COURT FILE NO.: CR-19-1603

DATE: 2021 05 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Reza Raeesi, for the Crown

– and –

ANDREW MYLES

Benjamin Goldman, for the Accused

HEARD: March 29, 30, 31, April 1, 8, 2021

REASONS FOR JUDGMENT

J.M. Woollcombe J.

A. Introduction

[1] The accused, Andrew Myles, is charged with one count of sexual assault on N.C., alleged to have occurred on October 28, 2017. On consent, his trial before me proceeded by Zoom, remotely, as contemplated by s. 650(2)(b) of the Criminal Code.

[2] There is no issue that the complainant and accused knew each other, that they went out to a club together on the evening of October 27, 2017 and that they returned to the accused’s home early on October 28, 2017. There is also no issue that they had sexual intercourse.

[3] The complainant testified that she has no memory of what happened between being in the club and the time she awoke early in the morning of October 28 to the accused having sexual intercourse with her. She says that she never consented to having sex with him. Her evidence was that she immediately told him to stop, that he continued for a brief period and that when she was able to get him off her, she immediately called 911 to report that she had been sexually assaulted.

[4] The accused testified that after leaving the club, he drove them to his home, where they went to sleep, clothed, on the couch in his living room. He says that he awoke later in the morning to the complainant rubbing against him, with her pants and underwear down. They then had sexual intercourse, to which he believed she consented because she was the instigator. He characterized her as a willing and engaged participant throughout.

[5] The issues to be determined are:

i) Did the complainant consent to the sexual activity?

ii) If the complainant did not consent to the sexual activity, did the accused know that she was not consenting or hold an honest but mistaken belief in communicated consent?

[6] For the reasons that follow, I am satisfied beyond a reasonable doubt that the accused is guilty of sexual assault.

B. Legal Principles

[7] Mr. Myles is presumed innocent of the charge he faces. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Myles is guilty of sexual assault. There is no onus on Mr. Myles to prove anything.

[8] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find Mr. Myles guilty only if I am sure that he committed sexual assault.

[9] Although he was not required to, Mr. Myles chose to testify. In assessing whether the Crown has proven his guilt beyond a reasonable doubt, the principles set out by the Supreme Court of Canada in R. v. W.(D), 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 must be applied. That analysis does not set up a credibility contest between the complainant and the accused. I am not simply to choose whose version of events I prefer, as doing so would amount to a reversal of the burden of proof. Rather, if I accept the accused’s evidence that he did not commit the offence alleged, I must acquit him. Even if I do not accept his evidence, if it leaves me with a reasonable doubt, I must acquit him. Finally, even if the evidence of the accused does not leave me with a reasonable doubt regarding his guilt, I may find him guilty only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

[10] To prove sexual assault, the Crown must prove beyond a reasonable doubt both the actus reus and that the accused had the requisite mens rea.

a) The actus reus of sexual assault

[11] The actus reus of sexual assault requires proof of three elements: touching, the objectively sexual nature of the touching and the absence of consent: R. v. G.F., 2021 SCC 20[^1] at para. 25. There is no issue in this case respecting the first two elements. The issue is whether the Crown has proven the absence of consent.

[12] The absence of consent, for determining if the actus reus has been proven, is subjective and determined by reference to the complainant’s state of mind about the sexual touching at the time that it occurred. The only source of direct evidence as to the complainant’s state of mind is her evidence. The question is whether the complainant, in her mind, wanted the sexual activity to take place. The focus at this stage is on the complainant’s state of mind. The accused’s perception as to the complainant’s state of mind is not relevant. As a result, if the complainant testifies that she did not consent, and that evidence is accepted as proven beyond a reasonable doubt, there was no consent and that element of the offence is proven: R. v. Ewanchuk, 1999 SCC 711 at paras. 25-31; R. v. J.A., 2011 SCC 28 at paras. 23,34; R. v. Barton, 2019 SCC 33 at paras. 88-89; R. v. G.F., at para. 29.

[13] The meaning of “consent” is set out in s. 273.1(1) of the Criminal Code as the “voluntary agreement of the complainant to engage in the sexual activity in question”. The Code provides that consent must be present at the time that the sexual activity takes place. It also sets out a non-exhaustive list of circumstances in which no consent is obtained:

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

[14] There is no defence of implied consent: R. v. Ewanchuk, at para. 31. This means that consent cannot be implied by a pre-existing relationship between the accused and the complainant. Neither can it be implied by the complainant’s “silence, passivity or ambiguous conduct”: R. v. Ewanchuk, at para. 51. There is no requirement that a complainant offer “some minimal word or gesture or objection” in order to be found not to have consented: R. v. M.L.M., 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3; R. v. J.A., at para. 37.

[15] As Campbell J. pointed out at para. 15 of R. v. Mirzadegan, (2018), ONSC 3449; affirmed 2019 ONCA 864, because the complainant’s consent is subjective, “the Crown need not establish that the complainant communicated his or her lack of consent to the accused in order to establish the actus reus of the offence of sexual assault”.

[16] Capacity to consent is a precondition to subjective consent. In other words, because a complainant must formulate a conscious agreement in her own mind to engage in the sexual activity, she must be capable of forming such an agreement: R. v. G.F. at paras. 43, 47. Consent requires that the complainant be conscious throughout the sexual activity: R. v. J.A., at paras. 33. It follows that an unconscious or sleeping person is incapable of consenting to sexual activity.

[17] The Criminal Code does not set out precisely what is required for a complainant to lack the capacity to consent. In its very recent decision in R. v. G.F., Karakatsanis J. set out four requirements for capacity, explaining that a complainant will only be capable of subjectively consenting if she is capable of understanding all four factors. These four factors are:

1. the physical act;

2. that that the act is sexual in nature;

3. the specific identity of the complainant’s partner or partners; and

4. that they have the choice to refuse to participate in the sexual activity.

[18] See also R. v. Al-Rawi, 2018 NCCA 10 at paras. 60-61; 66-67.

[19] If the Crown proves the absence of any one of these factors, the complainant is incapable of providing subjective consent and the absence of consent is established at the actus reas stage. In such circumstances, there is no need to consider if the consent was effective.

[20] In considering the complainant’s capacity to consent and whether she did, in fact, subjectively consent, the trial judge has some latitude respecting how to approach the issues. Indeed, in R. v. G.F., the Supreme Court of Canada overturned the rigid approach that the Court of Appeal had adopted for assessing whether a complainant subjectively consented to sexual activity. It is now clear that a trial judge has some discretion respecting how to determine the issue of whether the complainant consented, and whether that consent is effective in law, and is not obliged to follow any one “order of operations”. To summarize, a finding of consent requires both that the complainant subjectively consented and that she was capable of doing so: R. v. G.F. , at paras. 51-53; 64.

b) The mens rea of sexual assault

[21] Sexual assault is a general intent offence. To prove the mens rea, the Crown must prove both that the accused intentionally touched the complainant and that he knew that the complainant was not consenting, or was reckless of wilfully blind to the absence of consent on her part: R. v. G.F. , at para. 25; R. v. Ewanchuk, at para. 42; R. v. J.A. at para. 24; R. v. Barton, at para. 87. An accused may not rely on consent being implied by their prior relationship as “contemporaneous, affirmatively communicated consent must be given for each and every sexual act”: R. v. Goldfinch, 2019 SCC 38 at para. 44.

[22] The defence may challenge the Crown’s evidence of mens rea by asserting that he had an honest but mistaken belief in communicated consent. The relevant question for this defence is whether the accused honestly believed that the complainant effectively said “yes” through her words and/or actions: R. v. Barton, at para. 90. As was explained by the Supreme Court of Canada in Barton, at para. 91, the principal considerations are, first, the complainant’s actual communicative behaviours and, second, the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent.

[23] When an accused seeks to advance of honest but mistaken believe in communicated consent, the first question is whether there is an air of reality to the defence. If there is, then the onus shifts to the Crown to negative the defence.

[24] The Criminal Code precludes an accused from relying on the defence of honest but mistaken belief in communicated consent in certain circumstances:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from

(i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[25] Paragraph 273.2(b) of the Code precludes an accused from relying on this defence unless he took reasonable steps in the circumstances to ascertain that the complainant was consenting. This precondition to the defence has both an objective and a subjective element, requiring the accused to take steps that are objectively reasonable. The reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time: R. v. Barton, at para. 104.

[26] By way over overall approach, the Supreme Court’s comments at para. 109 of R. v. Barton are helpful:

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

c) Assessing credibility

[27] As I have indicated, this case turns on an assessment of the credibility and reliability of the complainant and the accused. Credibility and reliability are different concepts. Credibility relates to sincerity and honesty and whether witnesses testified as to what they believe. Reliability relates to whether what the witnesses said was accurate, often decided on the basis of a witness’s ability to observe, recall and recount events as they occurred: R. v. G.F., at para. 82.

[28] In assessing the evidence of the complainant in this matter, it is important to avoid any assumptions and stereotypes as to how alleged victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. Credibility findings are not to be made on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations.

[29] I recognize the need to be cautious about reliance on the complainant’s demeanour alone when she testified. Demeanour alone cannot support a conviction if there are significant inconsistencies and conflicting evidence on the record. While demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[30] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions: R. v. M.(A.), 2014 ONCA 769 at para. 12. As the Court of Appeal observed in R. v. G.(M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 at para. 23; leave to appeal to S.C.C. refused, [1994] S.C.C.A. 390:

23 Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[31] Inconsistencies in a witness’s evidence vary in their nature and importance. Some relate to material issues, others to peripheral issues. Where an inconsistency is about a material event about which an honest witness is unlikely to be mistaken, that inconsistency may be indicative of “a carelessness in the truth about which the trier of fact should be concerned”: R. v. M.(G.), at para 13.

[32] In this case, I must consider whether the credibility of both the complainant and Mr. Myles have been affected or undermined by them having given inconsistent statements and evidence about material issues. Their credibility can only be determined after considering the nature and extent of any such alleged inconsistencies.

C. The Relevant Evidence

[33] There are many facts about which the complainant and Mr. Myles generally agree. The real dispute between them is about what happened in the early hours of October 28, 2017 at the time of the sexual activity.

i) The background relationship

[34] N.C. was 29 at the time of the alleged sexual assault. She worked in health care and lived in Brampton. The accused, Mr. Myles, was 41 years old in 2017. He also lived in Brampton.

[35] The complainant and Mr. Myles met through his niece, Renee. N.C. and Renee had attended the same school in Jamaica. Around 2008, Renee came to Canada and stayed with Mr. Myles. She and N.C. met up and, through Renee, N.C. and the accused first met each other.

[36] While the two of them met in about 2008, they did not develop much of a relationship until at least 2012 or 2013. After the accused moved to Brampton in 2015, they saw even more of each other, spoke on the phone regularly, and went out together. By 2017, they saw each other fairly regularly, particularly because the complainant walked her dog and would stop by his house to visit.

[37] It is common ground that the complainant and Mr. Myles came to know some members of each other’s families. For instance, N.C. asked Mr. Myles to assist her by writing a letter of invitation for her mother to visit from Jamaica, something he agreed to do and about which they both testified.

[38] Both the complainant and accused also described a gathering at his home shortly before the incident in which she assisted him to prepare a Thanksgiving family dinner. While this was never put to the complainant, Mr. Myles said that the next day, he received a call from N.C. wanting to know what his family had thought of her. He said he found her inquiry strange.

[39] Both the complainant and Mr. Myles were asked about the nature of their relationship prior to the events of October 27.

[40] N.C. said that they were close friends. She said that there was nothing intimate between them. She said that she and Mr. Myles had a few conversations about being more than friends and that she was clear that it was not going to work. First, she said that he was her friend’s uncle and that she had respect for him in that sense. Second, she said he was not the type of guy she would talk to and that she was not attracted to him. Under cross-examination, N.C. said she had never given to him an impression that they could be intimate.

[41] Mr. Myles also testified that they were not in a romantic relationship. They would go out partying and dancing but did not have physical contact.

ii) Evening of October 27, 2017

[42] According to Mr. Myles, he received a text from N.C. at 1:00 p.m. on October 27 asking if he wanted to go out later. He said “no” as he had to take his son to basketball early the next morning. When she called him that evening, he agreed to go out.

[43] The complainant said that after finishing work at 5:00 p.m., she went home and had dinner. Later on in the evening, she and her friend Shawna-Kay Atkinson planned an impromptu get-together. N.C. called Mr. Myles and invited him to join them. She said that he was a possible ride for her and that he agreed to drive.

[44] Mr. Myles picked the complainant up at her home in Brampton shortly before midnight. They picked up her friend and went to the Club. N.C. said that the plan was for Mr. Myles to drive her home again after their evening out. She said that they lived less than a two-minute drive apart and that when they had gone out previously, he had dropped her at home after.

[45] The complainant had nothing to drink before Mr. Myles picked her up and had neither alcohol nor any other substances before their arrival at the Club.

[46] The three of them went to Central Nightclub, located around Jane Street and Lawrence Avenue. Mr. Myles thought they arrived a little after midnight. N.C said it had been around 1:00 a.m. She described the club as a restaurant with an after hours dance floor and DJ. It was a loud, fairly dark club with a party scene.

[47] At the club, N.C. said that she had three sets of drinks. When they first arrived, Mr. Myles bought himself a Heineken beer and bought the complainant a double shot of Crown Royal. They took their drinks and went to the dancefloor. Later, a male friend of Shawna-Kay’s bought N.C. a single Crown Royal. He also bought Mr. Myles a second Heineken. Mr. Myles thought this second round was a bit after 1:00 a.m. Mr. Myles testified that he bought the third round at about 1:30 a.m. N.C. had another double Crown Royal and he bought himself a Heineken.

[48] N.C. testified that normally, she does not feel an effect from the equivalent of five drinks. She said that often she drinks shots of Crown Royal and might have up to ten drinks, or five doubles. She said that this amount of alcohol would make her “buzzed”, but not black out unconscious, and that she would recall what was going on around her. She described ten shots as making her want to dance and then feel tired and want to go to bed. She agreed that ten shots could make her stumble, but said it did not really affect her memory in that she would forget only details, but not blocks of time.

[49] N.C. described the evening at the Club as fun and said that she had a great time dancing. Mr. Myles also testified that they were dancing and having a good time. He did not see the complainant do anything unusual or abnormal and said she did not show the effects of alcohol.

[50] The complainant testified that at some point that evening, after either her second or third round, she started to feel different from how she would normally feel from alcohol. She felt weak and had to sit down for a few minutes. She described herself as having found things blurry and said she was dizzy and nauseous with her stomach upset.

[51] The last thing N.C. recalls from the evening out was sitting down, alone, in the club. Mr. Myles and her friend Shawna-Kay were on the dancefloor. She recalled Mr. Myles giving her a bottle of water.

[52] N.C. said she has no memory of leaving the club, of how she got to Mr. Myles’ home, of what conversation they had, of what vehicle they went in or of how she got to his couch.

[53] Mr. Myles’ account of the end of the evening in the club differed from the complainant’s.

[54] He said that after he bought the third round, the complainant went to the washroom and he went outside to smoke. When he came back, she was on the dancefloor. He said that N.C. was pointing at a woman he knew and suggesting that he talk to her. N.C. went to the washroom again, about 20 minutes later. When she returned, he was talking with the woman whom she had pointed out. N.C. grabbed his hand, pulled him up some steps and laid her head on his shoulder. She told him that she was “ready”, which he took to mean that she wanted to leave. He said it was unusual for her put her head on his shoulder. They started to go outside. The complainant interlocked her arm in the accused’s, but he said that she did not need him for support.

[55] Mr. Myles said that when they left, N.C. was hungry so he bought her soup at the Corn Soup Man outside the club. They went to his car, where he says that she had a sip or two. The complainant told him that she did not feel good. He testified that he thought she could have been affected by alcohol, or by not having eaten. He stopped at a gas station to buy her a bottle of water. He denied that he got the water because she was drunk, and said it was because she was not feeling well and the soup wasn’t working. At the gas station, he said that N.C. stayed in the car. He got her the water and she told him that she had vomited a little and she drank some water. He said he did not see it or smell it and that N.C told him that she felt fine. His perception was that there was nothing unusual about the way she was behaving, that she was not slurring her words or stumbling and that she needed no support to stand or walk.

[56] Under cross-examination, Mr. Myles agreed that vomiting after drinking could be a sign of the complainant having been drunk but said, “then again, it could have been the soup”. He was clear that he did not smell the vomit and did not see vomit. He denied having been aware of there having been vomit in the car.

[57] They drove back to Brampton, a 20 to 30 minute drive. Mr. Myles testified that he asked the complainant what she was doing and if she was going home or coming to his house. While she had never stayed over at his place, apart from when his niece had visited years before, he said that she responded that she would come to his house, but he was not going to “get lucky”. He said he laughed it off. He understood from her that he should not expect to have sex with her. She told him that he needed to get her slippers because she did not want to wear her shoes with heels on his stairs.

[58] Under cross-examination, Mr. Myles agreed that this was the first time that the complainant had come to his home at this hour, but said that he was not trying to have sex with her. He agreed that it was he who had proposed that she come to his place, knowing that she had not been feeling well, and that he had to be up early the next morning for his son’s basketball.

iii) Events at the accused’s home

[59] Mr. Myles testified that at his home, he got the slippers the complainant had requested.

[60] They went inside at his home. N.C. went upstairs to use his washroom. He said that he asked her where she wanted to sleep and whether she wanted to be upstairs or downstairs. He said that she responded, “let’s sleep on the couch”. He was clear that it was she who preferred them to sleep on the couch, and said that there was no discussion about whether they would sleep together or apart. He testified that he went and got changed into his shorts and got a pillow and a blanket.

[61] Under cross-examination, Mr. Myles said that when he asked N.C. where she wanted to stay, she said that she did not want to go up all the stairs. He also said that she was able to go upstairs to the washroom quickly. By the time she came back down, he had already got the blanket and pillow and was on the couch. By this time, he was tired.

[62] Mr. Myles said that he had an “L-shaped” sectional couch. He said that he lay down behind the complainant. His back was to the back of the couch and she was in front of him. They had a comforter over them. He said that they both fell asleep by 3:00 or 3:30 a.m. without any further conversation. Asked whether the position they were in could be characterized as “spooning”, he agreed that it could be, but said that there was no motion and that they were just laying there sleeping and that there was a little gap between them.

iv) The sexual intercourse

[63] N.C. testified that the first thing she recalls after being in the club was waking up on the sofa in the living room of Mr. Myles’ home with him. She said she was lying down and that Mr. Myles was on top of her having sexual intercourse with her. She described herself as still weak and numb and said that things were still foggy. She had not wanted to have sex with Mr. Myles.

[64] N.C. explained that she would not have consented to having sex with Mr. Myles because she considered him like an uncle. She also said she was not attracted to him and that he was not her type.

[65] Asked about her reaction to what the accused was doing, N.C. said that she asked him what he was doing and he told her that she should relax. He continued for a little bit, not stopping immediately when she told him to stop. She pushed him off her.

[66] The complainant was cross-examined on her statement to the police and the suggestion was made that Mr. Myles got off her as soon as she asked him to do so. She said, consistent with her statement, in my view, that he did not get off immediately and that it was when she got the energy to do so that she was able to push him off her. She was clear that he did not get off her willingly and that she used her voice and physical force to get him off her.

[67] N.C. does not know if the accused wore a condom.

[68] Asked what she was wearing at the time of the sexual intercourse, N.C. said that she was in her top still, but that she was not wearing her pants or underwear. She recalled looking for them and not being able to find them. She said that she did not recall having taken her clothes off.

[69] Mr. Myles gave a very different account of the sexual intercourse.

[70] He said that at some point after 5:00 a.m. he felt N.C. rubbing against him. Asked whether he found it odd that N.C. all of a sudden wanted to have sex with him, he said not while he was sleeping. Asked if he was in a lower state of consciousness, he said “you wake up and see someone grinding on you. They are not telling you no and are not pushing you away, you continue”. He said that the complainant said nothing, but just started rubbing her naked buttocks against his genital area. He said that he was “still half asleep” and was “just going with the motions”. He said that he was still wearing his shorts and believed that N.C.’s pants were half down. He did not know how they got half down and said he did not take them down. He proceeded to move forward. Neither of them said anything. He said that he moved her underwear, she did not say anything, and he started having sexual intercourse on their side.

[71] While Mr. Myles agreed that the complainant had said nothing about wanting to have sex, given the fact that she had fallen asleep with her clothes on and that she was rubbing him with them off, he “assumed” that this was what she wanted. He said her action of rubbing against him, and the way she moved her body, made him believe that she was consenting.

[72] The accused said that they had sex on their sides for about 10 minutes. Nothing was said by the complainant until she rolled over onto her back. At that point she removed her pants and underwear. He said that she put her legs in the air. Asked whether either of them had said anything at this point, he said that neither of them had. He was on his knees and said that N.C. pulled him in from the back.

[73] Mr. Myles said that in this position, he “went back inside her again”. They had sexual intercourse for another 10 to 15 minutes. He described N.C as rubbing his back and saying “Andrew” multiple times. Her eyes were open. Under cross-examination, he described N.C. as having moaned his name quite a lot during their sexual activity. At no point did she push him away. Mr. Myles said that he ejaculated and some went into her. He also said that there was “juice all over the couch from her”.

[74] Under cross-examination, Mr. Myles said that it was his belief that the couch was wet because the complainant had orgasmed. He agreed that he had not said in chief that she had orgasmed and said that he had not been asked and had not thought it was important.

[75] According to Mr. Myles, after the sexual activity was over, N.C. turned to him and said, “Dude, we just had sex and you didn’t even go put on a condom. I think you raped me”. He also said that she said “I don’t believe I told you to have sex with me” or “I don’t remember consenting” and that she was going to call the police.

[76] Mr. Myles acknowledged that he did not wear a condom during the sexual activity and that he took no precautions respecting pregnancy or transmitting sexually transmitted diseases to the complainant. Asked if they discussed condom use, Mr. Myles said that the complainant woke him up and that there was no discussion. He believed that the failure to use a condom was the reason for which she called the police.

[77] It was suggested to Mr. Myles that he had told the police that the complainant said to him, “put it in”. He denied ever having said that to the police.

[78] It was also suggested to Mr. Myles that while he had testified at trial that he ejaculated and that some of it went in her, when he spoke to the police, he had told Officer King something different, in that he had said he was not sure if he had ejaculated in her. He said he did not believe so, He then said that at the end of sex, the complainant said “dude. You just came in me” and he would not have told the police this had it not happened. He agreed that he said this part about her having said “you just came in me” for the first time when he testified and explained that as he testified the words were coming back to him.

[79] Mr. Myles denied that the complainant ever asked him what he was doing, denied ever having told the complainant to relax and denied that she ever pushed him away. His position is that she was neither asleep nor unconscious, that her eyes were open and that she had moaned his name. There was nothing he observed in the complainant that morning that made him think that she was under the influence of alcohol.

v) 911 Calls

[80] The complainant called 911, describing herself as in shock at the time. She made the call from close to the door of the house, while still inside the house.

[81] There are two 911 calls that were played during the trial and which were entered into evidence as Exhibits 1 and 2.

[82] In the first 911 call, the complainant told the operator that “I think I was raped”. After some discussion with the 911 operator as to where she was, the complainant said she was at the house of her friend Andrew, but said that she did not know his last name. She testified that she had known his name, but that she was feeling emotional and scared. Under cross-examination, she said that had not been afraid of Mr. Myles at that moment, but that she had just been frightened. It was suggested to her that she had not meant to call the police because she did not know what had happened. She denied this, and said that she knew that calling 911 was going to lead to consequences and that she was scared about those repercussions, including having to attend at court and losing her former friends.

[83] In the second 911 call, the complainant said that she recalled leaving the party but not getting in the car and that, “I don't remember like telling him yes, like we should have sex, right?”

[84] The complainant agreed that Mr. Myles had been close to her when she made the 911 calls and that he had seemed calm and not tried to stop her from calling.

[85] The 911 audio recordings were not tendered by the Crown for the truth of their contents. Counsel agree that they are not admissible as prior consistent statements to bolster the complainant’s credibility. They were tendered, without opposition, as circumstantial evidence of the complainant’s emotional state immediately after the allegations: R. v. Byrnes, 2012 ONSC 2090 at paras. 31-32 R. v. Raveedran, 2016 ONSC 2009 at para. 19. They were also available for cross-examination of the complainant to the extent that they were inconsistent with her evidence.

vi) Police officers who responded to the 911 call

[86] The Crown called the evidence of two officers who responded to the 911 call.

[87] Constable Aden arrived at 5:39 a.m. and was the first officer on the scene. She described the complainant as crying, hysterical and intoxicated. The complainant’s speech was a little bit slurred and the officer could smell alcohol on her breath. She could not tell if the slurred speech resulted from alcohol or being upset. She testified that the complainant thought she had been raped but was not sure if she had been and did not know what had happened. The officer did not recall precisely what the complainant had said, and testified that her interaction with N.C. was very short.

[88] Shortly after Constable Aden’s arrival, Constables Yake and Esposito arrived. Constable Yake testified that he arrived on scene at 5:39 a.m. while Constable Aden was speaking with N.C. He observed that the complainant was crying and upset. He did not notice any signs of impairment and thought she sounded fine. He observed no unsteadiness on her feet.

[89] As part of the narrative, the Crown elicited from Constable Yake that the complainant reported to him that she had been out drinking with friends and had gone back to her friend Andrew Myles’ place. She did not recall what had happened and woke up with his penis inside her having sexual intercourse with her. She did not recall giving consent to sex.

[90] Constable Yake did not think that he had reasonable and probable grounds to arrest Mr. Myles. He did believe that the matter needed to be fully investigated.

[91] The complainant was not cross-examined on whether she had told Constable Aden or any other officer that she did not know what had happened and that she did not know if she had been raped. There was nothing about this in the notes of either Constable Aden or Constable Yake. As a result, counsel for Mr. Myles could not have anticipated this evidence from the officers at the time the complainant testified, and only learned about this after receiving Officer King’s notes after the complainant had testified.

[92] When this issue emerged at trial, there was some discussion about whether the complainant should be recalled so that the officer’s evidence about what she had said could be put to her. Counsel agreed not to do so. They advised me that they had reached an agreement about how to resolve this issue.

[93] It became obvious during closing submissions that whatever agreement counsel thought had been reached on this issue did not resolve their dispute. In his submissions, counsel for Mr. Myles suggested that I could conclude that the complainant had told Constable Aden that she was not sure whether she had consented or not and that this raised a reasonable doubt about her consent. In other words, counsel sought to rely on this hearsay evidence for its truth. The Crown’s position was that the complainant’s statement to the officer that she was unsure if she consented, if I were to be satisfied it was said, was not admissible for its truth. The Crown submitted that it was, at most, a prior inconsistent statement by the complainant that was relevant to assessing her credibility.

[94] Given the disagreement as to what had been said, and its evidentiary value, I invited written submissions on two issues: counsel’s positions on whether the complainant told the officer that she was not sure about whether she had consented and, if she had, the permissible use of that evidence. Counsel both provided written submissions.

[95] The position of the defence is that N.C. told the officer that she did not know if she had consented to the sexual intercourse with Mr. Myles. The defence submits that this utterance is admissible for its truth as an excited utterance or res gestae exception to the rule excluding hearsay. It is said to be an acknowledgement that the complainant is not sure whether she was sexually assaulted, and that on this basis, Mr. Myles should be acquitted. The defence also submits that N.C.’s statement to Constable Aden is relevant to N.C.’s reliability because it casts doubt on whether or not she was sexually assaulted as she claimed.

[96] The Crown’s position is that the defence has not proven that the complainant made what is said to be a prior inconsistent statement because Constable Aden’s evidence that the complainant did not know whether she had been raped is unreliable. The Crown says that this utterance is not admissible as a spontaneous utterance because it lacks reliability. Even if the complainant’s statement to Constable Aden were admissible, the Crown submits that it does not, in the context of this case, cast doubt on the reliability of her evidence that she awoke to Mr. Myles engaging in non-consensual sexual activity with her.

[97] I have some real doubts about exactly what the complainant said to Constable Aden. The officer testified that the complainant told her that she did not know if she had been raped. During her examination in chief, when asked what she meant by this, the officer said that the complainant:

…was saying like she didn’t remember what had happened, she knew she was drinking, she went home with Andrew Myles, but she didn’t remember if she was raped or not. She didn’t remember, she thinks she was right, and that’s all we got from her, from my, - is what I remember…

[98] The officer agreed that she recorded nothing in her notes about the complainant having said she was unsure whether she had been raped. She agreed that she could not remember exactly what was said by the complainant and agreed that she was unable to provide the complainant’s actual wording. She recalled the complainant having been intoxicated, hysterical and crying and that she had only a very brief conversation with her. Under cross-examination, she repeated that the complainant had told her she did not know if she had been sexually assaulted. Constable Aden could not recall whether there had been sexual intercourse at all, or her doubt was about whether she had consented.

[99] I accept, on the basis of Constable Aden’s evidence that N.C. expressed some doubt about what had happened between her and Mr. Myles and as to whether or not what had occurred was a sexual assault.

[100] In my view, whether the complainant’s statement to Constable Aden is admissible for its truth as an exception to the hearsay rule, or admissible as a prior inconsistent statement to impeach her credibility, it has insignificant impact on my assessment of the reliability of her evidence that she was sexually assaulted. Even were I to admit it for its truth, it does not cause me to doubt her evidence that she did not consent to the sexual activity. I reach this conclusion for two reasons.

[101] First, given that the officer does not recall whether the complainant was referring to not knowing if she had consented to the activity that took place or not knowing whether there was sexual activity at all, it is immediately apparent that the officer’s recollection of what N.C. actually said is vague. She recorded nothing about it in her notes at the time. Her memory of what the complainant said is poor. As a result, the officer’s evidence, even if admitted for its truth, does not prove that the complainant said she was unsure about whether she had consented.

[102] Second, and perhaps more importantly, the fact that N.C. was unsure about what exactly had happened is something she has always acknowledged. It seems to me that the most that can be made of the utterance to Constable Aden is that the complainant had some lack of certainty about what had happened between her and Mr. Myles. As a result, she lacked a certitude about whether she had been sexually assaulted. Because there was no cross-examination of the complainant about what she had said to police and about the uncertainty she had expressed, there is no way to decide what she was expressing uncertainty about. It could have been about what had happened before she woke up, a matter she conceded at trial. It could have been whether this was, at law, what occurred amount to a sexual assault. In my view, it would be unfair to conclude that she was telling the officer that she was unsure as to whether she had consented when this was never put to her. It is unfair to measure her credibility against what she is said to have told the officer when what she said to the officer is so unclear.

[103] As a result, I need not make a determination as to whether N.C.’s utterance to Constable Aden about not knowing whether she had been sexually assaulted was admissible for its truth. Even assuming that she expressed uncertainty, as I have explained, her uncertainty in the context of this trial neither impacts on my assessment of her credibility nor raises a reasonable doubt as to whether she consented to sexual activity with Mr. Myles.

vii) Mr. Myles’ statement to Constable King

[104] Mr. Myles said that shortly after the 911 call was made, he received a call that the police wanted to speak with him. He went outside and spoke with two officers, Constable Aden and King. He said he explained what had happened and agreed to go to the police station.

[105] Constable King was called by the Crown to testify about the oral statements made by Mr. Myles to him. On consent, while Mr. Myles was testifying a voir dire was conducted in order to determine whether the Crown had proven that the officer had accurately recorded what Mr. Myles said to him. The issue was not one of voluntariness but, rather, whether the Crown had proven what Mr. Myles said.

[106] Constable King recorded in his notes a number of passages about which the Crown had cross-examined Mr. Myles. On the voir dire, the officer testified that his notes had the following respecting his conversation with Mr. Myles:

• P. 145-146 of notes, the officer recorded that Mr. Myles said it was consensual and states: “she came”, not sure if he ejaculated in her. maybe “precum”;

• P. 147 – the officer recorded: I ask if he wore a condom; A. NO Q. should be any semen then? A. might be precum… ;

• P. 148 – the officer recorded that Mr Myles states he had consent. She told him to “put it in”;

[107] Officer King testified that where he recorded utterances in quotations, he had heard verbatim from Mr. Myles. Other things that were captured non-verbatim were not in quotations and were his best recollection of that conversation. He made his notes in his car right within minutes of his conversation with Mr. Myles.

[108] The officer confirmed that Mr. Myles had used the phrase “put it in”, but that the other parts of the notes around this phrase were not 100 percent accurate. Similarly the officer recalled that Mr. Myles used the word “precum” but could not be sure that the other words, not in quotations, were completely accurate.

[109] The Crown did not seek to tender, for its truth, anything said by Mr. Myles to Officer King. It did, however, submit that there were inconsistencies between what was proven to have been said and what Mr. Myles said in his evidence and that this was relevant to Mr. Myles’ credibility.

[110] Section 11 of the Canada Evidence Act provides:

11 Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

[111] Officer King was clear that the only parts of his notes that he believes are verbatim recordings of what Mr. Myles said are contained in quotations. The rest are a summary of the gist of what was said, recorded to the best of his ability a few minutes later, but not purporting to be word-for-word.

[112] I am not satisfied that Mr. Myles told the officer that he was unsure about ejaculating in the complainant. To the contrary, while he may or may not have indicated to the officer that he was sure about ejaculating, he seems to have made clear to the officer that the complainant might have semen in her, which he described as “precum”. Moreover, he was clear that he had not worn a condom.

[113] I am satisfied, on a balance of probabilities, that while he was explaining to the officer that the complainant had consented to the sexual activity, Mr. Myles told Officer King that the complainant had said ”put it in”. This was recorded in quotation marks shortly after. I accept that this was said. I will address the relevance of this later in these reasons.

viii) Agreed facts respecting the examination of the complainant

[114] The police took the complainant to Chantal’s Place.

[115] It is agreed that the complainant was examined between 7:00 and 9:00 a.m. on October 28, 2017. Both an external genitalia swab and a vaginal swab from the complainant revealed DNA from semen. Mr. Myles could not be excluded as the source of those samples.

[116] At 9:45 a.m., N.C. provided a blood sample, which was analyzed by a CFS toxicologist. This blood sample had 30 mg alcohol in 100 mL of blood. Ms. C.’s 911 call was at 5:28 a.m., and the parties agree that the relevant period for the toxicology analysis was between 4:20 and 5:20 a.m.

[117] Based on an elimination rate of 10-20 mg of alcohol in 100 mL of blood per hour, the complainant’s blood alcohol concentration (“BAC”) at the time of the alleged sexual assault was between 75 and 140 mg of alcohol in 100 mL of blood.

[118] The parties further agree that:

• At the lower end of the range (75 BAC), an individual may experience the effects of alcohol consumption as lowering of “fine motor skills”, which can include intricate acts like writing or opening a door with a key.

• At the lower end of the range (75 BAC), an individual is less likely to experience lowering of “gross motor skills”, which can include basic functions like walking, sitting down and basic coordination.

• At the high end of the range (140 BAC), an individual is more likely to feel intoxicated, to have difficulty with fine motor skills, gross motor skills and coordination generally.

• At the high end of the range (140 BAC), if alcohol was consumed rapidly, it is more likely to impact an individual’s memory retention.

• As a central nervous system depressant agent, alcohol can impair brain functions including memory retention. If alcohol is consumed in a bolus fashion, it is more likely that an individual’s memory retention would be impacted.

• Not everyone experiences memory loss as a result of alcohol consumption.

• Alcohol-induced memory loss could be fragmented.

• At the lower end of the range (75 BAC), the impact of alcohol on memory retention is unlikely.

• At the higher end of the range (140 BAC), the impact of alcohol on memory retention is more likely.

D. Conclusions regarding the evidence and its legal effect

[119] After considering the evidence as a whole, I am satisfied beyond a reasonable doubt that the complainant is telling the truth about what happened. I accept her version of events as to how the sexual activity took place and reject entirely Mr. Myles’ evidence that it was the complainant who instigated and actively engaged in the sexual activity. I am satisfied beyond a reasonable doubt that she did not, subjectively, consent to having sexual intercourse with Mr. Myles.

[120] I am also satisfied beyond a reasonable doubt that Mr. Myles knew that N.C. did not consent to having sexual intercourse with him. On the facts as I find them, there is no air of reality to any claim by the accused that he honestly believed that the complainant had communicated consent to sexual activity. I do not believe the accused, nor does his evidence leave me with a reasonable doubt that he believed that the complainant had communicated consent. On the evidence that I do accept, which includes the evidence of the complainant, I am satisfied beyond a reasonable doubt that Mr. Myles is guilty of sexual assault.

[121] I will set out below a summary of my findings respecting credibility.

i) The Complainant’s Credibility

[122] In my view, the complainant’s evidence was presented in a manner that was forthright, candid and fair. She acknowledged that she and Mr. Myles were friends, that they went out regularly and that she invited him to go out on the night in question.

[123] N.C.’s evidence about her relationship with Mr. Myles made sense. She perceived him as the uncle of her friend, and as a person who was older. She said she was not attracted to him. While she acknowledged that they had discussed the possibility of being more than friends, she testified that she made clear to Mr. Myles that she was not interested in a relationship and that she would not have consented to having sexual intercourse with him. I accept her evidence about this, which seemed reasonable in view of their age disparity (she was 29 and he was 41), the manner in which they met and her feelings about him.

[124] The Crown submits that the complainant was credible. When a witness like the complainant, has no memory of part of the relevant time period, that factor alone does not made her other evidence unreliable. What it means is that there is an absence of direct evidence from her as to what happened during the period for which she has no memory. It is still possible for the evidence she gave for the periods that she does have a memory to be reliable: R. v. Kishayinew, (2019) SKCA 127 per Tholl J.A. in dissent; at para 75; reversed 2020 SCC 34.

[125] I found the complainant to be a very believable witness. I say that for the following reasons:

• The complainant’s evidence was largely internally consistent. I did not find the cross-examination of her on the 911 call or her earlier statement to reveal areas of significant or concerning inconsistency;

• I did not find any significant difference or inconsistency between the versions of the sexual assault that have been given by the complainant. Where there were differences in her wording or descriptions of what happened as between her evidence in chief and her cross-examination, I found them to be of a minor nature;

• The complainant fairly acknowledged that there were things she did not remember. She acknowledged that these gaps seemed unexplained, given the quantity of alcohol she consumed and her general level of tolerance. I found this acknowledgment enhanced her credibility;

• The complainant’s BAC at the time of the sexual activity was between 75 and 140 mg alcohol / 100 mL of blood. Depending on where she was within this range, it would not be at all unexpected or unreasonable for her to have experienced the memory gap about which she testified;

• The complainant’s demeanour immediately after the sexual activity, both when she called 911 and at the time the police arrived, showed her to be extremely upset about what had happened, which is further circumstantial evidence that she had been sexually assaulted;

[126] The defence submits that the complainant’s absence of memory leaves gaps in the evidence that give rise a reasonable doubt about her state of mind. Counsel for Mr. Myles also points to a number of specific areas in which the complainant is said to have been inconsistent:

• The submission was made that the credibility and reliability of her memory were undermined because she had to be reminded about issues relating to the previous relationship between her family and that of Mr. Myles, and had to be prompted about the fact that Mr. Myles assisted her mother in coming to Canada. I disagree with counsel’s characterization of N.C’s memory. In my view, she was forthcoming about her history with Mr. Myles. She agreed that they had been close. She agreed that their families were connected. While she was unable to be specific about some of the details about their relationship, such as how many times she went out with Mr. Myles before her sister visited or whether she had found Mr. Myles his apartment (although she said it was possible, she just did not recall), I found her to be a careful and responsive witness with a generally good recollection of the history between them. Furthermore, I note that when she was unsure as to details, she candidly admitted that she did not know.

• Counsel also submits that the complainant was inconsistent when she described how the sexual intercourse ended, a factor that suggests she is not credible. Counsel submits that in chief, the complainant said that she was under Mr. Myles as he had sexual intercourse with her, and that she told him to stop and had to push him off. Counsel says that under cross-examination, the complainant agreed with what she had said in her police statement, which was that Mr. Myles had stopped when she told him to, and that there had been no push. Then, counsel says that under re-examination, the Crown elicited from the complainant that the intercourse only stopped when the complainant pulled away from him, which was different again from her pushing him off or telling him to stop.

I have carefully reviewed the complainant’s evidence. During her examination in chief, N.C. said that she asked the accused what he was doing and that he continued to have sexual intercourse with her as she came out of her foggy state. She then forced herself to push him off her. Under cross-examination, she was taken to her police statement where it was the officer who suggested that she had pushed him off. She was then taken to a passage in her police statement in which she told the officer that her voice changed and that she told him to get off. I understood her evidence to be that he did not get off her immediately, that at first she was drowsy and weak and that as she found her strength and became more aggressive, she told him to get off and pushed him off at the same time. Under re-examination, the complainant was asked how she reconciled this evidence with the passage earlier in her statement in which she said that she “found the strength to pull away”. She testified that there was no inconsistencies in her evidence in her mind.

With respect, I do not find the complainant to have been inconsistent about how the sexual intercourse ended. As a whole, I understand her evidence to be that she awoke in a drowsy state and felt weak. She told Mr. Myles to get off her. He did not do so immediately. As she gained some energy, she used a more aggressive voice and her physical strength to push the accused off her and pull herself away from him and off the couch. I am not troubled in the least by the fact that she described using both her voice and physical force. Nor am I troubled by the fact that she described finding the strength to both push the accused away and pull herself away. In the context, I see these as being practically the same thing, or of such a minor degree of difference as to be inconsequential.

• Counsel also says that the complainant was not completely truthful in her 911 call. I accept that when asked if she knew the last name of the person who had sexually assaulted her, she said that she did not. She frankly agreed that this was not truthful and explained that at the time, she was emotional and scared and did not want to share that information. She then said that while she knew he had done something wrong, maybe she had not meant to call the police. Asked why she was scared, she agreed that she had not been scared of Mr. Myles, who was right there when she made the call. But, she was scared of the whole situation that she was creating by making this report.

Under cross-examination, the complainant was asked whether the reason she had not meant to call the police was because she did not know what had happened. She responded firmly that she did know what had happened, although she agreed that there was a gap of time in her memory.

I accept the complainant’s explanation for not telling the 911 operator Mr. Myles’ last name. It was not because she was not sure what had happened, although there were, of course details, about which she was and remains unsure. Her explanation for not giving Mr. Myles’ name was that she was, as she testified to, in shock, confused and worried about the consequences of making such a report. I accept this as a reasonable and logical explanation. It does not make me doubt her evidence that she did not consent to the sexual activity.

• While counsel makes much of the complainant having reported to Constable Aden that she does not know what happened, or whether she was sexually assaulted, I do not find what N.C. said to Constable Aden to undermine her credibility. As I have already explained, it is very unclear what the complainant was saying when she expressed uncertainty as to what had happened to Constable Aden. Even if her statement that she did not know whether she had been sexually assaulted were admitted for its truth, in the context of this case, it would not affect her credibility. First, she was not recalled to be cross-examined about what she meant. Second, she has always acknowledged her absence of memory. I am not persuaded that what she said to the officer was in fact an expression of any doubt about whether she consented to the sexual activity with Mr. Myles and accept that she did not do so in a legally effective manner, as I will explain below.

ii) Mr. Myles’ Credibility

[127] I turn now to Mr. Myles’ evidence. I did not find Mr. Myles to be a credible witness. Much of his evidence was intended to create the impression that the complainant was the instigator of sexual activity and that this was something she had been moving towards for some time in their relationship. I do not accept this. Moreover, most of it is not relevant to the issue of whether she consented to the particular sexual activity in question. On that issue, I found Mr. Myles to have fabricated a version of events that was implausible and unbelievable.

[128] Much of Mr. Myles’ testimony, particularly in respect of his relationship with the complainant and any interest he had in her, can fairly be characterized as having been evasive and self-serving. While this theme permeated his evidence, a few examples illustrate the point:

• When he was asked about conversations he had with the complainant about being more than friends, he seemed to me unwilling to respond directly, inserting instead that it had been the complainant who had suggested that they get married and that it was her who made comments to him about other women and called him her husband.

• Repeatedly, when asked whether he had been interested in the complainant, Mr. Myles said things like that that they went out and partied, declining to respond directly to this important question.

• Although Mr. Myles’ evidence was clearly intended to create the impression that the complainant had taken many steps to convey an interest in him, the most overt example of this was his evidence that “every time” they went out she had been “all over” him. Yet, he would not agree that she had been leading him on, preferring to cryptically respond to questions about what he had been thinking and to revert to his position that they were friends who partied and that he was not looking to be involved with her. Like so much of Mr. Myles’ evidence, this allegation respecting the complainant’s behaviour towards Mr. Myles was never put to her in cross-examination and so she never had the chance to respond to it.

• Despite the complainant’s evidence that she was eleven years younger than him, and was about same age as his niece, when asked about the age gap, Mr. Myles initially said he would not be involved with someone where there was more than a ten year age gap and then insisted that he believed her to have been only 7 years younger. He had to have known that this was false. In my view, he said what he did to try enhance the likelihood that she would have wanted to have sexual activity with him, particularly in light of her evidence that she viewed him as the uncle of her friend.

• When Mr. Myles and the complainant both described in similar ways her having assisted him to prepare a Thanksgiving dinner a few days before October 27, 2017, Mr. Myles added details in his evidence to again try to create the impression that N.C. was interested in him. He said that the day after, N.C. called him and wanted to know what his family thought of her and if they had asked about “what she was” to him. He said he thought this was weird. He denied having viewed this as her having been hitting on him, though it was apparent to me that the only reason he offered this detail was to convey precisely that. N.C. was never asked about whether she made this call or, if she had, why. Setting that issue aside, it is my view that Mr. Myles was trying to create the impression, once again, that the complainant had an interest in him beyond friendship.

• Mr. Myles evidence about what happened at the club with N.C. pointing out another woman and then appearing to be jealous and putting her head on his shoulder and wanting to leave was, in my view, another example of him trying to create the impression that N.C. was initiating something beyond friends with him. Again, Mr. Myles’ version of events was never put to the complainant. I found his evidence about the complainant’s conduct, in view of her evidence that she was feeling unwell, improbable and fabricated by him to advance his position that she later initiated sexual activity.

[129] Beyond his evidence about the relationship between him and N.C., I found much of Mr. Myles’ evidence as to what happed on October 27, 2017 to be unbelievable.

[130] Mr. Myles’ explanation as to how and why the complainant came to be at his home for the night was, for me, illogical and contrived. On N.C.’s evidence, she had not been feeling well. Mr. Myles seemed to agree that she was feeling poorly as they left the club. She told him she had vomited in the car, although he seemed to have been at pains in his evidence to distance himself from knowing that she had been sick. Their plan had been for him to drive her home. She lived two minutes away. He had an early morning with his son the next day. She had never before slept over at his home. Yet, for reasons that were very unclear to me, on the drive home, he asked her whether she was alright and whether she wanted to go home or go to his place. He agreed that he wanted her to come over even though she was not feeling well. I cannot accept that he would have asked her to come to his home for the night unless he wanted to pursue his sexual interest in her. I conclude that he used this opportunity to take her to his home for the night with the intention of pursuing some sexual activity with her.

[131] Furthermore, Mr. Myles’ evidence as to what happened when they got to his home was not believable. While he testified that the complainant said that she wanted them to stay on the couch together, there would have been no reason for Mr. Myles to sleep there other than if he were interested in being close to N.C. He said that she went upstairs to the washroom. Rather than getting the couch ready for her, he changed and remained there. She was, in my view, as evidenced by the toxicology evidence, in an intoxicated state, which he knew from her having vomited. He chose to lay down together in what he agreed was a “spooning” position. Mr. Myles’ decision to sleep on the couch with the complainant, who he knew felt poorly, rather than going to his bed, seems to me opportunistic. The most likely explanation, in my view, is that he wanted to take advantage of her state to spend the night in close proximity to her, possibly involving sexual activity.

[132] Mr. Myles’ evidence as to what happened in the early hours of October 28, 2017 was, in my view, also not credible.

[133] First, given how she felt physically only hours before, and how she felt about Mr. Myles, I do not accept as plausible or believable that she made the sexual advance towards him that he described.

[134] Second, I found that there was a material difference between the manner in which he described what happened in his evidence and what he told the police immediately after. When he testified, he described waking up with the complainant grinding her naked buttocks against him. He said that he penetrated her and that she then moved from her side to her back and started saying his name. He agreed that she had said nothing else until she was moaning his name after she turned onto her back. Under cross-examination, Mr. Myles denied having told the police that the complainant said “put it in”. After a voir dire, as I have explained already, I was satisfied that Mr. Myles did say this to the police. In my view, this is a significant inconsistency in Mr. Myles’ evidence. Mr. Myles told the police, in what can only be understood as an effort to persuade them that what had occurred was consensual, that the complainant had told him to “put it in”. Yet, he denied this at trial. No explanation has been provided for what I find to be a material inconsistency.

[135] I also found the description of the sexual activity between them that was offered by Mr. Myles was embellished in order to create the impression that it had been both consensual and satisfying for N.C. For instance, it seemed to me that he was at pains to portray a situation in which N.C. experienced pleasure from their activity. He spoke about her moaning his name multiple times. He also explained that it was his view that she had reached orgasm. Neither of these versions of events were put to the complainant for her to respond, despite the fact that she testified to having been awake and aware of what was happening as Mr. Myles continued to have sexual intercourse with her. In my view, Mr. Myles’ evidence about the way in which the complainant embraced and responded to the sexual activity was fabricated by him to bolster his position that she had been consenting. I found it unpersuasive and reject that this happened as he described.

[136] Finally, I found Mr. Myles’ suggestion that N.C. only objected to what had been consensual sexual activity when she realized that a condom had not been used was unpersuasive. It appeared to me that he was trying to provide an explanation for N.C.‘s decision to immediately call 911 and report that she had been raped. The difficulty with Mr. Myles’ position is that that N.C. testified that she does not know if Mr. Myles wore a condom. It is highly unlikely that this would have been what caused her to call 911, given her admitted uncertainty about condom use.

[137] Mr. Myles is, of course, under no obligation to explain why N.C. would have fabricated her evidence. However, the fact that he chose to testify in a way that created a motive for her, a motive that I reject given her evidence, causes me to have further concerns about his credibility and the reliability of his evidence.

[138] Having considered Mr. Myles’ evidence as a whole, I find him unreliable and unpersuasive. In particular, I reject his suggestion that the complainant initiated the sexual activity and that he just went along with it. I reject his version of how the sexual activity took place.

iii) Legal Conclusions

[139] I accept the complainant’s evidence that she awoke to Mr. Myles having sexual intercourse with her. As she came out of the foggy sleep she had been in and realized what was happening, she tried to get Mr. Myles off her and told him to stop. He did not do so immediately, though he did shortly after.

[140] The only issue respecting the actus reus of the offence is whether she subjectively consented to the sexual activity. There is, of course, no implied consent. In my view, the complainant lacked the capacity to consent to any sexual activity while she was asleep. She could not, while she slept, have legally consented.

[141] To be clear, I reject Mr. Myles’ version of events in which the complainant, while awake, initiated the sexual activity. I find that Mr. Myles knew, at the point that he initiated sexual intercourse with the sleeping complainant, that she lacked the capacity to consent and was, therefore, not consenting. Even if he was unaware that she lacked the capacity to consent, he knew she was not consenting. I have no doubt in concluding on this evidence that in commencing sexual intercourse with the sleeping complainant, Mr. Myles was committing a sexual assault.

[142] Once she awoke, I find that the complainant had the capacity to consent to the sexual activity. But I find that she did not do so. As she realized what was happening, she made efforts to have Mr. Myles get off of her. He did not do so immediately, continuing to have sexual intercourse with her. I find that at this point, he knew that she was not consenting and continued to engage in sexual activity with her, as she described. She told him to stop and he continued until he was pushed off and she was able to get up and to call 911.

[143] This is not a case in which there is an air or reality to a mistaken belief in communicated consent on the part of Mr. Myles. First, I have rejected the accused’s version of events. It is utterly inconsistent with the complainant’s version of events, which I accept. Second, there is, in my view, no possibility that Mr. Myles could have held an honest but mistaken belief in communicated consent when N.C. was asleep. Third, on the version of events I accept, there is no evidence that after she awoke, and was capable of consenting, that he took reasonable steps to ascertain whether she was consenting. Any belief in consent that Mr. Myles held was based on erroneous views about the meaning of consent and implied consent. There is no basis to find, on the complainant’s evidence, that her voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[144] An honest but mistaken believe in communicated consent cannot arise on these facts and in these circumstances. This is not a case in which the material contradiction between Mr. Myles and N.C. is about their interpretation of what happened or where there is evidence of ambiguity. It is a case in which their stories are diametrically opposed. Their versions of events cannot be spliced together so as to give rise to an air of reality in an honest but mistaken belief in communicated consent on the part of Mr. Myles: R. v. Davis, [1999] 3 S.C.R. 559 at paras. 81-86.

Conclusion

[145] On the basis of the analysis set out, I find Mr. Myles guilty of sexual assault.

Woollcombe J.

Released: May 27, 2021

COURT FILE NO.: CR-19-1603

DATE: 2021 05 27

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDREW MYLES

REASONS FOR JUDGMENT

Woollcombe J.

Released: May 27, 2021

[^1]: This decision was released from the Supreme Court of Canada while my decision in this matter was under reserve. As a result, counsel were invited to make written submissions as to its impact on this case. Both did so. Their submissions were considered in reaching this decision.