Court File and Parties

Court File No.: YO-18-0006-00AP Date: 2019-04-29 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Appellant – and – S.B., Respondent

Counsel: Ilana Mizel, for the Crown Andrew Bradie, for the Respondent

Heard: December 6, 2018

Reasons for Disposition on Summary Conviction Appeal

Verbeem J.

Nature of the Appeal

[1] The Crown appeals against a verdict acquitting the accused, S.B., a young person within the meaning of s. 2 of the Youth Criminal Justice Act, S.C. 2002, c. 1, on a single count information alleging that on May 30, 2017 he sexually assaulted E.D., contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[2] The verdict followed a brief trial on July 18, 2018, before the Honourable Justice G. Hunter, during which the Crown called a single viva voce witness, E.D. With the accused’s consent, the Crown also filed as exhibits, two reports from members of the Centre of Forensic Sciences (“CFS”) together with e-mail correspondence, dated July 16, 2018, from CFS forensic scientist Sobia Malik. Through her e-mail correspondence, Ms. Malik provided additional technical information related to D.N.A., together with opinion evidence that explains the significance of the findings, opinions and conclusions set out in both CFS reports. The accused admitted the truth of the content of the CFS reports and e-mail correspondence without requiring further proof in that regard.

[3] The defence did not call evidence.

[4] Following E.D.’s evidence, the parties made brief submissions to the trial judge who then delivered correspondingly brief oral reasons in which he acquitted the accused. The Crown contends that he erred in so doing, and consequently, seeks an order setting aside the verdict and directing a new trial.

[5] As set out more fully below, the Crown generally submits that the trial judge’s misapprehension of an aspect of the complainant’s evidence led to a palpable and overriding error of fact that she was unsure if the accused heard her say, “No” in response to his alleged sexually assaultive conduct. The Crown further asserts that the trial judge committed an error of law or mixed fact and law, by finding that the Crown failed to establish beyond a reasonable doubt that the accused had knowledge of the complainant’s absence of consent. During the course of its submissions on appeal, the Crown further asserted, in effect, that the trial judge’s brief oral reasons were functionally inadequate, in all the circumstances.

[6] For the reasons that follow, I do not give effect to any of the grounds for appeal asserted by the Crown. As a result, the appeal must be dismissed. I will explain the basis for that conclusion below, in accordance with the following structure. I will first review: the evidence available to the trial judge; the parties’ submissions at trial; and the trial judge’s reasons for verdict. I will then identify the standards of review engaged on this appeal. Thereafter, I will address each of the Crown’s asserted grounds in turn, during which I will, by necessity, address the adequacy of the trial judge’s reasons.

The Evidence at Trial

(a) E.D.’s Testimony

[7] E.D., who was 17 years old at the time of trial, testified that she and the accused were in a dating relationship some time in 2016 or 2017, which she terminated in January 2017. In May 2017, and specifically the day before the alleged sexual assault, she contacted the accused through the social media platform known as “Snapchat”, with the intent of purchasing marihuana from him. In response, he offered to sell her an ounce of that substance “for a cheap price”. She replied through a text message, in which she asked him to pick her up after she was finished working. He did not respond.

[8] The following day, E.D. electronically communicated with S.B. and advised him that she was scheduled for volunteer work from 3:30 p.m. to 7:30 p.m. at a hospital located in the downtown core of the City of Windsor. S.B. replied sometime between 5:00 p.m. and 5:30 p.m. and advised her that he was “nearby" and would meet her outside. E.D. intended to purchase marihuana from him. As a result, she unsuccessfully attempted to obtain cash from an automated teller machine (ATM) inside the hospital and then waited for S.B. outside. Eventually, he arrived on foot and the two set out for a bank located several blocks away, so that E.D. could obtain funds.

[9] On their way to the bank, they stopped at a convenience store where E.D. attempted to withdraw cash from an ATM. As she did so, S.B. grabbed her hips with his hands and started grinding on her from behind by pressing the lower portion of his body against her buttocks. E.D. could not recall if S.B. said anything to her while he did so. She did not tell him to stop. Instead, she “laughed off” the contact. E.D. was unable to withdraw money from the ATM. They left the store, but quickly returned after S.B. suggested that she may have been attempting to withdraw funds from the wrong account. E.D. used the ATM again. While she did so, S.B. grabbed her hips again and pushed his lower body against her. E.D. did not say anything while he did so. She was still unable to withdraw money from the ATM.

[10] S.B. and E.D. next attended a bank, where her attempts to obtain money from an ATM were again unsuccessful. While she was accessing the ATM, S.B. grabbed her hips from behind and pressed his lower region against her buttocks. He told her that he missed her. E.D. does not think she said anything while this conduct occurred.

[11] As they left the bank, S.B. told her that he wanted to “ hang out ”. E.D. said that she should return to the hospital. S.B. persisted and told her that he “wanted to show her something”. She relented. They walked to a nearby above-ground parking garage and climbed the stairs to its seventh floor. Immediately, E.D. walked to the structure’s outer wall, where she bent at the waist and looked over the edge. S.B., who had followed her, grabbed her hips with his hands and pushed himself against her, while telling her that he missed her. He kissed her neck and turned her around, while trying to kiss her mouth. E.D. said, “ No ”. She turned back around and looked over the edge of the garage wall again. Initially, E.D. could not recall if S.B. said anything to her after she said, “ No ”. She stated that she thought that he heard her because she said it loudly. Subsequently, she testified that after she said, “ No ”, S.B. continued to say: “ Come on ”; “ Let’s do something ”; and “ I miss you ”.

[12] As E.D. looked over the edge, S.B. kissed her neck again, which she did not want him to do. He also: held her hips in his hands; grinded his lower region against her buttocks; and touched her breasts with his hand (over her clothes). E.D. thinks that in response, she repeatedly told him to stop. She testified that she was certain that she said, “ No ”. S.B. then rubbed her vagina over her clothes. E.D. told him to stop and said that she did not “ want it ”. S.B. did not stop.

[13] Instead, S.B. removed his penis from his pants. While E.D.’s back was facing him, S.B. said he wanted her “ to touch it ”. She said, “ No ”. S.B. grabbed her hand and pulled it towards him. She moved her hand back and said, “ No. Like, I don’t want to touch it. ” S.B. then put one of his hands on her hip and rubbed his exposed penis on the buttocks portion of her leggings. E.D. does not recall if S.B. was erect during the course of that conduct. She estimated that S.B. continued to rub his penis on her for a few minutes.

[14] As S.B. rubbed his penis against her, E.D. repeatedly told him to stop and told him that she did “ not want to ”. She does not recall if S.B. responded. E.D. did not give S.B., nor did S.B. seek, her permission to touch her in the way that he did and she did not want him to do so.

[15] Eventually, E.D. was able to push herself away from S.B., after which she immediately walked to the parking garage’s elevator. As she did so, S.B. put his penis back in his pants and caught up with her while she waited for the elevator. S.B. said, “ Sorry. I just missed you ” and he hugged her.

[16] E.D. and S.B. rode the elevator to the ground level together and walked back to the hospital, where E.D. finished her shift. She and S.B. were on the seventh floor of the parking garage for a total of 30 minutes.

[17] The following day, E.D. disclosed the alleged sexual assault to a teacher. Ultimately, the school principal informed E.D’s father about her disclosure. Accompanied by her father, E.D. attended on police, reported the incident and provided the leggings that she was wearing at the time of the alleged assault (which had not been washed).

[18] In cross-examination, E.D. agreed that sometime after their break-up, she and S.B. discussed reconciliation. Ultimately, they did not reconcile because in E.D.’s view, S.B. was pre-occupied with sex.

[19] On the day before the alleged sexual assault, E.D. agreed that she would buy an ounce of marihuana from S.B. for $140, and they agreed to meet the following day to complete the transaction. After meeting up with S.B. on the day of the alleged criminality, she engaged in extensive efforts to obtain funds for the marihuana purchase, during which she was gone from the hospital for much more than the 15 to 20 minute break that she was typically afforded during a shift. Ultimately, she was absent from work for almost an hour and, as a result, she was reprimanded two days later.

[20] E.D. confirmed that when she and S.B. stopped at the convenience store she did not say, “ No ” to S.B. when he was grinding against her, which was at a time when she was aware that he had a sexual interest in her. Instead, she “ laughed it off ” because she was hoping to buy drugs from him. After giving that evidence, she added, “ but I said no later ”.

[21] E.D. conceded that she ought to have returned to work by the time she and S.B. attended the convenience store for the second time, yet she and S.B. continued to walk farther away from the hospital in order to attend at the bank.

[22] After her unsuccessful effort to withdraw money from the bank’s ATM, S.B. persistently asked her to “hang out” with him. Despite being “ really late for work ”, E.D. finally agreed to “hang out” with him for a few minutes because she wanted some marihuana. Almost immediately after giving that evidence, she clarified that she was not expecting to obtain marihuana from S.B. that day. Instead, she thought that they might be able to complete their planned transaction the following week. Next, she testified that the purpose of “ hanging out ” with S.B. was to “ chat and catch up .” On specific inquiry, E.D. agreed that she and S.B. could have chatted and caught up during the 10 to 15 minutes of time that it would have taken them to walk to the hospital from the bank. Eventually, she conceded that she and S.B. did not need to go to the seventh floor of a parking garage in order to chat and catch up, and that is not what happened there.

[23] E.D. has no doubt that when S.B. initially tried to kiss her at the parking garage, she said, “ No ”. She further testified that S.B. was in a position to hear her say, “ No ”, but he did not do anything to indicate that he had, in fact, heard her. Instead, he continued to engage in the same behaviour that began at the convenience store ATM. There was nothing in what S.B. said or did that indicated that he heard her say, “ No ”, at that moment , but she testified that afterwards , there was. Specifically, after she turned away from S.B. when he tried to kiss her, he repeatedly said that: he missed her; he “ wanted to try it ”; and he wanted to “ put it in ”. She repeatedly said, “ No ”. Finally, she pushed him away, and they eventually rode the elevator down from the seventh floor of the garage and returned to the hospital.

[24] In re-examination, E.D. clarified that when she said that she “ laughed off ” S.B.’s “grinding” contact at the convenience store and the bank, she meant that she did not say anything to him about the conduct, and just “ left it alone ”.

(b) The Forensic Evidence

[25] The evidence from the CFS generally indicates, among other things, that a D.N.A. sample located on E.D.’s leggings was sufficient to generate a “major profile” at 15 STR loci. Chemical constituents were detected on the leggings that were “ potentially consistent ” with the presence of semen, but the results were viewed as equivocal in that regard (see: Exhibit No. 1, page 2). Ultimately, the C.F.S. concluded that a male D.N.A. profile was associated with a sample extracted from the leggings. It was more likely than not that the sample was derived from the donor’s bodily fluid (which may or may not have been semen) rather than from casual conduct. The sample was likely deposited after the leggings were last washed (see: Exhibit No. 3).

[26] Eventually, blood was drawn from S.B. and a D.N.A. profile was generated therefrom. A comparison of that profile to the D.N.A. profile generated from the sample taken from E.D.’s leggings indicates that S.B. cannot be excluded as the donor of the recovered D.N.A. sample and a random match probability of one in 260 trillion existed (i.e. an estimation of the probability that a randomly selected individual unrelated to the person in question, would coincidentally share the observed D.N.A. profile).

[27] No further evidence was adduced at trial. I will now review the parties’ submissions to the trial judge.

The Parties’ Submissions at Trial

[28] Both the Crown and the accused identified the complainant’s credibility and the reliability of her evidence as key issues at trial.

[29] The Crown confirmed that it only relied on the evidence of the conduct that occurred at the parking garage (as distinct from the convenience store and the bank) to establish guilt. In particular, E.D.’s evidence that the accused rubbed his penis on the posterior aspect of her leggings.

[30] Crown counsel referred the court to the elements of and legal principles applicable to the actus reus and mens rea of sexual assault, as articulated in R. v. Ewanchuk, [1991] 1 S.C.R. 330. She submitted that the trial judge could be satisfied that that specific touching that formed the subject matter of the charge occurred, in fact, not only as a result of the complainant’s evidence, but the corroboration offered by the forensic evidence. Specifically, chemical constituents that could be consistent with semen were found on the complainant’s leggings, which the Crown posited was consistent with E.D.’s evidence that S.B. rubbed his penis on them.

[31] The evidence established that the accused wanted to engage in sexual contact with E.D. She did not. She told the accused that she did not. Nonetheless, S.B. persisted in his efforts, in the hopes that E.D. would eventually consent. She did not. In that regard, the Crown referred the court to s. 273.1(d) of the Code, which provides that no consent is obtained for the purpose of s. 271 of the Code where the complainant expresses by words or conduct a lack of agreement to engage in that activity.

[32] The Crown accurately submitted to the trial judge that E.D. testified that: she did not consent to S.B. rubbing his penis on her leggings; she said, “No”; and subjectively, she did not want him to touch her in that manner. Crown counsel also reviewed the complainant’s evidence concerning the totality of her efforts, while at the parking garage, to communicate to the accused that she did not consent, specifically: when he initially grinded against her she thinks she said, “ Stop ”, but she knows she said, “ No ”; when he rubbed her vagina with his hand she said, “ No ”; when he exposed his penis, and asked her to touch it and subsequently grabbed her hand – she said, “ No ”.

[33] The Crown then submitted there was no air of reality to any suggestion that S.B. may have held an honest but mistaken belief that E.D. consented to his conduct at the parking garage. In the Crown’s submission, the evidence clearly established that E.D. did not consent and her lack of consent was expressed by both her words and her conduct.

[34] The Crown contended that E.D. was credible and her evidence was reliable. If she was uncertain on a point, she testified that “ she did not know ”. The Crown pointed out that E.D. was physically shaking throughout the entirety of her evidence. In the Crown’s submission, despite appearing “very nervous” while testifying, E.D. was an honest witness.

[35] The Crown contended that if the court accepted E.D. as credible and her evidence as reliable, then it could find, beyond a reasonable doubt, that in the absence of E.D.’s consent, S.B. rubbed his penis on her in a sexual manner. She did not consent to that contact and she clearly expressed her lack of consent to S.B.

[36] The accused’s counsel framed the principal issues that the trial judge was required to determine as: E.D.’s credibility; and whether the totality of the complainant’s conduct as disclosed by the evidence was consistent with her claim of “non-consent”. The evaluation of E.D.’s evidence that she did not consent remained a matter of credibility to be weighed in all the circumstances, including any ambiguous conduct.

[37] In the context of the foregoing, counsel for the accused submitted that the circumstances at issue began with E.D. attempting to purchase marihuana from her former boyfriend with whom reconciliation was foreclosed, from E.D.’s perspective, because he was preoccupied with sex. They met at her place of volunteer employment and engaged in several unsuccessful efforts to obtain funds to complete the anticipated drug purchase. In so doing, he grinded his midsection against her buttocks on three distinct occasions. She never said “ No ”. Instead, she laughed off the contact. Despite being well overdue to return to work, E.D. then agreed to attend a parking garage in order to in order to “ hang out ” with S.B. The defence submitted that in the totality of the circumstances, E.D.’s evidence that “hanging out” meant “chatting and catching up” did not carry a ring of truth. Indeed, E.D. ultimately conceded in cross-examination, that she and S.B. could have chatted and fully caught up in the 10 to 15 minutes it would have taken them to walk from the bank back to the hospital and that there was no need to go to a parking garage in order to do so.

[38] Ultimately, the defence submitted that the conduct to which E.D. testified was puzzling. She was late for work and in the presence of someone whom she regarded as being preoccupied with sex. That person had also initiated sexual contact with her three times during their efforts to obtain money from various ATMs. Instead of returning to work, she and S.B. walked farther away from the hospital in order to attend a parking garage for the stated purpose of “catching up”. On her evidence they spent half an hour on the seventh floor of the parking garage, but she also testified that the alleged sexual assault occurred as soon as they arrived, it lasted a few minutes, and she left immediately after it was over.

[39] The defence also submitted that the court had to be satisfied that if the complainant said, “No”, S.B. heard her say, “No”.

[40] Ultimately, the defence posited that when all of the evidence and circumstances disclosed therein were considered in their totality, the court ought to be left with a reasonable doubt with respect to S.B.’s guilt.

The Trial Judge’s Reasons

[41] Immediately following counsel’s submissions, the trial judge delivered brief oral reasons that occupy a total of five pages of the transcript of the proceeding. He began by summarizing the narrative offered by E.D. in her evidence, including that she told the accused “ no ” on at least three separate occasions while she and S.B. were on the seventh floor of the parking garage. In so doing, the trial judge expressly recounted E.D.’s evidence that:

1. S.B. wanted to kiss her, she did not want to kiss him and she said, “ No ”;
2. S.B. touched both her breasts over her coat. In response, she thought she said “ Stop it ”. She also said, “ No ”;
3. S.B. touched her vagina over her clothes and she said, “ No ”;
4. S.B. took out his penis and asked her to touch it and she said, “ No ”; and
5. S.B. pulled her by the arm. She pulled her arm back. S.B. then rubbed his penis against her “rear end”.

[42] The trial judge correctly described E.D.’s testimony that the alleged sexual assault at the parking garage lasted a few minutes and she eventually pushed herself away. She further testified that she and S.B. then went to the elevator, where S.B. said, “ Sorry. I missed you .” The trial judge expressly observed that E.D. testified that she and S.B. were on the seventh floor of the parking garage for approximately 30 minutes.

[43] Consistent with the Crown’s submission that the asserted sexual assault was founded in S.B.’s alleged conduct at the parking garage, the trial judge observed, at page 63 of the transcript of the proceeding, “ It’s a question of the half hour spent in the parking garage. ” He observed that the total time that the complainant spent away from the hospital was more than the 15 minutes she was allocated [at work], and included a half hour in the parking garage in addition to the walk from the hospital to Riverside Drive [where the bank was located], and the walk back.

[44] The dispositive portion of the trial judge’s reasons is set out in the transcript of the proceeding at pages 63-64, as follows:

With respect to the evidence as to what took place on the seventh floor, I have some trouble with the fact that she says she was up there for half an hour, and yet the incident with the accused having his penis out of his pants, as my notes indicate, lasted a few minutes. She had no problem getting away from the accused. She just pushed herself away and they both went to the elevator, and the accused said, “I’m sorry. I missed you.”

If in fact what transpired on the seventh floor took place and it was made clear to the accused – and her evidence, as I recall, was she can’t be sure whether the accused heard her saying no. She said she said no, but she can’t be certain the accused heard her. The actions would constitute all that’s required for a sexual assault. The question is whether there is the absence of consent.

As set out in Ewanchuk , the actus reus of the assault is an unwanted sexual touching. The mens rea is the intention to touch, knowing of or being reckless or wilfully blind to the lack of consent, either by words or actions from the person being touched.

I cannot be satisfied on the evidence before me or, to re-phrase it, I have reasonable doubt on the evidence. The amount of time spent in the garage, the fact that there’s no problem with her leaving – they left together. She wasn’t sure whether the accused heard her, but she says she said no. But she’s not sure if the accused heard her. I can’t help but be suspicious, but I can’t be satisfied beyond a reasonable doubt on the evidence. The case is marked dismissed.

The Asserted Grounds for Appeal

[45] In its factum, the Crown asserts the following grounds for appeal:

1. The trial judge erred in fact by finding that the complainant “ wasn’t sure if the accused heard her say, ‘No’. ”;
2. The trial judge erred in law or mixed fact and law in determining that the Crown had failed to establish the accused’s knowledge of the absence of consent.

[46] During the course of submissions on the appeal, Crown counsel also raised an issue with respect to the adequacy of the trial judge’s reasons.

[47] For reasons set out later below, I am of the view that when the trial judge’s reasons are read as a whole and in the context of the evidence and submissions at trial, they are functionally adequate. Further, as I will explain below, I do not give effect to either asserted ground of appeal and, as a result, I conclude that the appeal must be dismissed. Prior to explaining my conclusions in that regard, I will briefly review the function of this court on appeal, together with the applicable standards of review engaged by the grounds for appeal asserted by the Crown.

This Court’s Function On Appeal

[48] The function of this court on appeal is aptly summarized by Durno J. in R. v. Salerno, [2000] O.J. No. 3511, at para. 7 :

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own finding of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made, I cannot interfere.

The Standard of Review

[49] The Crown’s stated grounds for appeal are embedded with assertions that the trial judge erred in fact, mixed fact and law, and law.

[50] The standard of review for factual determinations made by a trial judge is one of “palpable and overriding error”: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 25. Where the challenged findings involve mixed fact and law or drawing factual conclusions and inferences, they should not be overturned absent a palpable and overriding error: see Children’s Aid Society of Toronto v. D.J. et al., 2013 ONSC 2776, at para. 27.

[51] A palpable error is one that is obvious, plain to see, or clear. Examples of such an error include: findings made in the complete absence of evidence; findings made in conflict with accepted evidence; findings based on a misapprehension of the evidence; and findings of fact drawn from primary evidence that are the result of speculation rather than inference: see Housen, at paras. 5, 6 and 23; and Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at para. 296.

[52] An error is overriding when it carries with it sufficient significance so as to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically render the error an “ overriding ” one. To be “ overriding ”, the error must go to the root of the challenged finding of fact, such that the fact cannot safely stand in the face of that error: see Schwartz v. Canada, [1996] 1 S.C.R. 254 at p. 281; Waxman at para. 297.

[53] The standard of review in the context of an asserted error of law is correctness. Questions of fact or mixed fact and law are reviewed on a standard of “palpable and overriding error,” unless they involve an extricable question of law. The identification of the legal principles applicable to the determination of an issue is an extricable question of law. However, the application of the law to the facts as found is a question of mixed fact and law: see Housen at paras. 8, 27 and 31.

[54] Within the context of the foregoing, I now turn to the determination of the Crown’s asserted grounds of appeal.

Disposition

1. Did the trial judge err in fact by finding that the complainant was not sure if the accused heard her say no?

(a) Nature of this aspect of the appeal

[55] The appellant submits that the trial judge made a palpable and overriding error of fact, finding that the complainant said, “ No ”, in respect of the asserted conduct relied upon by the Crown to establish guilt, but then finding that she was not certain if the accused heard her say, “No”.

[56] The Crown asserts that the available evidence at trial clearly (and unequivocally) established that E.D. believed that the accused heard her say “No” and that eventually, he engaged in conduct that was consistent with her belief in that regard. In furtherance of this aspect of its appeal, the Crown posits that in his reasons, the trial judge expressly found that: the accused engaged in the specific conduct at the parking garage that the Crown relied on to establish guilt; the complainant did not consent to that conduct; and the conduct of the accused, as found, was all that was required to make out the offence of sexual assault. Despite those findings, the trial judge then acquitted the accused on the basis of an overriding and palpable factual error, by finding that E.D. was unsure if the accused heard her say “No”.

[57] In my view, and for reasons I will set out below, this aspect of the Crown’s appeal is founded on a misapprehension of the nature of the factual findings that were made by the trial judge in the course of his reasons, together with the primary issue that his reasons address. As I will explain below, contrary to the Crown’s position, when considering the trial judge’s reasons as a whole, in the context of the evidence and the submissions made by counsel at trial, the case turned on E.D.’s credibility and the reliability of her evidence, as a whole, rather than the narrow issue of the accused’s knowledge of the lack of consent to which she deposed.

[58] A careful review of the trial judge’s reasons reveals that the trial judge never expressly found as a fact that the accused’s asserted conduct that the Crown relied upon to establish guilt, actually occurred nor did he expressly find a lack of consent. During the course of submissions on this appeal, the Crown suggested that to the extent the trial judge, through his reasons, failed to make those findings on the evidence before him, the reasons were inadequate because he failed to explain why he rejected the complainant’s evidence in that regard. I disagree.

[59] I do not find that the trial judge engaged in the factual error that the Crown asserts. Further, I find that when read in the context of the evidence at trial and counsel’s submissions, the trial judge’s reasons were adequate. Below, I will explain my conclusions in that regard by first setting out the aspects of the evidence the Crown relies on to establish that the trial judge committed the impugned factual error, together with the submissions it makes, on appeal, with respect to the factual findings made by the trial judge. I will then review the principles applicable to the determination of a challenge to the adequacy of a trial judge’s reasons in a criminal case, followed by a case-specific application of those principles, in the context of the actual findings that were made and not made by the trial judge. Finally, I will explain my reasons for concluding that the trial judge did not err as the Crown asserts, as well as my reasons for concluding that the trial judge’s apprehension of the complainant’s evidence concerning whether the accused “heard her say no” did not result in a palpable and overriding error in respect of his assessment of E.D.’s credibility or the reliability of her evidence.

(b) The evidence relied upon by the Crown in this aspect of its appeal

[60] The Crown relies on the following aspects of E.D.’s evidence to support its contention that the trial judge erred in fact, as asserted. In direct examination, E.D. testified:

MS. MIZEL: Q. Once you get to the seventh level, where, if anywhere, do you go? A. I headed straight for the ledge just to look over. In my vision I could see, like, the lower street and then there was, like, a bridge, like a walkway, I guess, going to a – like, another building. Q. And where is Mr. [B.] when you’re looking over the ledge? A. He’s behind me. And he walks up behind me and grabs my hips with his hands and, like, he pushes himself up against me... Q. Okay. A. ...and he says that he misses me, and he started to kiss my neck and started – like, said, “Come here,” and, like, tried to turn me around to kiss me. But I said, “No,” and I turned back around to look over the edge. Q. What are you saying no to? A. Kissing him. Q. Did you end up kissing him? A. No. Q. So, you say no. You are – do you still have your back to Mr. [B.]? A. Yes. Q. What happens next? And – and let me ask you this. Do you know – did he acknowledge or did he say anything to you after you said no? A. It was just kind of like – I don’t remember. Q. Okay. A. I don’t. Q. In your mind – you can’t say what was in his mind, but do you think that he heard you? A. Yes. Q. Okay. And what makes you say that? A. I said it loud enough. And after, like, continuously saying no, he just started saying like, “Come on,” like, “Let’s do something. I miss you,” and, like, stuff... Q. Just give me one second. So, I just want to take it detail by detail. So, you – you say at first he – you – the first time you say no and your back’s still to him, what happens next? What does he do after you say no the first time? A. I think he went back to trying to kiss my neck. Q. And did you – did that happen? Did he kiss your neck? A. I think so. Q. Is that something that you wanted him to do? A. No. [Emphasis Added]

[61] In cross-examination, E.D. gave the following evidence on the issue of whether S.B. heard her say “No”:

MR. BRADIE: Q. Is there any doubt in your own mind at this point that you’ve said no? A. No, there’s no doubt. Q. And you’re not – and you don’t – once again, my friend asked you, quite properly, do you think he was in a position to hear you and heard you, and you said yes, right? A. Yes. Q. But he didn’t do anything to indicate that he had heard you? A. No, I don’t think so. Q. Pardon? A. I don’t... Q. No. A. ...think so. Q. He – he – he was continuing the same type of behaviour that had begun in the – in the ATM in the video – in the variety store? A. Yes. Q. And it escalated up on the – in the parking garage, right? A. Yes. Q. You say at the parking garage you said no. And there’s nothing in his actions, either in anything that he said or anything that he did, to indicate that he heard you? A. Not at that moment, but after, yes. Q. After what? A. After the – like, after the kissing of the neck and me turning away, he was saying that he misses me and he just wants to put it in and he just wants me to try – like, he just wants to try it and he wants to – and he wants to do all these things, and I just said – kept saying no, and he kept saying, “Please?” And it just kept going. Q. And then it stopped? A. After I got – pushed him away. Q. Well, you – you didn’t have to wrestle yourself away from him? A. No. Q. You turned away from leaning over the wall and walked to the – to the elevator? A. Yes.

[62] The Crown posits that in the context of the foregoing aspects of E.D.’s evidence, the trial judge made the following findings of fact in his reasons, set out at pages 61 – 62 of the transcript of the proceeding:

They went up to the seventh floor of a parking garage. While up there, she was looking over the ledge when the accused again approached her from behind and kissed her neck. He wanted her to kiss him, but she wouldn’t. She says she told him no. He said, “Let’s do something. I miss you.” Her evidence was then that he touched both her breasts over her coat. She thought she said, “Stop it,” but she did say no. He then touched her vagina over her clothes, and again she said no. He took out his penis and asked her to touch it, and she said no. He pulled her by the arm, but she pulled her arm back, so instead he rubbed his penis against her rear end. She doesn’t remember if it was erect. This lasted a few minutes. She pushed herself away and they both went to the elevator. Her evidence was that the accused said, “Sorry. I missed you.” Her evidence was that they were on the seventh floor for approximately 30 minutes. They walked back to a Mac’s Milk, and then she went to the hospital to carry on with her volunteer work.

[63] However, as I will address later below, in my view, that portion of the trial judge’s reasons consists of his summary of E.D.’s evidence, as distinct from factual findings.

(c) The nature of the asserted error

[64] In the context of what it identifies as the trial judge’s findings of fact (set out above), the Crown asserts that the trial judge erred by making a further factual finding that the complainant was “not sure” if the accused heard her say, “No”. The Crown says there is no reasonable support for such a finding in the evidence. The trial judge’s factual error significantly impacted the result of the trial because elsewhere in his reasons the trial judge concludes that the evidence established the actus reus of sexual assault beyond a reasonable doubt and, that the only remaining issue was whether the accused had knowledge, or was aware of, E.D.’s lack of consent. Consequently, the acquittal was a direct result of the trial judge’s unsupported finding that E.D. could not be sure that the accused heard her say, “No”. Finally, if the trial judge did not make the factual findings that the Crown asserts he did, the Crown submits his reasons are functionally inadequate because he did not explain why he was unable to accept E.D.’s evidence beyond a reasonable doubt.

[65] As I stated earlier, in my view this ground of the appeal is premised on a misunderstanding of the trial judge’s reasons both in terms of the factual findings that he made and the primary issues that his reasons address and upon which the case was decided. The reasons disclose that trial judge did not make express factual findings about the happenings at the parking garage that were consistent with E.D.’s evidence. He did not find that the actus reus of sexual assault was established beyond a reasonable doubt. He did not find , as a fact, that E.D. was unsure if S.B. heard her say, “No” and the acquittal did not turn on such a finding. Rather, S.B. was acquitted because the trial judge did not accept E.D.’s evidence about what transpired at the parking garage, including the absence of consent, beyond a reasonable doubt. Although her evidence caused him to suspect that a sexual assault occurred, it did not render him certain in that regard. He was left with a reasonable doubt (see the last paragraph on page 63 of the transcript of the proceeding). I will explain. In so doing, I will, by necessity, address the issue of the adequacy of the trial judge’s reasons, which is where I shall begin.

(d) The content and adequacy of the trial judge’s reasons

[66] The adequacy of a trial judge’s reasons in a criminal case is evaluated in accordance with a functional and context-specific approach. Functionally, the reasons must be sufficient to: explain why the accused was found guilty or acquitted; provide public accountability; and permit effective appellate review: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15.

[67] In this instance, the trial judge’s reasons standing alone are brief and not overly precise, particularly, when excerpts from the reasons are read in isolation. On review, however, this court must consider and evaluate the trial judge’s reasons as a whole, in the context of the evidence and the submissions at trial, and with an appreciation of the purpose for which the reasons were delivered: see R.E.M., at paras. 35 and 51. When the reasons are considered in that context, the basis for the trial judge’s verdict must be discernable: see R.E.M., at para. 55.

[68] Although, it is crucial that the reasons for verdict in a criminal case demonstrate “ why ” a trial judge arrived at the result that he or she did (by demonstrating a logical connection between the verdict and the basis for the verdict), a trial judge is not required to expound upon “ how ” he or she arrived at his or her conclusion in a “ watch me think ” fashion. In other words, a detailed description of the judge’s process in arriving at the verdict is unnecessary: see R.E.M., at para. 17. Further, in explaining the basis for a verdict and its logical link to the verdict itself, a trial judge is not required to: set out every finding or conclusion in arriving at the verdict; expound upon evidence which is uncontroversial; detail his/her findings on each piece of evidence or controverted fact; or recite well-settled legal principles, where the case turns on the application of such principles to the facts found after a consideration of conflicting evidence: see R.E.M., at paras. 18 – 20.

[69] Brevity alone does not render a trial judge’s reasons inadequate. The degree of detail required in a trial judge’s reasons is a function of case-specific circumstances. Even brief reasons will be adequate, provided that when read in the context of the evidence and submissions at trial, they demonstrated that the trial judge seized and disposed of the substance of the proceeding. Less detailed reasons may be adequate when the basis of the decision is apparent from the record, even without being articulated in the trial judge’s reasons. Conversely, more detailed reasons may be required when the trial judge is, for example, required to address principles of unsettled law or resolve confusing or contradictory evidence on a key issue: see R.E.M., at paras. 43 – 44; and Sheppard, at para. 55.

[70] In my view, in the particular circumstances of this case, the trial judge’s reasons, read as a whole and in the context of the evidence and the submissions of counsel at trial, are functionally adequate. The reasons demonstrate that in arriving at his verdict, he seized the substance of the issues before him, which he then determined. In order to explain my conclusion in that regard, it is necessary to review the factual findings that were made and not made by the trial judge, as well as, the basis for the acquittal. In so doing, I arrive at a view that differs from the one urged by the Crown.

[71] Fundamental to this aspect of the appeal, the trial judge’s reasons, when read as a whole, do not support the conclusion that he made the factual findings that are attributed to him by the Crown. Recall that the Crown posits that the trial judge found, as a fact, that the complainant expressed a lack of consent to the accused. More broadly, the Crown asserts that the trial judge’s recitation of the complainant’s evidence concerning what transpired on the seventh floor of the parking garage, as set out at pages 61 - 62 of the transcript of the proceeding (and reproduced earlier in these reasons), amounts to express findings of fact. It does not. Instead, his reasons, when read as a whole, disclose that the trial judge was engaged in a summary review of the evidence that E.D. gave in her direct examination (including what occurred at the parking garage). The structure of the balance of his reasons supports that conclusion. I will explain.

[72] The impugned portion of the reasons that the Crown characterizes as factual findings is directly followed by the trial judge’s summary of the evidence that E.D. gave in cross-examination, and his observation that the accused did not testify. It would make little sense for the court to summarize E.D.’s cross-examination evidence immediately and only after arriving at factual findings on the issues to which that evidence relates.

[73] Further in that regard, after summarizing the narrative evidence before him, and beginning at the last paragraph on page 62 of the transcript of the proceeding, the trial judge shifts to an evaluation of that evidence, in accordance with the legal principles applicable to the offence of sexual assault, as articulated in Ewanchuk (to which both counsel had referred in the submissions that were made immediately before the trial judge delivered his reasons). In so doing, the trial judge quickly concluded that the accused’s conduct at the various ATM machines did not constitute a sexual assault (and the Crown did not submit otherwise). He then made a telling statement in the last sentence of the first paragraph of page 63 of the transcript of the proceeding, specifically, “ It’s a question of the half-hour spent in the parking garage. ” In my view, his comment in that regard, when considered in the context of the reasons as a whole, is not consistent with the Crown’s position that the trial judge had already made definitive findings of fact about what occurred at the parking garage earlier in his reasons.

[74] My view in that regard is strengthened by the second full paragraph of the trial judge’s reasons located at page 63 of the transcript of the proceeding, in which he expresses “ some trouble ” with aspects of the complainant’s narrative evidence about what transpired at the parking garage. When considered in the context of the reasons as a whole, that statement militates against a conclusion that the trial judge had already accepted the complainant’s evidence in that regard and made findings of fact accordingly, as the Crown otherwise submits.

[75] Finally, the trial judge begins the last paragraph of page 63 of the transcript of the proceeding with the phrase, “ If in fact what transpired on the seventh floor took place.... ” In my view, the expressed equivocation, considered in the context of the reasons as a whole, demonstrates that, contrary to the Crown’s submission, the trial judge did not make definitive findings of fact consistent with the complainant’s evidence about the events said to have occurred at the parking garage, when he summarized her evidence at pages 61 and 62 of the transcript of the proceeding, or at all. The trial judge’s summary of the evidence before him did not equate to factual findings consistent therewith.

[76] In addition to conflating the trial judge’s summary recitation of the complainant’s evidence with definitive findings of fact, this aspect of the Crown’s appeal is founded on the premise that the trial judge expressly found that the actus reus of sexual assault was established by the evidence, beyond a reasonable doubt and therefore, the only issue to be determined was whether the accused was aware of the complainant’s absence of consent (see para. 28 of the Crown’s factum). The trial judge’s reasons, read as a whole, do not support that contention.

[77] Instead, in the third-last paragraph of his reasons (set out at pages 63 and 64 of the transcript of the proceeding), the trial judge effectively states that if the events at the parking garage occurred, in fact, as the complainant had testified, the accused’s conduct would constitute sexual assault. However, it remains that his reasons do not indicate that he expressly accepted E.D.’s evidence with respect to the conduct and events that she testified occurred at the parking garage, nor do they indicate that he expressly found that the Crown had established the actus reus of sexual assault, beyond a reasonable doubt.

[78] In addition, at the end of the third-last paragraph of his reasons (set out at pages 63 – 64 of the transcript of the proceeding) the trial judge identifies a live issue with respect to a requisite element of the offence, namely, the absence of the complainant’s consent (as distinct from the accused’s knowledge of the absence of the complainant’s consent). In the paragraph that immediately follows, he demonstrates with reference to Ewanchuk that he was aware that lack of consent falls within the elements of the actus reus of the offence. In doing so, he seized the substance of the primary issues of the case as they were framed by counsel’s submissions at trial, namely: the credibility of the complainant; the general reliability of her evidence; and, in particular, the veracity and/or accuracy of her evidence concerning whether whatever conduct that occurred in the parking garage was non-consensual.

[79] Recall that both the Crown and defence made pointed submissions with respect to the complainant’s credibility. The Crown suggested several reasons why the court should accept all of the complainant’s evidence as credible, which included the complainant’s nervous testimonial demeanour and the fact that she acknowledged that she could not recall certain matters that were the subject of inquiry during the course of her evidence. The Crown further submitted that if the court found E.D. credible, it could then be satisfied, on her evidence, that the accused was guilty. Conversely, counsel for the accused framed a contextual narrative for the trial judge, sourced to the available evidence, which he submitted was in its totality, inconsistent with a lack of consent on the part of E.D. In the defence’s submissions, there was a problematic discord between: E.D.’s evidence that the alleged sexual assault began almost immediately on arrival at the seventh floor of the garage and lasted a few minutes, after which she immediately left the seventh floor; and her evidence that she was on the seventh floor with the accused for 30 minutes.

[80] Immediately following submissions, the trial judge gave reasons in which he expressed concern with respect to aspects of the complainant’s evidence, including her testimony that she and S.B. were on the seventh floor of the parking garage for 30 minutes as contrasted to the “few minutes” that the accused’s criminality is said to have occurred at that location. In the last paragraph of his reasons, the trial judge expresses his inability to be satisfied, on the evidence (which predominately consisted of E.D.’s evidence), that guilt had been established. He stated that he had a reasonable doubt and he identified specific aspects of the evidence that left him with such a doubt. Although his reasons in that regard were brief and could have been articulated in a more robust and precise manner, when they are considered in the context of the relatively slight evidentiary record and the narrow issues framed by the parties’ trial submissions they adequately demonstrate that he seized and disposed of the substance of the matter before him. In arriving at that conclusion, I have had regard to the following context.

[81] The case was straight forward. The onus rested on the Crown to prove the essential elements of the offence of sexual assault beyond a reasonable doubt. To do so, the Crown offered evidence from E.D. and some forensic evidence which strongly supported the inference that the D.N.A. sample on the complainant’s leggings came from the accused. The forensic evidence was more equivocal as to whether the sample was the result of a deposit of seminal fluid and, if so, when that deposit was specifically made.

[82] The Crown correctly submits that the complainant testified several times that she said, “No”, while on the seventh floor of the parking garage. There were also other aspects of her evidence that were consistent with an expression of a lack of consent, such as her evidence that: she told the accused that she did not want to touch his penis; she pulled her hand away from the accused when he tried to guide it to his penis; and she turned away from the accused when he tried to kiss her. The Crown accurately asserts that the trial judge’s reasons demonstrate that he was mindful of the foregoing aspects of E.D.’s evidence, in arriving at his verdict.

[83] However, the fact that E.D. gave the foregoing evidence and/or that it was not contradicted through evidence called by the accused, did not automatically require the trial judge to accept that evidence and find the accused guilty. As with any other witness, the trial judge was entitled to accept all, none, or some of E.D.’s evidence.

[84] In determining which aspects of E.D.’s evidence to accept, if any, the trial judge was required to assess her credibility and the reliability of her evidence. In so doing, he was left with a reasonable doubt. That finding was available to him on the record, which discloses aspects of the complainant’s evidence that are reasonably capable of being viewed as internally inconsistent or contradictory, such as: the time that the accused and the complainant spent on the seventh floor of the parking garage; and the need to attend the parking garage for the purpose of chatting and catching up, particularly since E.D. also acknowledged that that such activities could have been accomplished during the time that she and the accused walked back to the hospital. The record also discloses instances where the complainant was vague in detail and other instances where she simply could not recall certain matters that were the subject of counsel’s questioning. In the context of the totality of the evidence, the trial judge was not compelled to simply accept E.D.’s evidence in direct examination and arrive at a finding of guilt.

[85] I am mindful that in the course of his reasons, the trial judge did not engage in a critical analysis of every aspect of the complainant’s evidence, nor did he expressly engage in a detailed and comprehensive explanation of every aspect of the evidence that prevented him from accepting E.D.’s evidence in relation to the essential elements of the offence, beyond a reasonable doubt. He was not required to do so. The degree of detail required in explaining findings of credibility varies with the dynamics of the trial. Where the factors supporting or detracting from credibility are clear from the record, a trial judge’s reasons may not be inadequate simply because he failed to recite those factors: see R.E.M., at para. 51. In arriving at his verdict, the trial judge is presumed to have known the law, including the principles applicable to the assessment of the credibility of witnesses and the reliability of testimonial evidence. He was not obligated to recite those principles in his reasons. Similarly, he was not required to perform a detailed forensic analysis of each aspect of the complainant’s evidence in arriving at his verdict. Credibility assessments are often difficult and delicate processes that may not always be capable of being articulated in a precise and complete manner: see R.E.M., at para. 49.

[86] In the result, although the trial judge was expressly mindful of E.D.’s evidence regarding the circumstances and events that occurred on the seventh floor of the parking garage, he also expressed concerns with respect to certain aspects of that evidence. Fundamentally, he never expressly accepted the complainant’s evidence with respect to what occurred at the parking garage and specifically, her lack of consent. His verdict and his reference to what is described in Ewanchuk as “ ambiguous conduct ”, implicitly demonstrate that he did not accept the Crown’s submissions that it had proven “lack of consent” beyond a reasonable doubt. On the totality of the evidence, the trial judge was left with a reasonable doubt as to guilt. His reasons, when read in the context of the record and the submissions of counsel at trial, offer an adequate explanation as to why he arrived at his determination that a reasonable doubt existed.

(e) The Asserted Ground for Appeal Considered in the Context of the Trial Judge’s Actual Findings

[87] I have detailed the basis of the verdict disclosed by the trial judge’s reasons above because it provides the necessary context in which to consider and evaluate the Crown’s assertion that the trial judge “erred of fact”. The Crown’s position on appeal is anchored by its contention that the trial judge found, as a fact, that the complainant was not sure if the accused heard her say, “ No ”, and that such a finding was not supported by the evidence. In my view, the trial judge did not make that factual finding.

[88] Contextually, the trial judge never expressly found, as a fact, that the complainant expressed a lack of consent nor did he expressly accept her evidence in that regard. He did not make definitive factual findings about what happened at the parking garage. Instead, his reasons were focused on why he could not make such findings and, more particularly, why he could not find the facts necessary to establish the essential elements of the offence beyond a reasonable doubt.

[89] In the absence of a finding that the complainant, in fact, said, “No”, or engaged in other conduct that expressed her lack of consent, it would have made little sense for the trial judge to have found, as a fact, that the complainant was unsure about whether the accused heard her say “No”, as the Crown submits. Instead, the portions of the trial judge’s reasons that refer to the complainant’s asserted uncertainty in that regard are consistent with the trial judge providing a summary of her evidence, as distinct from the expression of a factual finding made on the strength of her evidence. Since the trial judge did not make the factual finding that founds this aspect of the appeal, he cannot be said to have erred in so doing.

[90] The question remains whether the trial judge’s apprehension of the complainant’s evidence concerning whether the accused heard her say “No” was flawed and, if so, whether it resulted in a palpable and overriding error in respect of his assessment of E.D.’s credibility or the reliability of her evidence. In determining that issue, I remain mindful of the deference that is generally afforded to a trial judge’s assessment of a witness’ credibility. In that context and for the reasons that follow, I am not persuaded that the trial judge’s apprehension of that aspect of E.D.’s evidence, as expressed in his reasons, resulted in a palpable and overriding error in this instance.

[91] First, I do not find that the trial judge’s apprehension of E.D.’s evidence on the impugned issue, as expressed in his reasons, demonstrates a palpable error. In her evidence, E.D. allows that at a certain point in her narrative there was no indication that S.B. heard her say, “No. Specifically, in cross-examination, the complainant testifies that when the accused originally kissed her on the neck in the parking garage, she said, “No”. Although she believed he was in a position to hear her, she agreed that he did not say or do anything to indicate that he had heard her. In my view, her evidence in that regard provides a reasonable basis for the trial judge to characterize an aspect of her evidence as consistent with her being uncertain if the accused heard her say, “No”.

[92] Second, to the extent I have erred in determining that the trial judge’s expressed apprehension of the subject evidence does not reveal a palpable error, I would nonetheless conclude that the error was not overriding. Here, the challenged aspect of the reasons relates to the credibility of the complainant and the reliability of her evidence, the assessment of which was based on a number of considerations that were set out in the last paragraph of the trial judge’s reasons and the portion of his reasons set out in the last full paragraph of page 63 of the transcript of the proceeding (in which he identifies the “timing issue” associated with the attendance on the seventh floor of the parking garage as a source of trouble for him).

[93] In the context of the trial judge’s reasons read as a whole, together with the totality of the evidence and submissions before him, including the aspects of the complainant’s evidence that could be reasonably regarded as being inconsistent or contradictory, I would conclude that his asserted misapprehension of E.D.’s evidence with respect to her uncertainty as to whether S.B. heard her say, “No”, does not go to the root of the trial judge’s assessment of credibility or reliability such that the verdict cannot safely stand in the face of the error. The trial judge was clearly troubled by aspects of E.D.’s evidence apart from her testimony about whether S.B. heard her say “No” that could reasonably support his finding that he was left with a reasonable doubt as to the accused’s guilt. Those aspects have been previously set out in the course of these reasons. As a result, there is no basis for this court to intervene.

[94] For the foregoing reasons, I do not give effect to this ground of the appeal.

2. Did the trial judge err in law, or in mixed fact and law, in determining that the Crown had failed to establish the accused’s knowledge of the complainant’s absence of consent?

[95] In this aspect of its appeal, the Crown acknowledges that in his reasons, the trial judge questioned whether there was an absence of consent in relation to whatever conduct occurred between S.B. and E.D. on the seventh floor of the parking garage (see the last sentence of the third-last paragraph of the trial judge’s reasons at page 64 of the transcript of the proceeding). The Crown submits that despite the clear language employed by the trial judge, he was not actually questioning whether there was an absence of consent. Rather, he was really questioning whether the accused was aware of the absence of consent. In respect of the latter, the Crown says that based on the complainant’s evidence, the trial judge ought to have found that the accused was aware of the absence of consent and he erred in law or mixed fact and law in failing to do so. The Crown also asserts that to the extent that the trial judge did not find an absence of consent, he erred in law (see Crown’s factum at para. 32). For the reasons that follow, I do not agree.

[96] Both parties made submissions to the trial judge on the issue of consent (and the manner in which it was affected by the issue of E.D.’s credibility), which included references to the relevant portions of Ewanchuk and the Code. In Ewanchuk, the Court instructs that an “absence of consent” is determined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred (see para. 26), and further that the complainant’s credibility must still be assessed by the trier of fact, in light of all of the evidence (see para. 44).

[97] In this instance, the complainant testified to a subjective absence of consent. However, for reasons stated earlier, I have concluded that on the record available to him, it was open to the trial judge not to accept all (or any) of the complainant’s evidence. Clearly, he did not accept all of her evidence related to the essential elements of the offence as he was left with a reasonable doubt as to the accused’s guilt. I have previously identified those portions of the trial judge’s reasons in which he expresses concern and difficulty with aspects of the complainant’s evidence. Although the content of those portions of his reasons are not robust, they are adequate to explain the “why” of the verdict. The totality of the available evidence did not persuade the trial judge beyond a reasonable doubt that the accused was guilty of the offence with which he was charged.

[98] As a result of the foregoing, I do not give effect to the Crown’s suggestion that the trial judge erred in law, by failing to find an absence of consent in this instance. That does not end this aspect of the Crown’s appeal.

[99] The Crown further posits that in questioning whether there was an absence of consent, the trial judge was “ really asking whether or not the Crown has proven that the accused was aware of the absence of consent ” (see para. 33 of the Crown’s factum). The Crown contends that in his reasons, the trial judge found that the actus reus of the offence of sexual assault had been proven beyond a reasonable doubt. The Crown says that his finding in that regard is demonstrated by his statement, “ The actions would constitute all that’s required for a sexual assault. ” I do not share the Crown’s view.

[100] As I have previously explained, the trial judge did not expressly find that the actus reus of the offence had been proven beyond a reasonable doubt. Instead, he indicated, at pages 63 – 64 of the transcript of the proceeding, that “ If in fact what transpired on the seventh floor took place and it was made clear to the accused...[t]he actions would constitute all that’s required for a sexual assault. The question is whether there is the absence of consent .” [Emphasis added.] Importantly, the trial judge never went on to find that the sexual touching and lack of consent to which the complainant testified actually occurred, in fact , after he expressly questioned whether there was an absence of consent.

[101] Since the court never found that the actus reus of the offence was proven beyond a reasonable doubt, the Crown’s submission that “ the only remaining issue for the court to determine was the mens rea of the accused ”, is not accurate (see para. 35 of the Crown’s factum).

[102] Since the court did not find beyond a reasonable doubt that there was an absence of consent, in fact , I am unable to give effect to the Crown’s position that the trial judge erred in law or mixed fact and law, in determining that the Crown had failed to establish the accused’s knowledge of the absence of such consent. Without a finding of an absence of consent, a finding that the accused was aware of that absence could not be made.

[103] For those reasons, I do not give effect to this ground of the Crown’s appeal.

Conclusion

[104] For the reasons set out above, the Crown’s appeal is dismissed.

"original signed and released by Verbeem J."

Gregory J. Verbeem Justice

Released: April 29, 2019