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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

(b) on application made by the victim, 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: 2020-01-16

Court File No.: Bracebridge 2411-998-18-1191-00

Between:

Her Majesty the Queen

— and —

Timothy Reid

Before: Justice E.A. Carlton

Heard on: November 28 and December 2, 2019 in Huntsville

Reasons for Judgment released on: January 16, 2020

Counsel:

• Melissa MacDonald — counsel for the Crown
• Michael Anne MacDonald — counsel for the accused Timothy Reid

Judgment

Carlton J.:

[1] Charge

[1] Timothy Reid is charged with the sexual assault of A.O. on December 2, 2018.

[2] Background

[2] The two did not know each other until their meeting shortly after midnight that morning at a pub in downtown Huntsville. The two as well as A.O.'s boyfriend and A.O.'s friend later went to the home of A.O.'s boyfriend. A few hours later it is clear that an act of intercourse occurred between A.O. and Mr. Reid.

[3] The only issues in this case are those of consent and an honest belief in communicated consent.

[4] The Crown called A.O., her boyfriend J.P. and an officer who attended at the home at dawn on December 2, 2018. Mr. Reid testified in his own defence.

i) The Uncontested Evidence

[5] Before setting out the issues in dispute, I will set out the broad areas of evidence for which there appears to be general agreement between the parties. The admitted or uncontested evidence sets out the following timeline of events.

[6] As of December 2, 2018, A.O. was 34 years old and had been dating J.P. since the spring of 2018. J.P., then 39, lived alone in a home on […] Road outside of Huntsville, Ontario.

[7] On Saturday December 1, 2018, A.O., J.P. and their mutual friend, K.B. went to a concert at the Legion in Huntsville. The three were there for several hours and left the Legion at or shortly after midnight. All three were consuming alcohol at the Legion.

[8] The three then walked to Pub on the Docks in downtown Huntsville. A band was playing at this venue as well. Mr. Reid arrived there on his own shortly before midnight. A.O. and Mr. Reid had never met prior to this evening. The two agree that there were conversations between them just off the dance floor. All four persons, the initial group of three and Mr. Reid, were drinking alcohol at the Pub.

[9] Near closing time, it was agreed by all four that Mr. Reid would come back with them by cab to J.P.'s home. Once there, all four continued to drink alcohol. Mr. Reid alone testified that they consumed some cannabis as well.

[10] The four danced together in the living room of J.P.'s home. During the dancing all four ended up removing some of their clothing. Mr. Reid and K.B. began to engage in consensual sexual activity in the living room. When this commenced, A.O. and J.P. went into J.P.'s bedroom. This bedroom opens directly into the living room.

[11] Mr. Reid and K.B. later moved a mattress into the centre of the living room and were lying on the mattress. K.B. went to sleep on the mattress.

[12] J.P. and A.O. went to sleep on the bed in J.P.'s bedroom. A.O. was naked. Some period of time after the bedroom door was closed behind them, estimated by Mr. Reid to be approximately thirty minutes, J.P. exited the bedroom. He came into the living room which is on the path to the washroom. The weight of the evidence is that instead he stopped and urinated on the living room floor beside the piano. He then passed out on the floor just beside and partially on the mattress.

[13] After this event Mr. Reid went into the bedroom and laid behind A.O. He engaged in vaginal intercourse with A.O. After a short period of time A.O. pulled her body away and the intercourse stopped. While the fact that this occurred is common ground this is the main area of disagreement in the evidence and I will set out that evidence in much greater detail later in this judgment.

[14] Mr. Reid went back and lay on the mattress beside K.B. who remained asleep throughout. A.O. woke up J.P. and brought him back into the bedroom. After speaking to A.O. about what had happened, J.P. demanded that Mr. Reid leave his home. Mr. Reid gathered his belongings and left the house.

[15] A short time later J.P. followed Mr. Reid to a neighbour's driveway. There was a physical altercation between the two men. Mr. Reid called police for assistance.

[16] Police were called at 0641 hours and arrived shortly before 7 a.m. They spoke to both Mr. Reid and J.P. They assisted Mr. Reid in finding his belongings. Neither of the two men wished to make a complaint of assault. No complaint was made by J.P. of a sexual assault by Mr. Reid. A.O. did not speak to police.

[17] A.O. went to the Huntsville detachment on December 3, 2018 at 1356 hours and made a complaint against Mr. Reid. There was no medical evidence in this case.

ii) The Contested Evidence

[18] There is some disagreement amongst the three main witnesses as to the events in question beyond the events immediately prior to the act of intercourse. Some of that is attributable to differences in perspective and in memory of these ancillary events that occurred from midnight to 7 a.m. that morning. I will touch on some of those differences in assessing the evidence and making findings of fact.

[19] That said, the central and critical area of evidence at issue are the events immediately prior to the act of intercourse.

[20] Mr. Reid testified that after J.P. passed out on the floor beside and partially on top of the mattress that A.O. came a short distance out of the bedroom into the living room. It appeared to Mr. Reid that she had come out in response to hearing J.P. fall to the floor. Mr. Reid testified that she looked at him and beckoned him to enter the bedroom with a hand movement. Mr. Reid testified that he followed A.O. into the bedroom. She closed the door behind them. He asked where he should lie in the bed. Once in bed together they engaged in conversation during which he thanked her for giving him a dry place to stay.

[21] Mr. Reid testified that he was lying behind A.O. facing her back. He describes them as "spooning". He placed his hand on her hip and then on her breast. Mr. Reid testified that A.O. made a "sensual moan" and placed her arm on his forearm. All of this occurred within approximately the first ninety seconds after he got into the bed. Mr. Reid testified that he believed that A.O. was consenting to intercourse. He testified to using his hand to allow him to vaginally penetrate A.O. with his penis from behind her body. Mr. Reid testified that they engaged in intercourse for a short period of time in this position before he moved A.O. to her knees and engaged in more forceful intercourse. At that time A.O. pulled away to the pillow at the top of the bed and asked him "did we just have sex". Mr. Reid responded, "what do you mean, did we just have sex". A.O. asked, "where's J." and Mr. Reid responded "he's in the living room; he passed out; he peed on the piano; you came in and saw him. I thought you knew it was me". A.O. answered, "it's okay".

[22] A.O. testified that she went into the bedroom with J.P. and was later asleep in the bed. She was not wearing any clothing. Her next memory is waking up feeling a penis entering her vagina. Her initial thought was that this was J.P. She testified that in the first moment, or split-second of awareness, she was co-operating with the act. She heard the male's voice but did not recognize the voice. She awoke further and reached behind her and touched the face and head of the male. In reaching back she could tell that the male did not have a beard as did J.P. She then looked over her shoulder and saw that the male was Mr. Reid. She became confused and scared.

[23] A.O. testified that she pulled her body away from Mr. Reid which ended the act of intercourse. She did not know whether Mr. Reid was wearing a condom or if he ejaculated. She said, "what the heck, what are you doing here, what's going on, where's J.?". There was no response from Mr. Reid. She left the bedroom to find J.P.

[24] In A.O.'s words, she was awakened by Mr. Reid "having non-consensual intercourse with me".

iii) The Offence of Sexual Assault

[25] The components of sexual assault are set out in R. v. Ewanchuk, [1999] 1 S.C.R. 330 and restated in the recent decision of R. v. Barton, 2019 SCC 33.

[26] "A person commits the actus reus of sexual assault 'if he touches another person in a sexual way without her consent'" (Barton at para. 87). "Consent" means the "voluntary agreement to engage in the sexual activity in question" as set out in section 273.1 of the Criminal Code. It includes the specific sexual act, the sexual nature of the activity and the identity of the partner (see R. v. Hutchinson, 2014 SCC 19 at paras. 54-57).

[27] Consent "means that the complainant in her mind wanted the sexual touching to take place". The focus is "placed squarely on the complainant's state of mind and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent – plain and simple. At this point the actus reus is complete" (Barton at para. 89).

[28] Dealing with the mental element of the offence, in Ewanchuk, the court stated that "the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched" (at para. 42). In Barton, the court clarifies that the defence requires that "the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct".

[29] While the court in Barton adds the word communicated to the name of this defence, this is not a substantive change in the law. The court in Ewanchuk stated the following at para. 46:

In order to cloak the accused's actions 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 that desire, is not a defence. The accused's explanation as to what was going on in the complainant's mind provides no defence.

[30] Section 265(4) of the Criminal Code applies to this defence. It sets out a preliminary filter that in jury trials there is an inquiry as to whether there is an air of reality to this defence before it is left with the jury. As this is a judge alone trial, I will simply examine this defence on the merits without applying this filter.

[31] This section also sets out that in considering the honesty of the belief in communicated consent the trier shall consider the presence or absence of reasonable grounds for that belief. That said, it must be emphasized that the defence is one of an honest belief in communicated consent. That belief need not be reasonable. It is a subjective, not an objective test.

[32] There are important limitations to this defence.

[33] First, this defence is based on a mistake of fact, not a mistake in law. An honest belief in consent based on a mistake in law is not a defence. Thus, as in one of three categories of mistake of law set out in Barton, an honest but mistaken belief in consent cannot rely on a belief in implied consent. A belief that "silence, passivity or ambiguous conduct" constitutes consent is a mistake of law and provides no defence" (see Barton at para. 98).

[34] Second, this defence cannot be relied on if the accused "did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". The majority decision of Justice Moldaver refers several times to this requirement as a "precondition" to considering the defence of honest but mistaken belief in communicated consent.

iv) Burden of Proof

[35] Mr. Reid is presumed innocent. There is no obligation on him to prove anything in this case. He can only be found guilty if the Crown proves the essential elements of the charge against him beyond a reasonable doubt.

[36] This approach underlines that this case, like all criminal cases, is not a credibility contest. The court is not simply to choose which version, either that of the complainant or that of Mr. Reid, it prefers. It is for the Crown to prove its case beyond a reasonable doubt.

[37] In using the term "reasonable doubt" I rely on the definition as set out in R. v. Lifchus, [1997] 3 S.C.R. 320.

[38] Ultimately, the Crown must prove beyond a reasonable doubt each element of the actus reus of the offence of sexual assault: (i) that there was a touching, (ii) that it was of a sexual nature, and (iii) that A.O. did not subjectively consent to this touching, specifically the act of vaginal intercourse.

[39] Mr. Reid has raised the defence of an honest but mistaken belief in communicated consent. Again, the decision in Barton makes clear that the court should consider the "reasonable steps" requirement as a precondition to considering the defence.

[40] Accordingly, the defence of honest but mistaken belief in communicated consent is not available if the Crown proves beyond a reasonable doubt that Mr. Reid did not take reasonable steps in the circumstances known to him at the time to ascertain that A.O. was consenting.

[41] If the Crown does not meet this burden, then a second burden remains on the Crown to prove beyond a reasonable doubt that Mr. Reid did not have an honest but mistaken belief in communicated consent, or, alternatively put, that the Crown has proven beyond a reasonable doubt that Mr. Reid knew or was reckless or willfully blind as to the absence of consent (see Barton at para. 123).

[42] In considering the burden of proof I apply the principles in R. v. W.D., [1991] 1 S.C.R. 742. If the evidence of Mr. Reid denying any of the essential elements of the actus reus or mens rea of the offence is accepted or raises a reasonable doubt then I must acquit. Even if Mr. Reid's evidence denying any of the essential elements of the actus reus or mens rea of the offence is not accepted and does not raise a reasonable doubt, I may only find him guilty if, on the basis of all of the evidence I do accept, I find that the Crown has proven every essential element of the actus reus and mens rea of the offence beyond a reasonable doubt.

v) Findings of Fact and the Actus Reus of the Offence

[43] Again, the central area of disagreement in the evidence are the events immediately prior to the sexual activity.

[44] I do not accept the evidence of Mr. Reid that A.O. came into the living room and invited him into the bed with him, that they had a mutual conversation in the bed and that he then obtained the consent of A.O. prior to the act of intercourse.

[45] In general Mr. Reid gave quite detailed evidence. I accept that has a good recollection of events and that on some peripheral issues, as for example the details of the specific clothes removed during the dancing or the physical altercation with J.P., that his evidence can be preferred to the other two witnesses who had less certain recollections of peripheral events.

[46] That said, as it relates to Mr. Reid's specific interactions with A.O. throughout that early morning, I make the following findings that cause me to reject his evidence on the central issue.

[47] I find that Mr. Reid overstated his interactions with A.O. prior to going to J.P.'s home. I find that he overstated these interactions in order to suggest that A.O. was interested in engaging in sexual activity with him.

[48] Mr. Reid testified that within the first few seconds of having met each other and Mr. Reid telling A.O. that he was homeless that she gave an open invitation to him to sleep and shower at her home. This was in the context of a brief conversation between strangers at the edge of a dance floor. A.O. denied issuing that invitation. I find it implausible that A.O. would give such an expansive invitation to Mr. Reid moments after meeting him after only a brief introduction.

[49] During this conversation Mr. Reid testified that A.O. referred to J.P. as a "friend". Mr. Reid gave evidence that A.O. told him "we're going back to J.'s place". He then corrected himself and testified that she said they "we're going back to my friend J.'s place".

[50] I find it unlikely that Mr. Reid could remember the precise words used by A.O. during this incidental conversation. I find that Mr. Reid has added in a specific reference to A.O. referring to J.P. as only her "friend". I find that Mr. Reid gave this evidence to again leave the impression that A.O., from shortly after she first met Mr. Reid, intentionally decided to underplay the fact that she was in a relationship with J.P. I find that he did so to make it more likely that she would be interested in having a sexual encounter with him later that morning.

[51] Mr. Reid testified that he and A.O. shared a hug and kiss on the street outside the pub in an "air of attraction". A.O. agreed that she had mentioned that Mr. Reid had the same first name of her father and spoke of her affection for her father. She admitted that there may have been a hug but denied that there was any kiss. At the time, Mr. Reid, A.O. and J.P. were looking for a cab. I found Mr. Reid's evidence that J.P. had gone ahead and did not see the kiss as forced and not credible. While J.P. did not dismiss the possibility, I find that there would be no reason for the three to separate from each other during this time. Again, I find that Mr. Reid was overstating the interest being showed in him by A.O.

[52] Mr. Reid testified, as did the others, that each of the four removed most of their clothing during the dancing. It is clear on his evidence that he "paired up" with K.B. He observed A.O. and J.P. go into a bedroom and close the door. Mr. Reid testified that he assumed that they were engaging in sexual activity. Mr. Reid testified that he was not interested in sexual activity with K.B. but did so because of the general expectation that men are required to be interested in sex.

[53] Mr. Reid's account of the events leading up to and then the sexual activity itself are self-contradictory. I do not accept them.

[54] It is clear that J.P. and Mr. Reid are very different physically. J.P. is 5'11", 190 pounds and has a strong build. He had at the time, and still does, long hair to his shoulders and a full beard. Mr. Reid is 5'9", 135 pounds and has a thin build. He had at the time, and still does, shaved hair at the temples and very short hair on the top of his head. At the time he had what he described as a ten-day growth of facial hair. Mr. Reid accepted that he and J.P. "look nothing alike".

[55] On Mr. Reid's evidence J.P. passes out on the floor. Mr. Reid later told A.O. that J.P. "was done" when she tried to wake him up after the event in the bedroom. He also knew that K.B. was asleep and she was, it seems, asleep throughout these events. Given the condition of J.P., Mr. Reid could be confident that he would not be stopped from entering the bedroom. I find that Mr. Reid went on his own into the bedroom. He described his state of mind later as "it felt like this was person who invited me to the place, this was the person who had shown interest in me before; this was the person who I felt interested in to be with" all in reference to A.O. I find that he acted on that interest by going, uninvited, into the bedroom and getting into bed where A.O. was sleeping.

[56] According to Mr. Reid, A.O. enters the living room from the bedroom in response to the sound of J.P. hitting the floor. She was "rushing out from the bedroom presumably because there was a noise of him falling", and by extension came out to find J.P. She is naked and standing just outside the bedroom. There was no direct evidence of the lighting in the living room. In describing events in the bedroom, Mr. Reid testified that there was some light coming in from the living room. Shortly after the sexual activity J.P. testified that there was some light in the sky. Mr. Reid was able to testify about watching J.P., enter the living room, urinate by the piano and then pass out in front of the mattress. Mr. Reid testified that anyone coming out of the bedroom could see J.P. "clear as day". On Mr. Reid's account I find that there would have been sufficient light for A.O. to observe the scene on the mattress when she came out of the bedroom.

[57] On Mr. Reid's evidence, A.O. beckons or waves him into the bedroom. The two men are quite physically distinct. J.P. is lying uncovered on the floor directly in front of her and in front of Mr. Reid. The clear implication of his evidence is that she is deliberately and consciously inviting Mr. Reid and not J.P. back into the bedroom. Although she has come into the living room because of the fall by J.P. she does not go to his side, does not check on him, but instead almost instantly seizes on the situation to invite Mr. Reid into the bedroom.

[58] It is unclear from Mr. Reid's evidence how A.O. would have any real information about J.P.'s condition either at one extreme that he was in medical distress to at the other extreme, that he was conscious and able to observe A.O. and Mr. Reid accept her invitation and enter into his bedroom together.

[59] Mr. Reid testified to following closely behind A.O. into the bedroom and asking where he should lie down in the bed and A.O. replied that it didn't matter. Mr. Reid testified to a conversation in which he says "thanks, should I put a towel on that pee" and A.O. replied, "it's okay". Mr. Reid then gets into the spooning position behind A.O. with his right hand on her hip. Mr. Reid testified that he then says, "hey thanks for inviting me, it's been a really great night, it's cool that we both know K.B., thanks for a dry bed" . He did not testify to any words said by A.O. in response. Mr. Reid testified that he tried to go to sleep but then thought "I thought – why am I going to sleep at this point when I was just invited into a room with a beautiful woman who presumably might also want to be with me".

[60] Mr. Reid testifies to an approximate ninety-second period in which he moves his hand from her hip to her breast, hearing her make a "sensual moan" and then A.O. moving her arm to touch his arm. Mr. Reid testified that he then used his hand to help initiate vaginal intercourse with A.O. from behind.

[61] Mr. Reid testified that as he moved A.O. to her knees she pulled away to the pillow at the head of the bed and asked, "did we have sex?" to which he replied "yes". A.O. asked, "where's J." and Mr. Reid replied, "he's in the living room, he passed out, he peed on the piano, you came in and saw him, I thought you knew it was me". A.O. then replied, "that's okay". A.O. went into the living room and shook J.P. to get him awake. When Mr. Reid told her that J.P. was passed out, she replies, "get away from me you creep". Once awake, J.P. describes A.O. as panicky and upset.

[62] Ultimately, on Mr. Reid's account, A.O. goes from inviting Mr. Reid, while naked, into her bed in circumstances in which she would clearly know that she was dealing with Mr. Reid to, just over ninety seconds later, bewildered as to where J.P. was, that Mr. Reid was in her bedroom at all, and that Mr. Reid had commenced sexual activity with her. Mr. Reid's account requires A.O. to consciously and deliberately invite him into her bed, and then almost immediately, to have had no recollection of that fact. I find that implausible and unworthy of belief.

[63] I appreciate that the defence submissions are either in the main, or at the very least, in the alternative, that A.O. mistakenly believed she was dealing with J.P. There is no basis for such a finding. When asked, Mr. Reid testified that he didn't "have any reason" to think A.O. did not know who he was. Again, I note that the two men look significantly different. Looking at the floorplan drawing J.P. would have been lying on the floor directly in front of the entrance to the bedroom. If A.O. was thinking that Mr. Reid was J.P. there would be no need to invite J.P. into his own bedroom or for J.P. to ask where he should sleep in his own bed. The conversation about thanking her for a dry bed and commenting that it was cool they both knew K.B. would make no sense and would have alerted A.O. that it was not J.P. in the bed. A finding that A.O. mistakenly believed she was interacting with J.P. prior to the act of intercourse is implausible and unworthy of belief.

[64] In making these findings I am alive to the fact that after being in the bedroom Mr. Reid does not leave the house but goes back to lie down on the mattress. He left his underwear on the bedroom floor. He leaves when directed to by J.P. but later calls police to get their assistance in dealing with J.P. and to ensure that he gets all of his belongings. These actions can be seen as consistent with a belief that he had done nothing wrong. While that may be so, I note that A.O., on Mr. Reid's own evidence, while she had said, "that's okay", at the end of their conversation in the bedroom was effectively accusing him of having sex with her without her consent. On Mr. Reid's evidence she called Mr. Reid a "creep" while she was trying to wake up J.P. Even on his own evidence, Mr. Reid reacts to this situation with considerable indifference to the feelings of A.O. Further, Mr. Reid testified to being afraid of J.P. The calling of police by him in response to that threat does not materially change my assessment of his credibility.

[65] For these reasons I reject the evidence of Mr. Reid on the events immediately prior and during the act of intercourse. I am not left in a state of reasonable doubt about the truth of that evidence. I note that the Crown raised the approach set out in R. v. J.J.R.D, [2006], O.J. No. 4749 (C.A.); that the evidence of an accused may be rejected based on the considered and reasoned acceptance of the evidence of the complainant. I do not rely on that doctrine in this case. I reject the evidence of Mr. Reid on its own terms.

[66] I do accept the evidence of A.O. on the critical issue. Specifically, I accept her evidence that she was asleep prior to the act of intercourse and that she did not consent to that act.

[67] In general, I found A.O. to be a credible witness. On events from the evening and when the parties first returned to the P. household, she was open to suggestions as to possible details of events or conversations. This was at a time where it would not be expected that she would have to recall precise details. At the same time A.O. clearly denied suggestions that she showed an interest in Mr. Reid, such as describing him as cute when she introduced him to her friends or that they shared a kiss before the arrival of the cab.

[68] The account given by A.O. as to the events in the Pub is consistent with a natural progression in the familiarity between her group and Mr. Reid that resulted in the invitation to him to join them at J.P.'s home. A.O. describes a short conversation beside the dance floor consisting of pleasantries. Then, a longer conversation at closing time including K.B., who had met Mr. Reid before, in which there is a discussion of Mr. Reid returning with them to the P. residence at her invitation. Then, a third conversation between Mr. Reid and J.P. to confirm that J.P. was onboard with this plan. I found this evidence plausible and believable.

[69] In accepting her evidence that she was asleep I have examined the evidence of her consumption of alcohol. If she was severely intoxicated it is possible that she simply does not remember going into the living room and beckoning Mr. Reid into the bedroom or the other interactions prior to the act of intercourse. The issue here is the reliability as opposed to the credibility of her evidence.

[70] The evidence does not support a finding that A.O. was so intoxicated that she simply has a blackout about these events. A.O. does describe her condition as having a "nice little buzz" (when at the Legion) and as being "under the influence" and "I was feeling drunk" (when at the Pub). She testified to consuming more alcohol back at J.P.'s house. Nonetheless, she described her own condition as being very aware of the night and the decisions that were being made and that she knew what was going on around her. Clearly, J.P. had a significant amount to drink but the evidence is not that the two had the same drinking pattern.

[71] Mr. Reid himself described the other three in general as "relatively clear-minded; not slurring or stumbling; they seemed pretty coherent". While it is clear that A.O. consumed a significant quantity of alcohol over a span of approximately seven hours, the evidence of her condition is not such that it impairs the reliability of her evidence. I accept her evidence about not immediately realizing what was happening during intercourse was more from the fact that she was waking up from a state of sleep than due to the fact that she had been drinking. The corollary of this finding is that A.O. was not incapable of consenting to sexual activity had she been awake.

[72] I have considered whether A.O. had a motive to lie about providing consent or being aware of the sexual activity as a result of the presence of her boyfriend J.P. Certainly, had J.P. observed the sexual activity independently this would have been a real issue. The uncontradicted evidence is that A.O. immediately went to rouse J.P. in order to tell him about the sexual activity. It was very difficult to wake him. K.B., too, was in a sound sleep. A.O. described J.P. as "totally out". The only way in which J.P. could have learned about the sexual activity was from A.O. There was no need to concoct a false story about being asleep in order to explain any sexual activity to J.P.

[73] A.O. was cross-examined about the events prior to the act of intercourse. She admitted that it was possible that she and Mr. Reid, were spooning, that his hand had been on her hip and then her breast, and that she had made a moan. She did not deny any of that as being possible. That evidence is consistent with her evidence that she had been asleep. A.O. did seek to comment on or deny events for which she was not conscious. It is clear that the period of time in which she was awakening and processing events to determine that she was in bed with Mr. Reid rather than J.P. was very short and only started after the act of intercourse had begun. When asked what she did after moving away from J.P. she testified that "I go to look for J.". There would be no need to look for J.P. if she had seen him minutes prior on the floor in the living room. I found her evidence in this area ingenuous and credible.

[74] A.O. admitted that she and K.B. tried to reconstruct events from that early morning. In her statement to police she spoke about what she and K.B. "think happened". A.O. clarified in her evidence that she knew what happened but that she and K.B. were trying to determine what happened when they were both asleep. A.O. was asked that question directly in re-examination as to why she had spoken to K.B. and her answer was that "I was asleep". While in other circumstances a witness admitting that they engaged in an exercise with another witness to reconstruct events would be damaging to credibility, in this case such an approach is consistent with her evidence that she was asleep and did not know how J.P. came to be out of her bed and Mr. Reid in her bed.

[75] Neither J.P. nor A.O. made a complaint to P.C. Gardiner about a sexual assault by Mr. Reid. It appears that the officer's primary role was to keep the peace and see that Mr. Reid was able to obtain his belongings and leave the area. J.P. did tell the officer that Mr. Reid "didn't act very good around the girls in the house" or "that he was rude to the girls" and that they asked him to leave or "kicked him out". J.P. testified that he was "hungover and did not want to step over any boundaries of what A. decides to do". A.O. had retreated to the bedroom. She was at most only dimly aware that police were at the house. She testified that "I was in shock". The law does not require her to make a complaint within minutes of the event. A.O. went to police the next day. I make no negative finding against A.O. for the absence of any complaint to P.C. Gardiner.

[76] For these reasons I accept the evidence of A.O. as to the events immediately prior to the act of intercourse. I find that she remained asleep in the bed after J.P. left and then passed out in the living room. I find that she did not come into the living room and beckon Mr. Reid into the bedroom. I find that she did not engage in conversation with Mr. Reid about his appreciation of being able to sleep in the bed. I accept that Mr. Reid was behind her and that he may have placed his hand on her hip and her breast. I find that A.O. may have made some noise in response to that action and that it is possible her arm made contact with his arm.

[77] I accept the evidence of A.O. that she awoke to the act of intercourse occurring. There was a moment where she believed she was with J.P., where she was co-operating with the act. Over a very short period of time, likely a matter of a few seconds, she processed that the voice of the male participant was not J.P. and that after touching his head and glancing at and seeing Mr. Reid she immediately pulled away from Mr. Reid which ended the sexual act. Subjectively, A.O. did not want to engage in the sexual activity, the act of intercourse, with Mr. Reid.

[78] I find that the Crown has proven beyond a reasonable doubt the actus reus; that there was a touching of a sexual nature and that A.O. did not subjectively consent to the touching.

vi) The Mens Rea of the Offence

[79] It is clear from Mr. Reid's own evidence that he intentionally touched A.O. by engaging in the sexual activity with her.

[80] Mr. Reid has raised the defence of an honest but mistaken belief in communicated consent. I have chosen to deal directly with that defence without first considering the preliminary step of assessing whether there is an air of reality to the defence.

a) The "Reasonable Steps" Requirement

[81] The decision of Justice Moldaver in Barton makes clear that the reasonable steps requirement in section 273.2 is a precondition to considering the honesty of that belief; "no reasonable steps, no defence" (at para. 104). If the Crown proves beyond a reasonable doubt that Mr. Reid did not take reasonable steps, in the circumstances known to him at the time, to ascertain that A.O. was consenting then I do not need to consider the honesty of that belief.

[82] Justice Moldaver, in Barton, notes at paragraph 104 of that decision that the requirement "has both objective and subjective dimensions: the accused must take steps that are objectively reasonable and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time". An accused is not obliged to take all reasonable steps to rely on the defence. It is noted that the inquiry is fact-specific and designed to "reject the outmoded idea that women can be taken to be consenting unless they say 'no'" (at para. 105).

[83] Finally, I note from paragraph 91 of Barton that the court is to look at "(1) the complainant's actual communicative behavior and (2) the totality of the admissible and relevant evidence explaining how the accused perceived the behaviour to communicate consent. Everything else is ancillary".

[84] The "circumstances" in section 273.2, on the facts that I have found, at their highest in favour of Mr. Reid, include the following:

• That Mr. Reid and A.O. were strangers prior to meeting shortly after midnight on the morning of December 2, 2018.
• That they were part of a group of four that returned to the P. household after the pub closed.
• There was no physical intimacy between the two prior to returning to the P. household but for a friendly hug on the street.
• That, however the parties were introduced to each other, Mr. Reid became sexually involved with K.B. While each member of the group removed clothing while dancing there was no intimacy of any kind between Mr. Reid and A.O. Mr. Reid observed A.O. and J.P. go into a bedroom and close the door behind them. He presumed they engaged in sexual activity.
• When Mr. Reid gave evidence of why he believed there was consent he did not rely on any events prior to J.P. passing out except to note generally that it appeared to him to be a "free-spirit environment".
• A significant period of time after J.P. and A.O. entered the bedroom passed before J.P. left the bedroom and passed out in the living room.
• Mr. Reid went in and lay behind a sleeping A.O. He placed a hand on her hip and then her breast.
• A.O. makes a "sensual moan" in response to Mr. Reid placing his hand on her breast. Her arm touches his arm.
• Mr. Reid then initiates an act of intercourse from behind her body.

[85] Mr. Reid's decision to proceed with intercourse is premised on his touching of her hip and breast which takes place when A.O. is asleep. There is no verbal response from A.O. other than what he describes as the sensual moan. The only action of A.O. was that her arm touched his forearm. Mr. Reid testified that "I felt satisfied that that was in response to consent. I had satisfied myself that was someone having, like for me, being reciprocated, rather than being perceived as an assault". He then initiates intercourse.

[86] On the facts that I have found the Crown has proven to the criminal standard that Mr. Reid did not take reasonable steps, in the circumstances known to him at the time to ascertain that A.O. was consenting. In encountering a sleeping person, a touching of the breast that causes a non-verbal response and the fact that the person's arm touches a forearm of the accused are effectively no steps to ascertain consent as opposed to reasonable steps. A more invasive touching cannot be based on a non-consensual touching; here the touching of the breast of someone who is asleep cannot be used as a step for the more invasive touching of intercourse. At its highest, A.O.'s "response" can be described as "silence, passivity or ambiguous conduct". As in R. v. Cornejo, [2003] O.J. No. 4517(C.A.) Mr. Reid effectively seeks to "transform his own acts into reflections of consent" (at para. 32).

[87] As a result, Mr. Reid cannot avail himself of the defence of honest but mistaken belief in communicated consent.

[88] My finding that the Crown disproved to the criminal standard the taking of reasonable steps would have been the same had I accepted Mr. Reid's evidence. Here, I approach the analysis by adding to the "circumstances" that A.O. came into the living room naked and beckoned Mr. Reid into the bedroom, that she closed the door behind them, instructed Mr. Reid where to lie on the bed and engaged in a short conversation. Thereafter the circumstances are as before and include responding to his touching of her hip and breast by making a sensual moan and moving her arm to his arm.

[89] Returning to Barton, Justice Moldaver states at paragraphs 108 and 109 the following:

It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case.

Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.

[90] Again, accepting for the purposes of this analysis Mr. Reid's evidence, two elements referred to in this passage are notable. First, Mr. Reid and A.O. had been strangers prior to this evening – they were indeed "unfamiliar with one another". Second, the sexual activity here is vaginal intercourse; "greater care in ascertaining consent" is required for such an act. The reasonable steps precondition is designed to reduce the risk of a mistaken belief in communicated consent, and here, of the risk of a major sexual act having occurred without consent and the attendant impact on the bodily integrity, sexual integrity and human dignity of A.O.

[91] I accept that there was, as Mr. Reid describes, a "free-spirit environment" once back at the P. residence that included semi-clothed dancing. Again, had I accepted Mr. Reid's evidence, A.O. while naked, inviting Mr. Reid into her bed would clearly be considered as an expression of interest in some sexual activity.

[92] That noted, even on Mr. Reid's own evidence, once in the bed I find that there are no reasonable steps taken to ascertain consent to the specific sexual act of vaginal intercourse. It is notable that on Mr. Reid's own evidence the only conversation with A.O. is about his appreciation as to having a warm bed to sleep and their mutual acquaintance K.B. There is no discussion of any sexual activity and again, on Mr. Reid's own evidence, A.O. assumed a position on her side facing away from Mr. Reid.

[93] Mr. Reid testified to his own internal thought process. He was going to go to sleep. This negatives his belief that the inviting of him into the bed by A.O. while naked was a communication of consent to engage in intercourse. He then testified that "I thought – why am I going to sleep at this point when I was just invited into a room with a beautiful woman who presumably might also want to be with me". The only inquiry flowing from this presumption is his placing his hand on her breast. Again, the only "actual communicative behaviour" of A.O. is the sensual moan and the placing of her arm on his forearm.

[94] Consent encompasses consent to engage in the specific sexual activity in question. Even accepting Mr. Reid's evidence that he was invited into A.O.'s bed while she was naked there has not been a communication of consent by A.O. to engage in intercourse.

[95] This fact-specific inquiry demonstrates that had I accepted Mr. Reid's evidence the Crown would still have proven to the criminal standard that Mr. Reid did not take reasonable steps, in the circumstances known to him at the time to ascertain that A.O. was consenting.

b) The State of Mind of Mr. Reid

[96] Given my findings on reasonable steps, as per section 273.2, "it is not a defence to the charge that the accused believed that the complainant consented to the activity that forms the subject matter of the charge". I will nonetheless briefly address this issue.

[97] Mr. Reid testified that he believed A.O. had communicated consent to the sexual activity. This is a denial of the mental element for the offence of sexual assault. If in issue, the Crown must show beyond a reasonable doubt that the accused knew that A.O. was not consenting or was reckless or willfully blind to that fact.

[98] I find that the Crown has met this standard. I make two observations.

[99] First, Mr. Reid cannot rely on a false understanding of consent upon which to base his belief in communicated consent. On the facts that I have found Mr. Reid's decision to proceed with intercourse in consent is premised on his touching of her hip and breast which takes place when she is asleep. These touchings of a sleeping complainant are themselves non-consensual (see R. v. A.(J)., 2011 SCC 28 at para. 37). A more invasive touching cannot be based on a non-consensual touching (see Ewanchuk at para. 51, Barton at para. 107). Further, as I found in the preceding section, at its highest, A.O.'s "response" can be described as "silence, passivity or ambiguous conduct". "Ambiguous movements by an unconscious or semi-conscious person do not constitute the clear communication that is necessary to form the basis for a mistaken belief in consent" (see R. v. Dippel, 2011 ABCA 129 at para. 18).

[100] Mr. Reid's own evidence is that he had engaged in a testing of boundaries and there had "not been any rejection of consent". That phrasing is consistent with my finding that Mr. Reid proceeded based on silence, passivity and ambiguous conduct. It was on the absence of any direct rejection and not on the basis a positive communication of consent by word or gesture to engage in the sexual activity that he proceeded to initiate intercourse.

[101] On the facts I have found any honest but mistaken belief in communicated consent is based on a mistake of law. Such mistakes do not exculpate Mr. Reid.

[102] Second, and in the alternative, I find that the Crown has proven beyond a reasonable doubt, at a minimum, that Mr. Reid possessed the mental states of either recklessness as to the absence of consent, or willful blindness, an understanding of the need to make further enquiries regarding consent followed by a conscious decision not to do so at the time he initiated intercourse.

[103] Again, I note Mr. Reid's own thought process; "I thought – why am I going to sleep at this point when I was just invited into a room with a beautiful woman who presumably might also want to be with me". It is at that point he moves his hand to her breast and then initiates intercourse with her. On his evidence he is in the bed less than ninety seconds before the intercourse commences.

[104] Mr. Reid testified that at this point he believed it "was okay to move forward" with intercourse. Notwithstanding that evidence, Mr. Reid's own description of his state betrays that he was alive to the possibility that she was not consenting and alive to the need to make further enquiries but proceeded directly to the act of intercourse.

[105] Mr. Reid testified that he thought "presumably (A.O.) might also want to be with me". The converse is that she might also not want to be with him. At that point his only enquiry is to move his hand from her hip to her breast. A.O.'s only response was to make a sound and for her arm to touch his forearm. Again, I find at a minimum that after these actions Mr. Reid was still subjectively aware that A.O. might not be consenting and subjectively decided to proceed without making further enquiries. I find that the Crown has proven to the criminal standard the mental states of recklessness and willful blindness as to the absence of consent.

[106] This finding applies equally had I accepted Mr. Reid's version of events, including the invitation by A.O. to come into the bed. His own description of his thought process is after that purported invitation and it is equally consistent on his own narrative with a finding to the criminal standard that he was, at a minimum, reckless or willfully blind to the absence of consent.

vii) Conclusion

[107] I have found that the Crown has proven beyond a reasonable doubt the essential elements of the act of sexual assault that A.O. did not subjectively consent to the act of intercourse.

[108] I have found that the Crown has proven to the criminal standard that Mr. Reid did not take reasonable steps in the circumstances known to him to ascertain that A.O. was consenting.

[109] I have found that any reliance placed by Mr. Reid on the defence of an honest but mistaken belief in communicated consent is based an error of law which disentitles Mr. Reid of the application of the defence. Further, when considering that defence on the merits I find the Crown has proven to the criminal standard that Mr. Reid was, at a minimum, reckless or willfully blind as to the absence of consent of A.O.

[110] I find Mr. Reid guilty of the offence of sexual assault.

Released: January 16, 2020

Signed: Justice E.A. Carlton