Publication Ban Notice

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE No.: 0611-998-21-1183 DATE: September 8, 2023

ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

perry meeker

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on March 6 and 7, June 30, and July 28, 2023 Reasons released on September 8, 2023

Counsel: Mr. Ayoub Ansari................................................................................................... for the Crown Ms. Carrie Bellan............................................................................................. for the Defendant

SCHWARZL, J.:

REASONS FOR JUDGMENT

1.0: INTRODUCTION

[1] The Defendant, Perry Meeker, faces a trial before me on a single charge of sexual assault, contrary to section 271 of the Criminal Code.

[2] The defendant and the complainant, CP, know each other and were for friends for nearly two decades. In the summer of 2020 after a hiatus of some years, she renewed contact with the defendant and they socialized with increasing frequency and intensity over the following months. On April 28, 2021 they arranged to meet privately at the defendant’s tavern where they talked and drank heavily over several hours. At some point that night, a sexual encounter occurred. The defendant admits that he kissed, fondled, and digitally penetrated the complainant. The defendant says although the complainant did consent verbally, she was nonetheless a willing and full participant because of her conduct. The complainant remembered no sexual activity other than the penetration but said that she never agreed by words or conduct to any of the sexual activity.

[3] The central issue is whether the Crown has proven beyond a reasonable doubt that (a) the complainant did not consent and (b) that the defendant either knew, or was wilfully blind or reckless, of a lack of consent by the complainant.

[4] For reasons I will explain, I find that the prosecution has not discharged its heavy burden of proof in this case.

2.0: REVIEW OF RELEVANT EVIDENCE

[5] Most of the facts are not in dispute. It is the perspectives of the defendant and complainant that inform and shape the legal issues in this case. What each person understood and perceived about their relationship, and the events leading up to, including, and after the sexual encounter are all relevant to reaching my verdict. A review of their relationship and the communications between them assists me in understanding the context within which the legal issues arise.

2.1: Events leading up to April 28, 2021

[6] The defendant has owned local tavern for many years. The complainant is a musician and a server and bartender for nearly thirty years. At one time, she worked in his establishment. At some point the complainant was fired and she did not understand why. Years later, she contacted the defendant and asked him if they could get together and talk. He agreed and they met on July 30, 2020 at which time they discussed why she was let go. The complainant became emotional and cried when talking about her departure from his employment. She was satisfied with what the defendant told her and said that because of that meeting she felt she now had a “deeper” friendship with the defendant. The defendant also appeared happy about the reunion. He sent her a text shortly afterwards telling her that it was great catching up with her. She replied by agreeing with him and asking him if they could “go out again soon.”

[7] After hashing out why she had been fired, the complainant and defendant began to communicate more frequently. They did so in person and by social media, During the trial, the record of their communications was focused almost entirely on their texts made via Facebook Messenger.

[8] On September 15, 2020, the complainant texted the defendant and stated that they should “have another date night soon.” This text initiated a wide-ranging exchange of messages for nearly one-half hour. During this time, the defendant invited the complainant and a companion to come boating him and his friend the next day. She told him that she was “his girl” but she could not go and in any event was prone to motion sickness. The complainant then told the defendant that she and a friend were getting together in a few days “to get smashed.” Meeker replied that he didn’t enjoy getting drunk but that if it happened by mistake, he understood. The complainant replied “Well, I think it’s ok for two girls to have wine in their pajamas and get smashed and talk girl shit.” At this point, the following exchange occurred:

PM: I hear there’s pillow fights and feathers, too. :)

CP: Totally 😜 [1]

PM: And tickling

CP: Ha Ha

PM: My mind is swirling. Lol.

CP: Silly boys. The intention is not to get smashed. I just think it might happen. It’s a sleepover after all.

[9] The complainant explained that when she texted that she was “his girl”, she only meant that she was available to go boating, nothing more. When confronted about the texts that same day about a sleepover with reference to pillow fights and tickling the complainant denied that they were flirting with each other, stating that it was just banter between friends.

[10] On November 3, 2020, the complainant texted the defendant, which initiated another round of texts with him over another lengthy period of one-half hour or so. They discussed her musical career in detail. The complainant also invited the defendant to join her and her friend, R, to go out with them to see live music on November 13, 2020. Some relevant texts from this conversation are as follows:

CP: We are going out next weekend, probably Friday if you want to come with? I’m invit[ing] R…

PM: I’d love to! Keep me posted :)

CP: And prob[ably] another chick I’ve tiger [sic] with. You will be the pump amongst the holes LOL….

PM: ….Where?

CP: It’s under BVR [Barley Vine Rail Restaurant]

PM: Oh yes. Never been yet!

CP: Oh! It’s cool. KK, it will be fun

PM: Sounds great.

CP: Just gotta get all the hose [sic] on board 😃 [2]

PM: Lol

[11] When asked what she meant by “You will be the pump amongst the holes”, the complainant testified that what she meant to type was “You will be the pimp amongst the whores”. She strongly disagreed with the suggestion that she was making any sort of sexual reference or innuendo but was just joking, notwithstanding the obvious sexual overtone of those words..

[12] On November 9, 2020, the complainant texted the defendant to remind him of their arrangements for November 13. A relevant portion of that conversation is as follows because the complainant is looking forward to drinking with him:

PM: …eating or just drinks?

CP: We are probably all eating. And drinking 😜

PM: Perfect!

[13] On November 13, 2020 the defendant met the complainant and her friends. When it was over, they exchanged texts stating how wonderful and nice it was to see each other. The following relevant exchange then occurred:

PM: She’s always been a very busy person. Lol. Our date was nicer :) although I enjoyed seeing A and R. Have a wonderful evening. Enjoy the date!

CP: Thanks Perry 😘 [3]

PM: 😘 ❤ [4]

[14] Meeker testified that “our date was nicer” referred to the time in July, 2020 when they met alone to discuss why the complainant was let go from his employment.

[15] On November 23, 2020, the parties discussed recent COVID restrictions. After the complainant sent the defendant information regarding those restrictions the following exchange occurred:

PM: Thank you ❤

CP:

[16] A couple of days later, on November 25, 2020, the complainant asked the defendant out again. The text exchange is as follows:

CP: Hey Perry. Are you interested in going to comedy night this Friday at Revival?

PM: Hello. I would love to! Sadly I already have plans on Friday :(

PM: I heard the last one was great.

CP: Boooooo ha ha. Yes it was. Ok another time perhaps.

PM: I’d love to. Hope to see you soon.

[17] When asked about her invitation to the defendant to go with her to a comedy night, the complainant was adamant that she did not wish to be alone with him with any romantic intent, but as friends only. She also testified that she had no intention of going to the comedy show with just the defendant. However, unlike her invitation to the defendant to see live music with her and her friends, there was no mention of going with anyone else but him.

[18] On November 30, 2020, the defendant and the complainant had the following text exchange:

PM: How did the comedy night go?

CP: I didn’t go. I didn’t feel right taking up a table just for myself.

CP: I hopped in my car and went to Owen Sound and checked out a little pub there and watched a live duo play. I had a blast.

PM: Holy cow. That’s a hike for live music!

CP: Yep!! But I’ll drive for it

CP: I love it

PM: Amazing. I wish I could have it [sic] the comedy night.

[19] The complainant testified that when she told Meeker that she did not feel right taking a table alone, she was not suggesting or implying that she did not want to go without him, notwithstanding that she had asked only him to go with her.

[20] On Boxing Day, 2020 the parties texted each other good wishes for Christmas and exchanged kissy face emojis.

[21] On January 4, 2021 the parties engaged in a substantial exchange regarding the complainant’s plan to become a psychologist. After this exchange, there are no text communications for over four months. The evidentiary record is silent as to what, if any, other communications they had over this period.

[22] On April 21, 2021 the defendant reached to the complainant midday by text stating, “Well hello! Long time no chat! How are you making out in these crazy times?? School going well?”. The complainant replied by describing school and she, in turn, inquired about the defendant stating, “How are you doing darling?” This mutual query initiated a conversation lasting nearly half an hour, most of which was a discussion about mathematics. This conversation ended as follows:

PM: Have a wonderful rest of day! Hopefully eventually we can get together for a glass of wine!

CP: I’d love to!! 👄 [5]

PM:

[23] A few hours later, the complainant texted the defendant which was the start of very long exchange that lasted nearly an hour. She asked him how the renovations to his business were progressing. He stated “I haven’t really brought anybody in with the COVID rules now….no guys. Just me mostly. Lol”. They were conversing about the complainant’s musical activities and COVID when the defendant texted:

PM: Well, if you go stir crazy let me know! I will sneak you in for a wine! :)

CP: ….I’m down…but I’m still doing keto so I can’t have any wine, just vodka

PM: …and I have vodka too! With soda or tonic?

CP: Diet 😋

[24] They then spoke about the complainant’s ketogenic nutrition plan and its progress and goals. The following exchange was a relevant part of this part of the discussion:

CP: But I’ve lost most of my chub LOL so it’s worth it. I’m going to be out there this summer Perry! … I’m going to be solo patio surfing in my sundress with my new hair extensions LOL. Snap! Snap! Snap!

PM: And YOU WERE NOT CHUBBY!! Very sexy!

CP: Oh I was chubby…thank you darling…it’s OK if the fat goes to the boobs or the butt but it’s supposed to stay away from the middle. Unfortunately we’re not made of play-doh so I can’t just push it where I want it ha ha.

[25] As the conversation continued, the following was exchanged:

CP: It’s so weird that you texted me today. Because I had a dream about you. I never realized that I was psychic.

PM: Wow. Connected some way.

[26] After more chitchat, the following was exchanged:

PM: Well what’s your 3 pm look like tomorrow?

CP: I’m not sure actually. I may have plans. I’m waiting for confirmation today

PM: Ok. Lmk [let me know]. I’m pretty flexible.

CP: Well what’s your schedule? I’m sure you’re trying to get stuff done around there.

PM: ….I honestly am so flexible it’s crazy!

CP: Yeah, we got to have drinks Perry. I want to know what’s going on with you. But it seems like drinking is more of a nighttime thing for me. You know I’m weird that way.

PM: ….Nighttime is good too!

CP: And that wasn’t flirting LOL I think I’ve probably only day drink maybe five times in my life.

[27] After discussing a place out of town that they both liked, the following exchange took place:

PM: One day I’ll ask about the dream.

CP: OK darlin’ I should probably let you back at it, I’ve been stalling. I have to hit the history books now. Can I text you tomorrow if I’m not going anywhere tomorrow night? I’m far too immature to discuss that dream in person LOL

PM: For sure! Lmk. Good luck with the studies. I have persuasion techniques :)

CP Not a chance LOL. You can’t get me drunk Perry I’ll just cry.

PM: Naw. That’s all in the past. ❤

CP: 😜 . Ok darling. I’ll text you either way tomorrow. And if not tomorrow maybe next week?

[28] When the complainant stated that she would cry, she said she was referring to their meeting in July 2020 when they spoke about her firing and their friendship became deeper. They then spoke about the defendant going to Ottawa to bring his son home from school and spent a lot of time talking about music and travel. The conversation came to an end as follows:

CP: What are you doing right now? Are you sitting at the bar?

PM: Sadly have to run. Going to call my assistant. I’ve been putting her off. Lol. Enjoy the history. Booo.

CP: Or are you at home? OK LOL I’ve been avoiding LOL. OK I’ll text you tomorrow 😘

PM: Chat tomorrow ;)

[29] CP was asked about the April 21, 2021 text conversations which included her using kiss emojis, telling the defendant she had a dream about him, describing her figure and desire to wear a summer dress, calling the defendant darling, wanting to know what he was doing at that time, agreeing with him that she wanted to see him, and promising to text the defendant the next day. She strongly denied that she had any romantic interest or intent when communicating with the defendant at that time. She was equally firm that when the defendant commented that she would look very sexy in her summer dress, and that he had “persuasion techniques” to convince her to tell him about her dream she did not think he was being flirtatious with her because to her, he was just a friend not withstanding her desire months early to become “deeper” friends.

[30] As they promised, the two texted each other the next day, April 22, 2021. They did so intermittently over a two-hour period. They picked up where they left off, talking about music including going to Halifax to experience the music scene there. They also discussed the defendant’s trip to Ottawa. Relevant portions of this conversation are as follows:

CP: So I am recording at the studio today. I’ll be there at four and I it’ll probably take me a couple of hours. How late do you stay out on a school night?

PM: We can certainly hook up next week! Don’t need you to rush! Have a great time!

PM: …I’d still like to catch up soon.

CP: Sure we’ll try for next week…When do you head out of town?

PM: Not until Wed or Thurs. Not really sure yet.

[31] The next text communication occurred on April 27, 2021 when the complainant reached out to the defendant. The important parts of this conversation are as follows:

CP: Hey Perry! Do you want to have a drink-e-pooh tomorrow night?

PM: That would be awesome. I’m on my way to Ottawa right now. I’ll be back in plenty of time tomorrow. :)

CP: Oh you went early!! Would you rather do Thursday evening? In case you’re tired from the drive? That works for me as well.

PM: Tomorrow is great! Yes, it looked like rain Wednesday and Thursday, so I went early.

CP: Ok great! What time do ya think?

PM: I should be home by 4. So anytime is ok. We can figure it out tomorrow. Say 6/7?

CP: Sounds good!

PM:

[32] The complainant agreed that she was the one who reached out to the defendant on April 27, 2021. However, she told the police and me that it was the defendant’s idea. She denied any romantic or flirtatious meaning when she asked to see him the next day for a “drink-e-pooh.” The complainant was adamant that there was never anything romantic or sexual between her and the defendant. She said that she trusted and respected him as a close friend, regarding him as a mentor.

[33] When the various emojis she used throughout her texts were put to her, the complainant denied they were flirtatious because she sends them to all her friends and relatives and said, without specifying, that if she intended to be flirtatious with the defendant, she would have used other emojis, not the lips and wink/kiss ones she used. When asked why she talked to the defendant about “dates” she said that she was not suggesting any romantic connotation because that is how she describes getting together with friends generally.

[34] When shown the various heart and kissy emojis and the texts sent to her by the defendant, the complainant disagreed that she thought the defendant was ever flirting with her. She said that the emojis he used can signify agreement, thanks, or other non-romantic meanings.

[35] With respect to the messages produced at trial, she agreed that she did not give the police the exchanges from the day before incident, the day of the incident, or and the day immediately after the incident. When asked why she omitted them she explained that she did not deliberately withhold them despite knowing they were available and within her control. She said she decided to give the police the messages that she thought were important, being the ones from July 2021. She strongly disagreed that she intended to give the police an incomplete or distorted account of how this situation unfolded.

[36] She told the police that when they made plans to meet on April 28, the defendant would be working there with several people. She agreed in court that this was wrong and agreed that he was doing the renovations mostly alone and was not working but driving alone from Ottawa that day. She agreed that when speaking with the police she neglected to tell them that she was the one who had asked the defendant the day before to get together for drinks. She could not explain why she did not tell them that this relevant information.

[37] The complainant agreed that when she was asked by the police about her relationship with the defendant, she told them, “It’s not like we had a close, close relationship where we talked to each other all the time.” In court, she was asked to explain this statement. She said that she and the defendant had a close relationship, but not “close, close”. She stated that, “We weren’t so tight like he was one of my besties that we talked all the time.” CP testified that she and defendant were nothing more than good friends. She stated that after meeting with the defendant in July 2020 they were “developing a friendship” but that she never wanted nor conveyed that it was or would become romantic in any way.

[38] CP acknowledged that at the time she agreed to meet the defendant at his tavern, she was dating someone and did not tell that person that she was going to see the defendant, let alone privately and for drinks.

[39] The defendant testified that after the complainant reached out to him in the summer of 2020, he believed that the Facebook messages became flirtatious and, in his words, “interesting” as time went on. He said that he believed that their conversations and shared experiences were progressing their relationship from being friends to becoming lovers. He was never challenged on his perception of their relationship leading up to the events that led to him being prosecuted. His perceptions seem consistent with the voluminous text messages filed as evidence.

2.2: The Events of April 28, 2021

[40] By texts exchanged on April 28, 2021 the parties agreed to meet at the defendant’s tavern at 6:30 p.m. He asked CP to park around the back and he would have a door open for her. She arrived at 6:30 p.m. with a text “Here 🤪 [6] .” Only the defendant and the complainant were present for what happened next. I will briefly outline the relevant evidence each of them gave about the events after the complainant’s arrival.

2.2.1: The Evidence of the Complainant

[41] CP testified that she had not been drinking prior to going to the tavern. She brought a bottle of vodka and three cans of Diet Pepsi. She did not recall hugging the defendant on arrival but may have because she is a “huggy” person. She said that she and the defendant had hugged often in the past as a greeting or when comforting one another in sad times.

[42] She also testified that because of her diet, she was fasting at the time and had not eaten anything solid that day, just water.

[43] The complainant said that she and the defendant sat at a high-top table in the bar. She could not recall if she sat on a tall chair or on a bench. Either way, she said they were facing each other where they sat, drank, and caught up with one another. She recalled the defendant telling her that she did not have to bring her own alcohol because they were sitting in a bar. She recalled the defendant produced two bottles of vodka but did not know if either of them was sealed or not.

[44] CP said that the defendant was drinking red wine and that he had some shots of vodka, recalling he had three or four shots, but she was not sure. She recalled talking the defendant into taking shots of vodka to “catch up” with her because he was not drinking much, and she did not want to drink alone. When it was suggested that she was asking him to be as inebriated as she was, the complainant did not provide a direct answer, but stated, “I was asking him to drink with me because I noticed he wasn’t really drinking his wine.”

[45] When asked if she was doing vodka shots, the complainant said that it was very unlikely because drinking straight alcohol is unpleasant and would probably cause her to vomit. However, she did say that it was possible. She also said that they were only drinking socially and that neither of them was abusing alcohol.

[46] She acknowledged drinking on an empty stomach but said that she hoped to eat something when she got the tavern because it has a kitchen. She agreed it was possible that the defendant wanted to get some food but she did not want any, but she did not remember.

[47] The complainant agreed that she might have talked to the defendant about the relationship she was in but did not recall. She agreed that in the past she told the defendant that she was in an “on again, off again” relationship which not a serious one. She also agreed that although she did not remember, she may have spoken to the defendant about another former partner of hers. When it was suggested that when she talked about these other men it was because she was letting Meeker know that she was single, she answered uncertainly, “I don’t think so.”

[48] The complainant testified that they may spoken about her education, her career plans, and music but did not recall because they spoke about those subjects in the past as well. She only recalled talking about the defendant’s purchase of a house in Ottawa.

[49] When asked if she and the defendant danced together, she replied they might have but she did not remember, adding that this was something they had not done before. When asked if she and defendant kissed each other while dancing, she adamantly disagreed saying they had never touched, let alone kissed before. Yet, she also said that they had hugged often. When it was suggested that she and the defendant were more than friends, she exclaimed, “Hell no!”

[50] When pressed that they were kissing and touching each other while dancing, the complainant responded, “I can’t see that…. I can’t remember, but I’ve never jumped any of my other friends before.”

[51] In response to the suggestion that they continued kissing at the table after dancing, she said that she did not remember but added that it was highly unlikely because “ Perry was somebody that I looked up to that I wanted to be proud of me. I don’t have strong male figures in my life. I just cannot see myself ever doing something like that with Perry. Perry was, to me, a special person in my life because he was a good man. I always said he was probably the best person and the best man that I knew, so I cannot — I don’t believe I did that. That relationship was important to me, our friendship.”

[52] When it was suggested to her that she rubbed the defendant’s upper body, she replied that she did not remember.

[53] CP said that while they drank and talked, there came a point when she remembered sitting there, then not sitting there but was halfway to the washroom. She recalled that at this point, the defendant had his arms around her; one was under her left arm and the other was at her crotch where he put his hand inside her pants and underwear and digitally penetrated her. She recalled reacting by calling his name in a remonstrative, protesting fashion. CP stated that his repeated thrusting hurt and that “he wasn’t nice about it; it was too hard and too fast.” When it was suggested that she climaxed from being penetrated, the complainant replied that she did not remember what happened. When it was suggested to CP that she was an equal participant in sexual intimacy with the defendant, she replied, “Well, I would say if I was inebriated how was I a willing participant in anything?”

[54] The complainant recalled wearing tight fit jeans that fit snugly on her. Her pants had three or four buttons and no zipper. It was suggested that because of her build that they would have to come down for a hand to go inside her pants. She said they were not too tight. When asked if she undid her pants, the complainant answered, “What do you want me to say? All I can say is I can’t remember. I highly doubt it.”

[55] At the time this happened, the complainant said that she had never been so intoxicated in her life. On a scale of zero to ten where zero was alcohol-free and ten was passed out drunk, the complainant described herself as “nearly 10 or 9 and a half, but I can’t say with certainty.” No evidence was offered if she had ever consumed large amounts of alcohol before or if she had ever drank on an empty stomach in the past.

[56] CP said that the next thing she recalled was lying on the floor. She could not remember where she was but she could see the bathroom ahead of her. She said that when she opened her eyes, she saw a pool of her vomit on the floor in front of her. The defendant presented her with a bucket into which she retched several times. She recalled the defendant then said something about getting her home but she told him she just wanted to lay down. She said her memory was foggy after that.

[57] When it was suggested that she was inside the bathroom when she vomited, the complainant could not remember. She did not remember going to the defendant’s vehicle but remembered getting into it. She did not remember telling the defendant where she lived. She remembered that he drove her home but did not recall the journey there. She did not recall getting into the house, but she woke up on her couch the next morning. When asked if she invited the defendant to come inside her house, she could not remember.

[58] When asked in cross-examination how much she drank, the complainant was only able to say that she was free-pouring vodka into large wine glass mixed with a full can of cola. She remembered finishing two drinks but might have had third one as well. Given the size of the glass and the volume of mix, it is quite possible that each glass contained up to 4 ounces of vodka. If she had three glasses, then she may have had 12 ounces of vodka and several shots of liquor on top of that.

2.2.2: Evidence of the Defendant

[59] The defendant testified that the only arrangement to meet at his tavern are those found in the Facebook messages. He wanted her to park around back because no one was supposed to be there due to COVID restrictions.

[60] Meeker testified that while driving from Ottawa, he had something to eat. He recalled that when he learned the complainant had not eaten that day, he suggested they order some food in, but she declined because she was dieting. When asked why they could not get food from his kitchen he answered that the kitchen was not operating that day.

[61] He said that he had not consumed any alcohol that day because he was driving all day.

[62] The defendant testified that the complainant arrived with a bottle of vodka and three cans of Diet Pepsi. She poured her own drinks to a 16-ounce wine glass and added a full can of pop plus an unknown amount of vodka. The defendant was drinking wine. He said he had only one glass, but it was a large one. He also produced three chilled bottles of vodka two of which were flavoured because he liked cold drinks.

[63] The defendant said that they sat at the bar table identified by the complainant. At first, she sat on the bench, and he sat on a tall chair where they talked and drank. He said that the complainant told him that he should drink more to catch up with her, so he had shots from the cold, flavoured bottles of vodka.

[64] He said they talked about many subjects including music well into the evening. He said they talked about her past and current partners, education, but mostly music. He said they talked for four or five hours and “covered a lot of ground.” He did not say whether or not they drank for that whole time.

[65] At the material time, the tavern had a jukebox near where they were sitting. He said that while talking about music, he showed CP how it worked and that its inventory of music stretched from oldies to modern rock.

[66] The defendant said that around 9:30 or 10:00 o’clock they started to dance. He said they danced between 45 and 60 minutes. He said that when they got up from the table, CP was fine and vibrant. He did not think she was inebriated because she seemed normal to him. She spoke clearly and without a slur. When she danced her coordination was good but there were some challenges whilst jive dancing because she is taller than he is. He said she seemed fine while dancing.

[67] The defendant stated that they danced several different styles, including slow dancing that involved one of his arms around her waist the other holding her hand. He said it was during a slow dance that they kissed. He described the initial kissing as “mutual” and “exploratory” which led to more mutual kissing and then touching over the course of the evening. He said that when they danced, he touched her breasts and buttocks. When asked if CP participated in all of the sexual activity while dancing he answered, “One hundred per cent.”

[68] Meeker testified that after they danced, they returned to the bar table at which point he believed that from all that had happened that “there was sexual interest.” He said that when they got to the table, the complainant sat on one of tall chairs and was facing him. He said he stood in front of her. He kissed her when, as he testified, “it escalated from there” with him touching her breasts above and below her top, touching her buttocks, and then her vagina. In cross-examination, he said that CP initiated the first kiss. The defendant said the escalation was slow, taking probably half an hour until he touched her vagina. He said he undid her top button but because her pants were snug, and that she voluntarily undid the other buttons and slid her pants down for him to just below the level of her underwear. He said that at point, “I played with her vagina until she had an orgasm.” He said he touched her vagina for approximately 10 minutes, using one or two fingers to penetrate her for some those minutes and stimulating her clitoris for the rest of the time. He said she never tried, nor told him, to remove his hand from her crotch but was instead moaning, kissing and embracing him while he touched her.

[69] The defendant testified that the complainant did not tell him to stop by either words or conduct. He said he took her kisses and touching of him while he kissed and touched her as “an affirmative sign to continue.” Similarly, he said when she undid the remaining buttons, lowered her pants and embraced him as he penetrated her that he felt that she wanted him to touch her vagina. He said that had she said no he would have stopped immediately.

[70] Meeker said that after CP climaxed, she brought her pants back up and they continued to kiss and talk. The defendant said that he had no concerns about her ability to communicate and that there was no concern about her level of intoxication while they engaged in all of the sexual activity. After 10 or 15 minutes of kissing and talking he said the complainant went to the bathroom and he sat down. He said it was now nearly 1:00 a.m. and time to go home. He said he tidied up while she went to the bathroom.

[71] The defendant said that it was taking a while for CP to return so he went to the bathroom, knocked and asked through the door if she was okay. When she did not respond, he said he entered the bathroom and found her lying on the floor. He said he was concerned and checked to make sure she was alright. He recalled she said she wanted to lie down but he told her she could not do that in the bathroom. He said he helped her up and started walking with her out of the bathroom when she said she was going to be sick and dropped to her knees. He said he retrieved a bucket in case she vomited. He said she threw up but not much. He testified that he told her he had to bring her home, but she said she just wanted to lie down and stay there. He said that after 15 or 20 minutes of resting, he helped her up and brought her to the table where they had been sitting earlier.

[72] Meeker said that although CP was sick, she continued to communicate in a cogent and responsive manner. He said that she told him she was embarrassed and was apologizing for being sick. He said he told her that it was not a big deal and “everything’s good.” He then brought his car around, helped her get in and left the tavern. He said when they left, she was walking fine but he held her arm because he was worried she might collapse again. He said she had no trouble getting into his vehicle.

[73] The defendant said that he did not know where CP lived and that she gave him directions as he drove. When they got to her house, the defendant said she had no trouble ascending the stairs to her front door, nor did she have any trouble locating and using her house key. He said that she invited him in but he said it was late and time to go home.

[74] The defendant testified that there was never a time at the tavern when he was concerned about CP’s ability to consent to sexual activity. He said everything that happened that night was mutual and “two directional” and they would each initiate, and respond to, kissing and touching each other. The defendant said that the complainant enjoyed it as much as he did because of the ways she moved, responded, and moaned.

[75] As an owner of a tavern, the defendant has years of experience in dealing with drunk people. He agreed that usually people’s apparent intoxication evolves as they drink. However, he said that sometimes people seem sober one minute then drunk the next. In this situation, it was suggested that when the defendant saw CP on the bathroom floor he knew she was passed out drunk. He said, “I didn’t know if she was intoxicated. I didn’t know if she slipped and fell. I didn’t know what happened to her.” He explained that he was shocked to see her lying there because she had not exhibited any signs of intoxication before that moment. He added that they had not consumed quickly but over many hours and that while they drank together, he was not making her drinks or paying attention to how much vodka she combined with the mix. He was also not paying attention to how many shots she drank but he knows she had some.

[76] He agreed that they were both very drunk that night. The defendant said that if they had not been drinking nothing sexual would have probably happened. He also said that he felt bad at CP can’t remember what happened whereas he did despite his own intoxicated condition.

[77] The defendant stated that it would be easier to answer questions had six months not passed between the event and getting charged. He also stated that the entire evening was videorecorded on high definition security cameras which pointed directly to the area where it all happened. Together with evidence from the person who installed the cameras, the defendant stated that the security system can only hold several weeks worth of video before it was overwritten. He tried to recover the video but could not. He said that the video “would show clear as a bell exactly what happened on that day.”

2.3: The Events after April 28, 2021

[78] The complainant said that when she woke up on her couch the next morning her vagina was uncomfortable. She said her anus and back hurt, too. She speculated her bottom hurt because at some point she had defecated in her pants. She said her lower back hurt like there had been a weight on top of her and was unsure if they might have had intercourse on the floor. The complainant said she was worried that other sex acts happened that she could not recall.

[79] The following exchange of messages were made throughout the day starting several hours after the event on April 29, 2021. Those messages and times are reproduced as follows:

8:34 a.m.

PM: Good morning :) Hope you’re feeling great today. I’d be happy to drive you back to your car when you’re free. Lmk. Yesterday is in the past. Don’t worry at all about anything that happened yesterday. Next time we will eat and have no drinks or just a glass of wine.

11:37 a.m.

CP: I’m humiliated 🤦‍♀️. Omg. I don’t even think I had that much to drink. Did I? It hit me pretty hard. I haven’t gotten drunk and puked since I was in my 20s! 😖 I am so sorry Perry. Did I puke on your floor?

11:39 a.m.

PM: It’s all good. Well you wanted to get drunk. Teeheehee. Goal accomplished. Zero judgement. I’m in town. I can give you a lift to your car whenever you want.

11:40 a.m.

CP: No. I’ll use that for my walk. I’ll walk down and get it later. Thank you though. Did I barf on your floor?

11:40 a.m.

PM: It’s super cruddy out. Raining. I don’t mind. Up to you.

11:41 a.m.

PM: Maybe a bit. It’s all cleaned up. You didn’t eat! So it was not messy.

11:41 a.m.

CP: Oh nooooooo!! Perry I’m so sorry. I don’t know what happened to me?

11:42 a.m.

PM: We have all been there!

11:43 a.m.

CP: Oh yeah? When was the last time for you? I should not be getting drunk and barfing in my 40s 🙍‍♀️

11:44 a.m.

CP: Again I’m very sorry…So humiliating

11:44 a.m.

PM: Sadly it was about 8 months ago. Same thing. Didn’t eat!

11:44 a.m.

CP Really!?...OK that makes me feel a little better actually

11:53 a.m.

PM:

11:54 a.m.

PM: Happy to give you a lift. Lmk. It’s super cruddy out.

12:16 p.m.

CP: Thank you Perry. It’s OK though. I go for a walk every day. So it’s no biggie to walk down there.

12:36 p.m.

PM: OK. Sounds good. ;)

5:36 p.m.

CP: Just picked up me car 🤪 Thank you for taking care of me 🙍‍♀️…Sorry 😬 . I had a lovely time aside from the last part! LOL…we must never speak of this ha ha 😘

5:36 p.m.

PM: Mum’s the word!!

5:40 p.m.

PM: And yes, it was a fun evening. At least it quit raining.

5:41 p.m.

CP: Ahh it was lovely! I like the rain.

5:41 p.m.

PM: That’s when to be snuggled under the covers.

[80] The parties then ended their conversation on April 29 ,2021 with exchanged texts about the defendant’s house purchase in Ottawa. The complainant testified that the phrase “aside from the last part” referred to her throwing up, and not being assaulted.

[81] With respect to the conversation of April 29, CP testified that she was simply being polite with him. She said she declined his invitation to help retrieve her car because she was trying to avoid him.

[82] On April 30, 2021, the complainant went to the local hospital. She said she went because she had never been in such an intoxicated state before and was worried that the defendant might have drugged her drinks. She did not think the defendant would do that, but a friend of hers suggested she get checked just in case. She testified differently in cross-examination by saying she thought Meeker had drugged her because she could not believe she could get herself intoxicated to the point of vomiting. When speaking to the police in September 2021, she told them, “If Perry could put something in my drink, he could do anything.”

[83] CP said that when she went to the hospital, she wasn’t sure what to do. She said that because the defendant was her friend she didn’t want to get him into trouble.

[84] The hospital report that was filed noted some redness on the complainant’s perineum being the area between the anus and the vulva. There was no medical evidence that the redness was caused by sexual contact, her defecation, or some other cause.

[85] The complainant also told the police that by defecating, that might have prevented the defendant from doing more than digitally penetrating her. However, when asked, she conceded that she had no idea when she defecated and that it might have happened when she got home.

[86] She also speculated to the police that it was possible that the defendant video recorded the event but said in court that she was imagining the worst. When asked why she imagined the worst, the complainant testified that she only remembered a small portion of what happened, and it was natural to fear the worst. When it was suggested that when speaking to the police about her complaint that “Your brain [was] going on the worst-case scenarios, but you really don’t remember?” CP replied, “Yes.”

[87] On May 1, 9, and 26, 2021 the defendant sent the following texts to the complainant without any reply from her:

May 1

PM: Hope you’re having a wonderful weekend.

May 9

PM: Happy Mother’s Day! Hope you were treated very special!

May 26

PM: How are you doing? Thinking of you cramming for exams soon.

[88] CP testified that she did not respond to the defendant because she was not sure if she should say anything to him.

[89] The next, and last, time the parties communicated by text was on July 6, 2021. The very lengthy exchange is reproduced in its entirety as follows:

PM: I know we had an awkward night. I’ve reached out a few times. Hoping we can get over it an enjoy a drink on a patio or some live music.

CP: I’ve needed time to process Perry. Yes initially I was embarrassed that I was so out of it. But Perry what you did while I was in that state was so wrong. I’m very hurt by it. That’s what I’m having a hard time with.

PM: I agree. But remember we were both very drunk. I too am embarrassed. I tried to reach out many times. Without saying anything I too was embarrassed.

CP: You know I totally trusted in you and that I put you on a pedestal. I’ve just had a hard time processing that night. I felt you broke that trust. If the roles were reversed, you would’ve been safe with me.

PM: I have no idea how you got so drunk. There was only about 4 ounces out of the bottle. You kept asking me to do shots to catch up. I should not have done so.

CP: Yes. I don’t remember ever being like that. Like ever.

PM: You’re right. It shouldn’t have gone that far. I totally apologize. But please understand we were both drunk. Not just you. I tried reaching out many times. It bothers me tremendously. Even the day after. I wanted to drive you to your car. At least we could have sorted the mess out then.

CP: But I never would’ve done that to you Perry. You would’ve been safe with me. I totally trusted you. I thought I was safe with you. And like I said, I’m just having a very hard time processing that.

PM: You may not recall but you lead [sic] the dance. I shouldn’t have responded. For that I’m sorry.

CP: I’ve known you for over 20 years. And I totally trusted you.

CP: Really? I don’t think so. That’s just salt in the wound.

PM: And I know we could have had sex that night. I stopped that from happening. Small consolation I know. C, I didn’t even start the process. Really.

CP: What the hell are you talking about? Perry I know you better than that. Don’t make me regret trying to explain to you.

PM: You kissed me and then it went from there. It got out of hand for both of us. I tried many times to reach out. I’d prefer this conversation in person.

CP: Perry when someone is in that condition, you don’t do anything.

PM: What happened is not at all me!!! We were both intoxicated. And you fed me about 10 shots to “catch up”. That’s totally not me. I hope you know that. I will leave it up to you. I’d love to be your friend and clear the air. No need to answer today.

CP: Yes, I didn’t think a text conversation would go well. I think you are saying those things because you’re nervous and it’s just not fair or right. Salt in the wound. You should’ve just owned up and apologized. Rather than trying to put the blame on me. I’m blameless in this Perry.

PM: I believe we are both blameless. Sadly it happened. The worst part is I drove incredibly drunk.

CP: I just wanted you to own up and apologize Perry. Instead you said I started it? That’s so hurtful. I didn’t do anything Perry. Clearly I will not get the closure from this that I needed.

PM: No. All I said was you kissed me. Did that start it? Perhaps. Regardless we both should have stopped it. And I did apologize. I hope with time we can meet and discuss this in person.

CP: I’m not going to argue with you about it. I know what happened and I know I didn’t do anything to start it or initiate it and you shouldn’t have done what you did. It was wrong because of the state I was in. You know that. I also understand that it’s probably not something you want to talk about through text. But you shouldn’t have said those things. Like that “I” kissed you. I didn’t. Perry If I was going to kick up a fuss about it I would have done it by now. If you actually care about how I was feeling you wouldn’t be trying to cover your ass through text. It’s very disappointing. For some reason I still thought you might redeem yourself in my eyes.

PM: Then let’s meet in person. I’m not trying to cover my ass. We both were very drunk. You’re right it shouldn’t have happened. For that I apologize.

CP: I don’t really want to talk about it anymore Perry. I don’t intend on making a fuss about it. I was very hurt by you, so you can understand that talking in person wouldn’t be able to happen. I’ve actually been very nervous that I might run into you around town. I’m hurt that I can’t go watch live music on your patio anymore. And I’m hurt that I don’t think I can be your friend.

PM: I am very sad about this.

CP: I have bald [sic] my eyes out several times. You were the one male in my life that I thought I could trust.

PM: And I’m sad about that. Please know that I am very sad I disappointed you.

CP: Thank you for saying that. It took me a long time to talk about it. It’s humiliating and awkward and very disappointing.

PM: I don’t know if I can make it up to you somehow. But I’d like to try.

CP: I really don’t know what to do. I just wish that never happened. And I am upset that I feel like I can’t do the things I used to do anymore. And I’m upset that I feel afraid to run into you.

PM: I wish it never happened, too. I hope you come back into the pub for live music. And I hope in time we can be friends again.

CP: And how do I do either of those things?

PM: I totally don’t know. I will say goodnight. At least I’m glad we finally talked about it. However uncomfortable.

CP: Yes. I didn’t know if you knew why I wasn’t responding. And I wanted you to know it wasn’t because I was embarrassed that I got so intoxicated.

PM: I would have preferred to meet the next day. Go over the mess of what happened.

CP: I couldn’t. I didn’t want to see you. I needed time to think.

PM: Understood. I will leave it up to you. I’d love to meet. However unpleasant. What happened is not me. I’m sorry I betrayed your trust.

CP: At least there’s that. Thank you.

PM: You’re welcome.

[90] When the defendant was pressed that his texts to the complainant on July 6, 2021, were tantamount to a confession, he responded that he was sorry that he let her down by engaging in consensual sexual activity while they were both drunk. He said he knew what he did with her was morally wrong, but not illegal. While he acknowledged to her that they were both drunk, the defendant did not say or imply that he believed she was too drunk to agree to what they did.

[91] On September 29, 2021, CP went to the police and reported this situation as a crime. She said she waited because she still was wanting to be the defendant’s friend, she was confused, and that she heard rumors that he might have done it to others.

3.0: ISSUES AND ANALYSIS

3.1: Did the Crown prove lack of consent to the requisite legal standard?

3.1.1: Positions of the Parties

[92] The Crown submits that the complainant was too drunk to consent to any of the sexual conduct when it happened. They submitted that she was incapable of consenting at the time the sex occurred.

[93] The Defence submits that while the complainant was heavily intoxicated, she was still aware of what was happening and had both the capacity to consent and the ability to communicate it by words or actions.

3.1.2: Applicable Legal Principles

[94] Non-consent for the criminal act (actus reus) of sexual assault means that the complainant in her mind consciously did not want the sexual activity to take place. Since consent is subjective, the court must determine the complainant's state of mind at the time of the particular sexual activity or activities. The focus is therefore on the complainant’s state of mind and not on the perceptions of the accused. Evidence of the surrounding circumstances, including the complainant's conduct, leading up to, during, and after an alleged sexual assault are relevant to the determination of whether or not a complainant consented. Accordingly, if the trier of fact finds beyond a reasonable doubt that the complainant did not consent, the criminal act has been proven.

[95] Where a complainant is incapable to consent, then there can be no consent in law. In other words, capacity is a prerequisite to consent. Where a complainant is intoxicated, they may be found to be incapacitated where the prosecution proves beyond a reasonable doubt that they were incapable of (a) understanding the nature of the act, (b) appreciating the identity of the other person, or (c) appreciating that they may decline to participate: R v. G.F., 2021 SCC 20.

[96] It is important to note that drunkenness per se is not the equivalent of incapacity. Nor is incapacity the same as alcohol induced imprudent or regretful decision making, memory loss, or loss of inhibition or self-control: R. v. Tariq, [2016] O.J. No. 5386 at para. 94.

[97] With respect to loss of memory, it was observed by Ducharme J in R. v. J.R., [2006] O.J. No. 2698 (S.C.J.) at para. 18 that:

Absent expert evidence, a loss of memory or a "blackout" is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. …In a sexual assault case, this is particularly unfortunate since, as was noted in R. v. Esau (1997), 116 C.C.C. (3d) 289 at 296 (S.C.C.), "[t]he parties' testimony is usually the most important evidence in sexual assault cases." … In Esau at 297, Justice Major said of the complainant's memory loss, "[a]ny number of things may have happened during the period in which she had no memory." Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.

[98] This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But for such evidence to be probative, some expert evidence will almost always be necessary: R. v. J.R., supra at para. 20.

[99] There is a difference between passed out drunk and suffering from blackout. Passing out is a deep state of sleep or unconsciousness, whereas a blackout is a conscious person, a somewhat conscious person who may still be doing and saying things, but afterwards have no memory: R. v. A.M., [2022] O.J. No. 854 (C.A.) at para. 12.

[100] Although the complainant's testimony is typically the only direct evidence regarding their subjective state of mind, "credibility must still be assessed by the trial judge, or jury, in light of all of the evidence": see R. v. Ewanchuk, [1999] 1 S.C.R. 330, at ¶ 29. In defending a sexual assault allegation, it is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against their assertion that they, in their mind, did not want the sexual touching to take place. The trial judge must consider whether the totality of the complainant's conduct is consistent with their claim of non-consent. Accordingly, it is necessary for the trier of fact to consider the circumstances surrounding the alleged sexual assault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to and following the incident. Circumstantial evidence can assist the defence in raising a reasonable doubt on the issue of consent; it can also assist the Crown in proving non-consent: see Lisa Dufraimont, "Myth, Inference and Evidence in Sexual Assault Trials" (2019) 44:2 Queen's L.J. 316, at pp. 328-29; R. v. Steele, [2021] O.J. No. 1519 (C.A) at ¶ 53-4; R. v Rose, [2021] O.J. No. 3188 (C.A.) at ¶ 22 – 23.

3.1.3: Analysis

[101] The defendant admitted to kissing CP, fondling her breasts and buttocks, and digitally penetrating her vagina. The complainant gave direct evidence that she remembered being digitally penetrated and that she did not consent by calling his name in protest. She said she did not recall being kissed or fondled but said that she was never sexually or romantically interested in the defendant and would therefore never have consented sexual activity of any kind with him.

[102] C.P. was an earnest, sincere, articulate, thoughtful, and intelligent witness. She was also argumentative and at times was a difficult witness who seemed reluctant to give straight answers to straight questions. For reasons I will explain, I am not satisfied beyond a reasonable doubt that the Crown has proven that she did not consent to the sexual acts. She might not have consented, but I am not sure.

[103] First, I cannot say that I believe CP when she said she was never romantically interested in the defendant or that she would never have sex with him. After reviewing all the texts, I find as a fact that beginning in July 2020, the parties’ relationship progressed deeper: from friends at first to lovers on the night in question. Following their first encounter in July 2020, they invited each other to events (clubs, boating) where other people would be present and mostly in public. Later, there were invitations to go out together in public alone, such as the comedy club for example. After that, they arranged to meet alone in private. This evolution alone does not mean the relationship was heading towards sex. However, when combined with the tone, frequency, duration, and contents of their texts it is clear on this record that they were courting each other. As time went on their communications were increasingly intimate such that they revealed themselves more deeply to each other by discussing their individual interests, plans, and goals. They conversed often and for long sessions, often lasting nearly an hour.

[104] The content of their messages was often flirtatious in nature with many erotic overtones. Several examples will suffice to illustrate my finding. In one conversation there was chatter about CP having a sleepover with friends that led to jokes about pillow fights and tickling that caused the defendant’s “mind to swirl.” In another, CP told the defendant that he would be the pimp to her and friends being whores. Also, when discussing her diet, the complainant told Meeker that her diet would help her breasts and buttocks look good in a summer dress to which the defendant said she would look very sexy. She also told him she had a dream about him but was coy when he wanted to hear about it, and he said that he had persuasive techniques to make her tell. CP wanted to see the defendant in his bar alone for a “drink-e-pooh”. They exchanged many heart and kiss face emojis. They talked to each other about “dates” and “date nights.” They often told each other how much they wanted to see each other and after they did, they described their time together as “wonderful”. She often called the defendant “darling.” I do not believe the complainant when she said that all of this was just talk between friends. I find that the two of them were flirting and that she knew it.

[105] I find as a fact that they were rapidly becoming just more than friends when they decided to meet alone at his bar and that when she went there, she had a sexual interest in him, just as he did in her. I not convinced by the evidence when she said would never engage in sexual activity with the defendant.

[106] Second, I was troubled by what appeared to be after-the-fact reasoning by the complainant. For example, she believed that she must have vomited because the defendant probably drugged her. She said she had never reacted that way to drinking before and therefore he must have spiked her drinks. She did not appear to consider another and more probable reason for why she vomited; namely, that she drank a lot on an empty stomach and was also likely doing vodka shots which she said would probably make her sick to her stomach. She also told the police that defecating probably prevented worse things from happening to her. She implied that she defecated at the bar, but the truth is that she did not know where or when that happened. This sort of reasoning may well have influenced her to believe that she did not consent when she may well have in all the circumstances.

[107] Third, while I accept that she was very intoxicated, there is no satisfactory evidence that she was incapable of consenting at any material time. There is no doubt she was unconscious in the bathroom. I am satisfied there was no sexual activity after that unfortunate experience. There is no proof beyond a reasonable doubt that she was incapacitated when the sexual activity occurred.

[108] The chronology of what happened rests solely on the evidence of the defendant. He said that they started dancing around 9:30 or 10:00 and danced for up to one hour, putting them to 11:00 p.m. or so. There was no evidence whether they drank during that time. After they danced, the defendant said they kissed and fondled at the table for another half hour or so before he penetrated her digitally. When that was finished, they kissed for up to 15 minutes. It was at that point she went to the bathroom. There is no evidence how long it was before she went to the floor. There was no conclusive evidence of who drank what, if anything, from the time they started dancing onward. The best evidence is that they drank over several hours, possibly during and after dancing as well but I cannot be sure. In other words, I have no firm evidence to connect the time she passed out to the time she stopped drinking. Nor is there reliable evidence of the timing of the sexual activity relative to when she stopped drinking, if at all.

[109] The evidence of the complainant is she remembered being penetrated and protested. She was thus aware of the nature of the act, who did it, and that she could choose to decline to participate. Therefore, despite her level of intoxication she had the capacity to consent to the penetration. With respect to the kissing and other touching, I am not sure I believe her evidence that she did not remember it happening. She may have suffered a blackout to account for her lack of memory, she may have experienced selective memory after the fact, she might not want to admit to herself what happened, or there may be some other reason why she cannot remember, but I unable to be sure on this evidentiary record.

[110] Fourth, she repeatedly testified that she did not remember most of what happened. Yet on July 6, 2021, after the defendant told her she led the dancing and kissed him, she replied that she knew what happened and she knew she didn’t do anything to start it or initiate it. She told him that he shouldn’t have said things such as she kissed him because “I didn’t.” These statements suggest that in her mind she that she remembered everything. There is a material contradiction between her evidence and her texts of July 6,2021 because both cannot be true. I just cannot say which, if either, is true.

[111] Fifth, and connected to the last point, CP’s texts of July 6, 2021 and her trial evidence that she did not consent are contradicted by her texts from April 29, 2021 where she texted twice that she had a lovely time. These texts raise the very real possibility that not only did she remember all the sexual activity but that she was desirous, and approved, of what happened. She testified that she was only being polite when she wrote those texts. Maybe, maybe not. She chose her words and was under no pressure for time in choosing them nor did she have to text at all. In light of all the circumstances, I find that she probably meant it when she said she had a lovely time.

[112] Sixth, when considering the months leading up to the night, the night itself, and the post-event circumstances, I am not sure that the complainant’s reaction by going to the hospital and then to the police was not the product of guilt or confusion caused by alcohol induced bad decisions which she, like the defendant, made on the night in question and then appeared to regret.

[113] For all these reasons, I am unable to conclude beyond a reasonable doubt that the complainant subjectively did not consent to any of the sexual activity with the defendant. This finding must result in a verdict of not guilty. However, in case I am wrong, and the prosecution did prove a lack of consent beyond a reasonable doubt, I must assess whether the Crown has proven the criminal intent of the defendant to the same high burden of proof.

3.2: Did the Crown prove that the defendant knew or was willfully blind or reckless that there was no consent?

3.2.1: Positions of the Parties

[114] The Crown submits that the whole of the evidence proves that the defendant knew or was reckless that CP did not consent. They submit that there is no air of reality to the defendant’s claim that he honestly believed she wanted to have sex. They point to the nature of the relationship leading up the events and to his post-event statements to her that he was sorry for breaching her trust in him.

[115] The defence submits that on the same evidence that not only is there an air of reality to his belief that she was consenting, but his belief was honestly held.

3.2.2: Applicable Legal Principles

[116] With respect to the mens rea (criminal intent) of sexual assault, this element requires the prosecution to prove beyond a reasonable doubt that the accused either knew, or was wilfully blind or reckless, of a lack of consent by the complainant. For this element, the focus shifts to the mental state of the accused: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, 2011 S.C.C. 28; R. v. Barton, 2019 SCC 33, 2019 S.C.C. 33; R. v. G.F., 2021 SCC 20, 2021 S.C.C. 20; s.273.1 Criminal Code.

[117] If the defendant is mistaken and has not been reckless or willfully blind to the complainant's consent, and has taken reasonable steps to ascertain consent, they may be able to put forward a defence at the mens rea stage of the analysis: Ewanchuk, at ¶ 25, 47 and 49; Barton, at ¶ 90 – 94; s. 273.2 Criminal Code. The defendant’s belief must be that the consent of the complainant was voluntarily and clearly expressed by affirmative words or conduct. Where there is an air of reality to the defence of mistake, the prosecution must disprove this defence beyond a reasonable doubt.

3.3.3: Analysis

[118] I found the defendant to be an intelligent, articulate, and sincere witness, just like CP. Unlike the complainant, he was always straight forward and forthcoming as a witness. I found him to be internally consistent, externally consistent with the texts, and largely uncontradicted by a vigorous and thorough cross-examination. Meeker was credible and reliable. Wherever his evidence diverges from that of the complainant, I accept his evidence over hers.

[119] I find as a fact that the defendant honestly believed that his relationship with the complainant progressed from platonic friends to sexual partners. His belief that they were both interested in romance and sex was not only honest, but entirely reasonable in all of the circumstances. This belief is further supported by the communications prior to April 28, but also by his texts to CP after the event wherein he clearly wanted to continue their relationship.

[120] I accept the defendant’s evidence that he knew she was drunk, but not to the point of being unable to function mentally or physically until the time he found her on the bathroom floor. Prior to collapsing in the bathroom, she spoke and thought clearly. She carried on meaningful and long conversations with him. There were no apparent coordination problems and they danced for quite some time. She was able to decide to drink or not. She poured and consumed without difficulty. She was cognizant of his condition and exhorted him to drink more. It was therefore reasonable for Meeker to think that even though CP was drunk she had sufficient capacity to make decisions and act on them at the time of the sexual activity.

[121] I accept his evidence that as they danced, they kissed each other and that she allowed him to fondle her breasts and buttocks while they embraced each other. I accept his evidence that when they returned to the table, she willingly allowed him to touch her breasts above, then below, her blouse. I accept his evidence that they kissed and embraced for quite a while before he undid her pant button, and she slid her pants down voluntarily to expose her vagina. I accept his evidence that she embraced him and moaned while he penetrated her for several minutes. I accept his evidence that she climaxed and after she did, she pulled up her pants and they continued kissing for nearly another 15 minutes. He was never contradicted on this evidence. The evidence of mutuality and reciprocity in sexual activity amounted to reasonable steps by him to find out or confirm that she was consenting. I accept his evidence that he would have stopped had she said so. By extension, I find it likely in the circumstances that he would have stopped if the reciprocity and mutuality of touching had ceased. I accept his evidence that she seemed well enough to willingly engage in sex until he found her on the floor of the bathroom. I accept Meeker’s evidence that she invited him into her house after he brought her home. Even if I did not believe his evidence, at minimum the cumulative effect of the defendant’s testimony and the texts raises a reasonable doubt that he knew or ought to have known CP did not want to have sex with him on the night in question.

[122] The text exchange the following day in which the complainant said she had a lovely time except for being sick is entirely consistent with his belief that she consented to the activities that caused her to describe them as she did.

[123] While potentially self-serving, I accept that the defendant genuinely wished that he could have retrieved, and presented, security footage from the bar. In all the circumstances I find this evidence is a protest of innocence which tends to raise a reasonable doubt about his criminal intent.

[124] Furthermore, I reject the submission that the defendant’s texts of July 6, 2021 were essentially a confession of criminal wrongdoing. I accept his evidence that his apologies and acknowledgments that he broke her trust were not statements that he had sex without her consent but rather statements that what they did was morally, not criminally, wrong.

[125] When reviewing the totality of the evidence, I find that the defendant honestly and actually believed that on April 28, 2021 the complainant was a willful and equal participant in the all sexual activity he admits to. While his honest belief does not have to be reasonable, I think it was reasonable for him to believe that because of her conduct before, during, and after the event that she was fully engaged in voluntary sexual activity with him.

[126] Therefore, I find that the prosecution has not been able to prove to the criminal intent of the defendant beyond a reasonable doubt.

4.0: CONCLUSION

[127] After reviewing, weighing, and considering all of the evidence and upon hearing the submissions of both parties, my verdict on the sole count of sexual assault is not guilty. The charge is dismissed.

[128] In light of my verdict, the defendant’s Charter application to stay the proceeding because of delay is moot and there is need for me to decide that application.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

[1] Winking face emoji [2] Grinning face emoji [3] Kissy face emoji [4] Heart emoji [5] Lips emoji [6] Zany face emoji