intimacy on the Couch

[6] Three times, the sexual activity on the living room couch escalated in a progression from talk, to kissing, to fondling over the clothes, to a point where the accused slides his hand inside the waistband of the complainant's pants. Each time that he slides his hand inside the waist of her pants she asked him to stop from progressing further. Each time she asked him to stop he complied. The accused took this activity, each time, to be foreplay; he expected that one thing leading to another, that things might well progress further. When he slides his hand into the waistband of the complainant's pants, he was clearly signalling an intention of reaching further down to her genital area if she wanted him to. Each time the complainant asked him to stop at the waistband and each time he stopped.

[7] They talked; they kissed; they fondled over the clothes. The progressive sequence repeated itself. As the accused slides his hand into the waistband of the complainant's pants a second time, the complainant asked him to stop. He stopped.

[8] Again, they talked, they kissed, there was fondling. Again, the accused sought to move things to the next level by sliding his hand into the waistband of the complainant's pants. She said to stop. He stopped.

[9] The complainant says that she made it expressly clear that she was not interested in things progressing any further. The accused has a different recollection. He says that he made it clear that he was not interested in building up to this point repeatedly if things were not going to go any further. If things were not going to go further, then he was inclined to call it a night and go home.

[10] At this point in the chronology of events there is a curious conflict in the evidence. The complainant says that she turned away from the accused to check her phone. The evidence is not clear how long this took but it seems to have been quite brief. She says she turned back and that the accused was completely naked. She says that he then pinned her down and asked her, "Are you sure you don't want this?" She was afraid, not sure what would happen if she said no. Her evidence is that she "gave in" because she didn't know how to fight back. Her evidence is that in her mind she was not consenting to have sex with the accused, but she acknowledges that she did in fact expressly voice agreement to go into the bedroom and have sex, saying: "Let's do it", or words to that effect.

[11] The accused relates a very different version of this important turning point in the chain of events. His evidence is that when she turned away, he slides his pants down towards his knees, exposing his erect penis. He did this to demonstrate that he was frustrated with being aroused for so long with no culmination of the activity, and that he was more than ready to go further. His evidence is that he again said that if nothing further was going to happen then he would be going home. His evidence is that she grasped his penis and said, "Let's do it."

[12] The accused also explained that she told him the reason she had been stopping him from reaching her pubic area with his hand was that she was embarrassed that she hadn't shaved herself. He made it clear that he didn't care. The complainant doesn't recall this discussion, but neither does she deny it.

Phase Two: Intercourse in the Bedroom

[13] Although somewhat similar in their recollection of the events, their evidence does conflict on some material points as to just how things transpired with respect to this first act of intercourse. Most importantly, although conceding that she expressly agreed to have intercourse by saying to the accused, in the living room, "Let's do it," she is adamant that she was not "in her own mind" consenting.

[14] They go into the bedroom together. The complainant undresses herself. She goes to the washroom and returns. There is some discussion of condoms. Neither has one. They decide to proceed anyway. There was some preliminary foreplay similar to the activity earlier in the living room. This preliminary sexual activity progressed to intercourse. The accused withdrew and ejaculated on her stomach. He says there was then some discussion as to whether he would sleep over or go home, but that she was content with him staying. She then went to the washroom to "clean up". He waited in bed. She returns to bed with him. He says he fell asleep.

[15] She agrees that going with him into her bedroom, undressing herself and engaging in sexual foreplay, without any outward expression of reluctance, by word or conduct, might have communicated to him consent and confirmation of her initial, express words of consent.

Phase Three: A Second Act of Intercourse

[16] Having cleaned up in the washroom, the complainant returned to bed. She says that she decided to just go to sleep and ignore the accused. The accused says he was asleep but woke when she returned.

[17] She says he wanted sex again; that he flipped her over onto her front and entered her from behind, twice. It was brief; she pushed him off, or away. He seemed surprised. He got up and left shortly thereafter.

[18] He relates a dramatically different version of these final events. When he woke up, it was almost 5 a.m. His first inclination was to just go home. However, he thought maybe, to use his expression, they could "go again". He moved closer to her in the bed to explore that possibility. She faced him on her side. She moved closer to accept his kiss. They kissed; he reached to her pubic area. She moaned. She then removed her own underwear. He described, fluidly, moving over, on top of her and as he did, she accommodated his move by moving her legs apart. He was now, his own expression, "in the missionary position". He inserted his penis, but quickly lost his erection and withdrew. He sat back on his heels and said that he should probably just go. They dressed, and she walked him to the door. They parted, agreeing to see each other later, at spinning class, as was discussed with their friends the previous night at the Cactus Club.

[19] Later that day, he did go to the spinning class. She did not make the class but did go to the studio. When leaving, he saw her speaking with the instructor. It seems that he avoided her and left.

[20] The complainant went to the police the following day. The police contacted the accused several days later. He was shocked and at a loss to understand the allegation.

The Framework of Analysis

[21] The only evidence in this case consists of the evidence of the complainant, countered by a denial by the accused. There are portions of the evidence that are common to both versions of the events, and there are portions that are irreconcilable. The subject matter of the pivotal issue, lack of consent, requires a cautious approach. Historically the courts have struggled with avoiding reasoning tainted by an improper reliance on once commonly held myths, and stereotypical assumptions concerning the behaviour of individuals, both during and in the wake of sexual encounters. The measuring stick of common sense does not seem to travel well across gender, generational or lifestyle divides.

[22] This is a criminal trial. The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In this case, however, it is important to state this framework clearly. It plays a central role in the determination of this matter. For the benefit of the parties, I will set out the basic framework of analysis and instructions of law that I have applied in reaching my conclusions.

The Presumption of Innocence

[23] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.

Proof Beyond Reasonable Doubt

[24] Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[25] The law recognizes a spectrum of degrees of proof. The police lay charges based on "reasonable grounds to believe" that an offence has been committed. Prosecutions should only proceed to trial if the case meets the Crown's screening standard of there being "a reasonable prospect of conviction". In civil litigation, a plaintiff must establish their case on a "balance of probabilities". However, to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown's case beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that closely approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

[26] The expression "proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

I instruct myself accordingly.

[27] In applying these fundamentals to a case that essentially turns on the evidence of the two principal witnesses, the determination of guilt or innocence must never devolve into a mere credibility contest between the two witnesses. Such an approach erodes the operation of the presumption of innocence and the standard of proof assigned to the prosecution.

[28] I expressly instruct myself in accordance with the "W. (D.)" framework of analysis:

• Firstly, if the exculpatory evidence of the accused is believed then there must be an acquittal and the analysis need go no further.

• Secondly, if the accused's evidence is not believed it may still raise a reasonable doubt and if it does, then again, the charges must be dismissed.

• Finally, and the third and crucial step in the analysis dictates that even if the court is not left in doubt by the evidence of the accused, the court must still consider the evidence as a whole and determine whether, on the basis of all of the evidence, the guilt of the accused is clearly established and proven beyond a reasonable doubt.

[29] As our Court of Appeal stated in R. v. Bucik, 2011 ONCA 546:

"[t]he lesson from R. v. W. (D.), is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise "either/or" choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt".

[30] Although it is certainly not an error to assess the credibility of the accused in relation to, or in comparison with, the evidence of the complainant, the Court must be very cautious in doing so. A common error committed with the W. (D.) framework of analysis occurs when the Court treats the matter as concluded once this comparative assessment of credibility has been completed. To do so misses the third and critical step in the W. (D.) framework of analysis.

[31] A central concern of this framework of analysis is to highlight that mere disbelief of the accused's evidence, or portions of his evidence, does not satisfy the burden of proof which lies heavily on the Crown in a criminal prosecution. It is a fatal error to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.

[32] As can be readily appreciated by these general instructions, the prosecution faces a very formidable task in the prosecution of cases that hinge on this framework of analysis, and where there is no evidence independent of the conflicting testimony of the principals.

Sexual Assault

The Essential Elements

[33] The accused is charged with having committed a sexual assault contrary to s.271 of the Criminal Code.

[34] A criminal "Assault" is an intentional application of force to the person of another without that person's consent. A "Sexual Assault" is an assault committed in sexual circumstances such that the sexual integrity of the victim is violated. The test of the "sexual nature" of an assault is an objective one.

[35] The offence of Sexual Assault covers a very broad spectrum of offensive activity; everything from an uninvited pat on the bottom to a violent gang rape falls under the one title of "Sexual Assault".

[36] The only issue contested in this case is "consent". There is no question that the activity described by both witnesses would be a sexual assault if it was engaged in without the subjective consent of the complainant.

Consent

[37] In recent years, appellate guidance on the law of consent in Canadian criminal law has been developed and articulated clearly in the several leading cases, including the cases of Ewanchuk, J.A., A.R.J.D. and most recently, in our Court of Appeal in R. v. A.B.A. This body of law is also summarized clearly in a relatively recent text by Brown and Witkin: Prosecuting and Defending Sexual Assault Cases, at Chapter 13.

[38] A lack of consent is a crucial element of the charge that the Crown must prove. Consent is defined in s. 237.1(1) of the Criminal Code as the "voluntary agreement of the complainant to engage in the sexual activity in question".

[39] There is no such thing as "implied consent" to sexual activity. Consent is judged subjectively. There is either consent, or not; there is no third option.

[40] Where the complainant has, as in this case, given direct evidence that she was in fact not consenting to all of the sexual activity in question, then the Court must consider all the circumstances and determine whether that stated lack of consent has been proven and established beyond any reasonable doubt.

[41] The accused's own belief as to the complainant's consent is only relevant when the evidence raises, with an air of reality, the concern that, despite an actual lack of consent, the accused held an honest and reasonable belief that the complainant was in fact communicating her consent, and he therefore lacked the requisite mens rea for the offence.

[42] If the accused's assertion that he honestly believed that she was consenting has at least an air of reality, the Crown then has the burden of establishing beyond a reasonable doubt that the accused did not have an honest but mistaken belief in consent. If there is any reasonable doubt on that issue, the accused must be found not guilty.

[43] The accused's belief in consent must be subjectively honest and objectively reasonable. To be reasonable it must not be based on recklessness, illegitimate assumptions, prohibited myths or stereotypes.

[44] In R. v. Cornejo the Ontario Court of Appeal articulated a useful framework of analysis where an honest but mistaken belief in consent is under consideration:

In R. v. Cinous, 2002 SCC 29, the Supreme Court of Canada discussed the air of reality test, …, the "test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit". Further, the trial judge must consider the "totality of the evidence" and assume the evidence relied upon by the accused to be true.

In R. v. Livermore, McLachlin J. explained that the defence of honest but mistaken belief in consent "involves two elements: (1) that the accused honestly believed the complainant consented; and (2) that the accused have been mistaken in this belief" [original emphasis].

In Ewanchuk, Major J. stated:

In order to cloak the accused's action in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant in her own mind, wanted him to touch her, but did not express desire, is not a defence ... What matters is whether the accused believed that the complainant effectively said "yes" through words and/or actions [original emphasis].

I instruct myself accordingly.

Application of These Fundamentals to the Evidence

[45] I will adopt counsel's useful division of the chain of events into three phases of activity in isolating the critical points in the activity, where the issue of consent requires determination.

Phase One: The Activity on the Living Room Couch

[46] It is common ground that the sexual activity leading up to the first instance of the complainant stopping the accused from reaching to her pubic area was clearly consensual. The Crown submits that the first "stop" established a boundary carved in stone and that any subsequent move by the accused to slide his hand into the complainant's waistband would be an assault. On the particular facts of this case, I disagree.

[47] The complainant told the accused to stop. He did. They resumed the previous sexual activity. It was again, clearly consensual. The renewed sexual activity again escalated in a similar, progressive sequence. The second time the accused slides his hand into the waistband was a natural progression of the resumption of amorous, sexual activity. I find as a fact that sliding his hand into the waistband was a return to the boundary line that had been drawn, but not a trespass beyond it. At the boundary he was again told to stop, and again he obeyed and stopped. If he had reached down into the pubic or vaginal area without stopping, I would agree with the Crown's submission that he had crossed a line without consent. This sequence repeated itself a third time.

[48] I have no hesitation in finding that the sexual activity on the living room couch was in every sense consensual. Although the accused made it clear that he wanted to go further, he heeded and respected the boundary articulated by the complainant and went no further than what the complainant consented to, expressly, by both words and actions.

Phase Two: First Intercourse in the Bedroom

[49] Although the initial transition into the bedroom activity was described differently by the parties, phase one transitioned into phase two with the accused exposing his erection and making it clear that he wished for the sexual activity to progress further along.

[50] The complainant confirms that she expressly voiced consent to go into the bedroom to have intercourse. I find as a fact that she clearly communicated words of agreement by saying: "Let's do it" or clear words to that effect. She then took the accused into her bedroom, took off her clothes, went to the washroom to prepare herself, returned to the bed and accepted his further advances without any sign of hesitation or words indicting a change of mind.

[51] At this point in the chain of events a significant issue is presented by the complainant's evidence that despite her clearly articulated words of consent, she was actually acting under duress. Her unequivocal evidence is that despite the clear outward expression of consent, "Let's do it", she was not in fact consenting "in her own mind". She says she "caved in" to his advances out of fear of "what he might do".

[52] A determination of the issue of consent at this point in the events requires a consideration of the complainant's credibility on this point.

[53] Through education and experience in recent years, the criminal courts have gained a heightened understanding that the realities of human sexual dynamics often defy what some might otherwise consider to be common sense. Reliance on assumptions of what a complainant ought to have done or ought not to have done can be very dangerous. I caution myself accordingly.

[54] Curious behaviour does not always support a negative assessment of credibility or reliability, or the true subjective thinking of a victim of a traumatic experience. Common sense and the relative harmony of a witness's evidence with accepted facts are usually reliable measuring tools in assessing the probabilities of the evidence being truthful or reliable. However, with sexual assault allegations, trial courts must be extra vigilant to guard against improper reliance on myths and stereotypical thinking which may masquerade as common sense.

[55] Counsel for the accused asked me to disbelieve the complainant, that her version of events was literally incredible and contrary to common sense. I pressed counsel to help me by pointing to specific frailties in her evidence.

[56] In the early morning hours, having shared a cab to her place, the complainant invited the accused up to her apartment on the 43rd floor. The accused had convinced a cab driver to take them, first, a short distance to her home and then to continue to his home. This plan dissolved upon arriving at her condominium due to a confrontation between the driver and the complainant over the fare. The driver told them both to get out. The accused was then stranded.

[57] She says the invitation to come up to her apartment was just to come up to wait for his cab. This strikes me as me as odd. Just a guess, but it might take longer to take the elevator to the 43rd floor than for an Uber to arrive at the front door. His evidence makes more sense to me. He says he was going to call an Uber and wait in the lobby but changed his mind, interpreting the invitation as an opportunity to get to know each other a bit better. It is possible that these are simply two different understandings of the same event, however the accused's understanding seems entirely credible to me.

[58] They arrive at her apartment. The first thing the accused notices are men's shoes already by the door. Her roommate's shoes and some "big shoes" that belong to the roommate's boyfriend. We have long left behind the days when rape victims were expected to raise the "hue and cry" and run for help or risk not being believed. However, it still seems difficult to understand the choice to "cave in" and unwillingly agree to sexual intercourse instead of seeking help from her roommate or the boyfriend. She explained that she was afraid, but in fact she had every opportunity to remove herself from the accused's reach.

[59] The discussion concerning condoms. Neither had one. They agree to proceed without one. A fair question arises: Wouldn't an already unwilling participant at least attempt to seize on this as an opportunity to end things? Again, perhaps a fearful and unwilling victim might not behave in such a logical fashion, but still it raises another basis for concern.

[60] These are all legitimate areas of analysis, but they are far from substantial enough to completely undermine the credibility and sincerity of the complainant. They are a few examples of areas of her evidence that raise concerning questions, but none that would justify rejecting her evidence out-of-hand as dishonest.

[61] Apart from the evidence of the accused, there is no reason that is sufficiently compelling for me to reject the evidence of the complainant that she was not subjectively consenting to the sexual activity progressing further, and to having intercourse with the accused. However, there are enough questionable areas of concern to weaken the force of her evidence and render it incapable of neutralizing the evidence of the accused.

The Evidence of the Accused

[62] The Crown submits that the accused's narrative was surprisingly detailed and self-serving. It was both, but is that an indicium of fabrication or is it simply the truth? Apart from the contrary evidence of the complainant there is no significant reason to disbelieve the exculpatory evidence of the accused.

[63] The accused gave his evidence in a straight forward, balanced and articulate fashion. There is no articulable reason to reject his evidence as untruthful, unreliable or inherently unbelievable. I find his evidence sufficiently cogent and compelling to raise a reasonable doubt that the complainant lacked subjective consent to the sexual activity in the bedroom.

[64] His evidence easily raises a reasonable doubt on the threshold issue of actual consent to the first act of intercourse in the bedroom.

[65] The entire constellation of circumstances surrounding the events simply prevent me from being satisfied to a point of proof beyond a reasonable doubt that there was a lack of subjective consent. On the evidence I am unable to determine this issue with sufficient certainty to find against the accused. It is possible that the complainant was, in her own mind, consenting under duress. However, the evidence also compels my conclusion that it is at least equally possible, if not more likely, that she was in fact freely and subjectively consenting as her express words would indicate. I have a reasonable doubt that she was not actually consenting.

Phase Three: The Second Act of Intercourse

[66] The two contrary renditions of what happened regarding the second, brief act of intercourse are the most difficult parts of the evidence to reconcile. Someone is not telling the truth about this part of the events. Strictly on her version of the events there could be no doubt that she was not consenting, and no one could possibly be honestly and reasonably mistaken about it.

[67] She says that sometime after she returned to her bed, following the first act of intercourse, he asked if she was awake, then flipped her over, pinned her down and entered her, twice, forcefully, from behind before she was able to push him off. This evidence unquestionably describes a rape.

[68] The accused absolutely denies this version of the event. He says he leaned into her as she faced him on the bed; that she responded by leaning into him. She responded positively to his fondling. That she removed her own underwear and, on her back, moved her legs to accommodate his body as he moved over her, into position, to have intercourse. After a brief penetration he was unable to maintain an erection and abandoned the effort. All this without any indication of protest. On the contrary, he relied on the multiple active cues of acceptance in the context of the entire evening's events to believe she was consenting to have sex.

[69] For many of the same reasons as previously noted, I am unable to determine to any acceptable degree of certainty who is telling the truth. More importantly, I am unable to reject the exculpatory evidence of the accused. I am not persuaded beyond a reasonable doubt that the second act of sexual intercourse was without the consent of the complainant.

[70] These finding mandate a dismissal of the charge against the accused. However, I want it to be abundantly clear that I am left with a reasonable doubt and I am not in any way finding the complainant to be fabricating. The allegations may be true, but they are not proven to the very exacting degree of certainty that the criminal law demands. The body of evidence before me is not a safe and reliable foundation for a conviction.

Honest, Mistaken Belief in Consent

[71] I will add this for the benefit of all. Had I been persuaded that there was in fact a subjective lack of consent, I would still conclude that the evidence in this case would certainly leave a reasonable doubt on the issue of mens rea. The accused's evidence cannot be rejected, and it supports a very strong basis for an honest and reasonable belief in consent.

[72] In limited circumstances, even if the victim did not actually consent, the evidence at trial may fall short of proving beyond a reasonable doubt that the accused knew that there was no consent. Being reckless or willfully blind is insufficient to be an honest and reasonable belief. An honest and reasonable belief cannot be based on silence, passivity, or ambiguous conduct. Being uncertain is not enough to qualify as honest and reasonable.

[73] In this case, the evidence taken as a whole raises the issue of mistaken belief. The consensual foreplay on the living room couch, the express invitation: "Let's do it", disrobing, discussing condoms, going to the washroom to freshen up prior to the first intercourse, removing her underwear, no express change of mind after declaring "Let's go", these are some of the "cues" that the accused gave evidence of reading as being consent.

[74] In the circumstances of this case, even if the case supported a finding of actual lack of consent, this evidence would raise a reasonable doubt on whether there was an honest and reasonable, mistaken belief in consent. Certainly at phase one and two this is an easy conclusion to reach without having serious reservations about the truthfulness of either witness. At phase three, a mistaken belief could only arise on the evidence of the accused, but not on that of the complainant.

[75] There is no burden of proof on the accused to prove an honest and reasonable, mistaken belief in consent. His evidence establishes a significant basis for an honest and reasonable belief in consent. Once the evidence raises this issue with an air of reality, the Crown's case must disprove the accused's apparently mistaken belief in consent and establish the requisite mental element of the crime beyond a reasonable doubt. The evidence in the case before me falls short of that mark.

Conclusion

[76] For all of these reasons, the charge against the accused is dismissed.

Released: May 9, 2019

Signed: "Justice W. B. Horkins"