Court File and Parties

Court File No.: CR-20-00000643-0000 Date: 2023-01-09 Ontario Superior Court of Justice

Between: His Majesty the King And: E. R., Defendant

Counsel: Paul Erskine, for the Crown Phillip Millar and Luke Reidy, Counsel for the Defendant

Heard: November 21, 22, 23, 24 and 25, 2022

Justice: G.D. Lemon

Judgment

Background

[1] The events that led to this charge occurred in a local university residence. Some of the participants still attend that university. To protect their privacy, courts often change names to initials. There are many witnesses to consider and initials will make for difficult reading; I have therefore changed all of the names of the witnesses.

[2] E.R. is charged that he sexually assaulted Ms. Christi Mathewson contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46.

[3] There is no issue that the two engaged in sexual activity; the question is whether the Crown has proved beyond a reasonable doubt that Ms. Mathewson did not consent to that activity and whether E.R. did not have an honest but mistaken belief in her consent.

Authorities

[4] Counsel agree on the well-known principles of law that apply to this case. For the benefit of Ms. Mathewson, E.R. and others in the courtroom, I can summarize them as follows.

[5] First, E.R. is presumed to be innocent. The presumption of innocence means that E.R. started the trial with a clean slate. The presumption stays with him throughout the case and is defeated only if Crown counsel satisfies me beyond a reasonable doubt that E.R. is guilty of the crime charged.

[6] Although the slogan “believe the victim” has become popular of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of an offence and then placing a burden on that individual to prove their innocence. That is contrary to our fundamental principles of justice. At the outset of any trial, there is no assumption, one way or the other, about the credibility of the complainant. See: R. v. Nyznik, 2017 ONSC 4392.

[7] The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system. A reasonable doubt has been described as not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[8] It is not enough for me to believe that E.R. is probably or likely guilty. In those circumstances, he must be found not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[9] That said, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Still, proof beyond a reasonable doubt is much closer to “absolute certainty” than it is to “probability”.

[10] Further, I am not to decide whether something happened simply by comparing one version of events with another and choosing one of them. Instead, I must consider all of the evidence and decide whether I have been satisfied beyond a reasonable doubt that the allegation is proven.

[11] E.R. gave evidence in his defence along with three defence witnesses. In most cases, if I accept the defence evidence of the accused, he or she must be found not guilty. However, even if I do not accept the defence evidence, if that evidence leaves me with a reasonable doubt about guilt, I must acquit the accused.

[12] Finally, even if E.R.’s defence evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[13] In this case, the Crown argues that even if I were to accept E.R.’s evidence, a conviction may still follow. Counsel relies on R. v. Ibrahim, 2019 ONCA 631, at paras. 35-66. I will deal with those arguments below.

[14] The defence concedes that if I reject E.R.’s evidence, find that it does not raise a reasonable doubt and accept Ms. Mathewson’s evidence beyond a reasonable doubt, then the offence is made out.

[15] In considering all of the evidence and those principles of law, for the following reasons, I find E.R. not guilty of sexual assault.

The Evidence

Evidence of Christi Mathewson

[16] Ms. Mathewson was 18 at the time of these events. She came from Thunder Bay to start her first year at the University of Guelph in September of 2018. This was the first time she had been away from home, and she had been looking forward to starting university in Guelph. At the time of this incident, Ms. Mathewson was living in “Mills” residence in a room with two roommates. She arrived in Guelph on the last day of August and moved into her residence room on the first day of September which was her birthday. In order to meet people, she went door-to-door to introduce herself.

[17] That year, frosh week lasted approximately five days. There were concerts and live music. Ms. Mathewson first met E.R. in September of 2018 at an outdoor concert next to the residence. This event occurred three or four days into frosh week. Ms. Mathewson was with a group of other students and introducing herself to others to make friends and obtain contact information.

[18] At around 11:00 p.m. or midnight, Ms. Mathewson went up to a group of six or eight males; E.R. was part of that group. She knew none of them. She was “going for bulk” to meet as many people as possible. She approached the group and they made fun of her approach “but in a lighthearted way”.

[19] Ms. Mathewson spoke with the men for three or four minutes but spoke to E.R. on a more one-to-one basis for about a minute. There were others listening to the conversation as they stood in a circle. She does not remember what they spoke about. She did not exchange any contact information with them and moved on.

[20] She then saw E.R. about three weeks later but still in September. They were in the same class. She met E.R. at the door, and they walked in together. They recognized each other from the earlier event and sat down together. The class was primarily a lecture, and they spoke together over that two- or three-hour session.

[21] In conversation, Ms. Mathewson told E.R. that she lived in the Mills residence. He told her that he lived in the South residence but that he had to return something to a friend at Mills. After the class, they walked there together. They also exchanged social media information. She believes that was for both Snapchat and Instagram. She had no concerns about providing him with that information. She had no concerns about his intentions because she knew what she “wanted” out of the conversation. That is to say, another friend or contact.

[22] E.R. appeared to be “social and talkative”, and it was easy to hold a conversation with him. She only wanted a friend but thought that he wanted a boyfriend/girlfriend relationship because he was flirting with her. She was not flirting back but was smiling back at him. She liked him at that point.

[23] After class, Ms. Mathewson and E.R. went back to the Mills residence about 5 minutes away. He went with her up to the third floor but stayed on the elevator when she got out. As far as she knew, he went back to the second floor to meet his friend.

[24] There is an issue about who Ms. Mathewson may or may not have been dating at the time of the offence. Ms. Mathewson testified that she was not yet dating Mr. Stengal. She testified that she hoped for more of a relationship with him rather than a relationship with E.R and that she started dating Mr. Stengal after the events in issue.

[25] She then met E.R. at a party the same week. The events in issue occurred at that party.

[26] Ms. Mathewson first attended a party at Mills residence for a girlfriend’s birthday. She is not sure what day the birthday party happened, but it may have happened on a Friday or a Saturday evening.The girlfriend’s party started at approximately 8:00 or 9:00 p.m. and Ms. Mathewson stayed there for approximately 2 hours. There were twenty people at the party, evenly mixed between men and women.

[27] The women at the Mills party decided to leave the party. Ms. Mathewson was aware that E.R. was having a party at his own residence because of Snapchat communications between them that week. She contacted E.R. and told him that they were about to leave their party, and he told her that she was welcome to come to his party with her friends. She told E.R. that they would show up and she left the Mills party with eight or ten other girls at 10:30 or 11:00 p.m.

[28] That night, Ms. Mathewson started drinking at approximately 8:00 or 9:00 p.m. when she arrived at the Mills party. She was drinking “coolers” but had no other intoxicants. She does not remember the amount she drank but it was “a substantial amount”. At the time she left the Mills party, she was “definitely drunk” – an “8” on a scale of 1 to 10 for drunkenness.

[29] She explained that she had not started to drink until after she left her hometown. When she came to Guelph, she drank “a lot” the first two days of frosh week. She said “a lot” meant to the point of drunkenness, losing her balance and having slurred speech. However, she did not drink like that after frosh week.

[30] It took the women less than 10 minutes to get to the South residence. E.R. was waiting for them at the entrance and brought them to the party. Ms. Mathewson is not sure what floor the party was on, but she believes it was the second or third floor.

[31] They went up some stairs to a small “clearing”. To the left was a bathroom and there were three room doors down the hall. There were a group of male students there and there may have been one or two women. It was a high energy group and the party started when they arrived. She cannot remember if there was music, but it was not loud, and no one was yelling.Everyone was drinking and there were empty alcohol containers in sight.

[32] Some of the group “paired off” but others spoke in groups. Ms. Mathewson spoke with her friends and E.R. He made an effort to be “one-on-one” with her and separated or “isolated” her from others. He seemed interested in her and she was uneasy about that. She felt like she was “in a room full of people but by myself.” She was nervous, a little bit anxious, hesitant and suspicious of E.R.’s intentions. She said nothing to him about these concerns.

[33] She drank only one or two coolers that she had brought from Mills. E.R. offered a drink to the woman whose birthday it was but not to her. At this point, she was still a “9 out of 10” for impairment. She knew that she lost her balance and had slurred speech, but she was not concerned about being ill to her stomach. She was happy at the time because she could see the birthday girl was happy to be at the party and she had arranged that for her birthday.

[34] At one point, when she came out of the bathroom, she found that all of the partygoers had left. She ran down the stairs and found the party one floor down in another, larger, common area where there were couches. The group was still about 20 people.

[35] She was uncomfortable being around E.R. because she was not looking to have a physical relationship with him, and he appeared to want one. She attempted to distance herself from him by speaking with other people. She does remember speaking to others at that party but only specifically remembers one other woman and a heavyset male.

[36] She then realized that she did not know any of the individuals that were at the party. Her other friends had left but only one had told her that she was leaving. When that woman said that she was leaving, Ms. Mathewson did not wish to leave and therefore stayed.

[37] She was still trying to be sociable with people at the party and did what she described as a “party trick.” She had been a gymnast for a decade in the past and was able to do a line of ten back handsprings down the hall. The others clapped and cheered her performance. In return, E.R. dropped down into the splits in front of her. He then told her that they could have good sex because both were flexible.

[38] Ms. Mathewson denied that she did the splits against the wall beside E.R. and is certain that E.R. did the splits in front of her.

[39] When she was in high school, Ms. Mathewson was athlete of the year every year. She gave up gymnastics when she started high school but continued with volleyball, basketball, and other sports. She agreed that she was fit and strong enough to do backflips.

[40] With respect to her impairment at that time, in examination in chief, Ms. Mathewson said that she stumbled, but in cross-examination she denied that she was stumbling. Although she was a 9 out of 10, she could still do backflips because of “muscle memory”. She agreed that she stumbled into the bathroom but that was because the door that she was leaning against came open and not because she was impaired.

[41] Ms. Mathewson testified that at the time that she did the backflips, she had no fear of her circumstances because E.R. was no longer isolating her. She was, however, still uncomfortable about his interest in sex. She was uncomfortable with his comment about being flexible but laughed and smiled and attempted to avoid him by visiting with others. She spoke with the others and E.R. attempted to become part of that conversation, but she was cool towards him, and he left to speak to the rest of the group.

[42] She then thought that it was time to leave and go back to her residence. However, at this point, E.R. had possession of her telephone; she does not know how or when he did that. She recalled that she was on one side of a circle of friends, and he was on the other side showing her the phone. She ran after him around the circle twice to try to get the phone from him, but he then ran off down the hallway with it. She does not remember any conversation between the two of them as they ran but she was laughing, “lighthearted”, not upset and thought it was funny that he took her phone. She cannot remember any response from E.R. or the others in the room.

[43] She ran after him but did not know where he was going. She was about 10 feet behind him when he went into a room that she assumed was his room. It was a double room with two desks and two beds. When she came into the room, she had her hand on the door frame and saw him in the middle of the room. He was facing her with the phone and still laughing, as was she when she came into the room.

[44] However, in cross-examination, she acknowledged for the first time that she may have run into E.R.’s room to avoid the residence assistants. The RAs patrolled the residence to break up parties and drinking, such as was going on at the time.

[45] She has no memory of running from the RAs but said that it is possible she did. She was not certain that the reason she was in the room was because E.R. took her phone. It was weeks later that she recalled that he had lured her there with her phone. She was able to “piece together” what she could to recall what occurred. Ms. Mathewson agreed that, for a long time, she could not remember how she got into E.R.’s room, and it took “a while to get some of these memories back.” A week later, she told Mr. Stengal that she was lured into the room by E.R. stealing the phone. She put that together from what she remembered. She spoke to friends about what occurred but does not remember what they said or told her.

[46] She did not think that it felt right to be in the room with E.R., particularly when he grabbed her right arm and closed the door. As she said at trial: “this might not be the best situation to be in.”

[47] When E.R. closed the door, the room was dark, but she was able to see him. Neither she nor E.R. said anything that she could recall before he closed the door. She had lost track of where her phone was located.

[48] E.R. pushed her back onto a bed and jumped on top of her. He held her arms down and she stopped laughing. She told him that she did not want to do anything; she said “no” and “stop”. She was on her back, and he had his hips between her legs. His hands were holding her arms at the height of her head.

[49] She panicked and realized that she had “got [her]self into a pretty bad situation”. From her training, she knew that she needed to say “no” or “stop”. She does not remember if E.R. replied to anything that she said.

[50] Ms. Mathewson is 5'5” and E.R. is 6’2”. Their hips were against each other's hips, and he had all of his weight upon her. At one point, she pulled her knees up between them, but he pulled them back down again. She does not remember how her pants came off, but she did not take them off. She does not remember what he was wearing. She did not take his clothing off.

[51] At some point, he let go of her hands and kept her down by placing his weight upon her. She continued to say “no” and “stop” for about a minute, but when he did not respond, she “gave up” and remained “numb and scared.”

[52] Ms. Mathewson testified that she is not clear about what happened, but the assault occurred over 3 to 4 minutes. She believes that he penetrated her vagina. When she was pinned down, she felt “skin on skin” between their genitalia. She is not sure if E.R. ejaculated but she later tested for an STD and obtained a Plan B.

[53] He then rolled off her and she got up and dressed. She ran out of the room. She does not recall if he said anything. She is certain that she said nothing. It took her about 30 seconds to dress and leave. She saw her phone on the floor beside the bed and took it with her.

[54] In cross-examination, Ms. Mathewson confirmed that she could “remember him pushing me down on the bed and holding me down there and then our clothes were off. I remember the lead up to it. I don’t know what happened during it after penetration until I was able to get up, put my clothes back on and run out.”

[55] Ms. Mathewson denied that she had kissed E.R. before she was on the bed. When she came into the room, she “froze” because of the bad situation she was in.

[56] She does not know how her clothes came off but did not want them to come off and did not take them off herself.

[57] She assumed that E.R. had ejaculated because suddenly, he stopped. She has no recollection of him having a condom or holding one up. He was holding her hands down.

[58] She denied that she did anything requiring flexibility while she was having sex with E.R. Instead, he forced himself between her legs.

[59] She does not remember saying to E.R. “I have to go; my friends are out there”. She does not recall getting up and then returning to kiss him again.

[60] She is not certain if E.R. asked for coffee or lunch to talk about it. He could have but she was not listening or responding to what he said.

[61] She was in the room 3 to 4 minutes and, when she came out, there was no one else at the party. She was “really numb” and there was an “urgency to get away”. She was shocked and did not understand what she had experienced. In any event, she did not want it to have happened.

[62] Ms. Mathewson does not remember how she got out of the residence, but she ran home, stopping only once at a hot air vent. When she got back to her room, her roommates were not home, and she laid in her bed.

[63] She told her best friend about what occurred, but she does not remember the conversation. That was later the next day, and she was sober at that time. She agreed that she had some doubt if she had consented at the time that she spoke with her friend.

[64] Ms. Mathewson stayed at the university for the next two years. She saw E.R. on campus and thought about going to the police particularly when she kept running into him. It appeared to her that E.R. was trying to intimidate her. It was her “perception” that E.R. was staring at her and making eye contact with her. She felt that he was watching her. She ran into him at South residence where her boyfriend resided.

[65] Ms. Mathewson went to the police for the first time at the start of her second year in September of 2019. She had not seen E.R. that summer but was triggered in September when she saw him at the gym. Later, Mr. Stengal confronted E.R. as he was coming up the stairs towards where she was exercising. This upset both her and Mr. Stengal. Afterwards, Mr. Stengal said “That's enough, we have to go to the police.” They therefore “collaborated” in going to the campus police and then to the Guelph Police Service.

[66] The police told her to think about whether she wished to lay charges or not. After she discussed it with family members, she decided to proceed on December 1, 2019.

Evidence of E.R.

[67] E.R. is commuting from Toronto to continue his education in accounting at the University of Guelph. At the time of these events, he was in first year at the University of Guelph. He was 19 years of age and residing in South residence in a two-student room.

[68] With respect to meeting Ms. Mathewson on the first occasion, he agreed that what she said was accurate. She came up to the group and he spoke with her for 10 to 15 minutes. The only thing she left out was that after they met, she went to the front of the concert with two of his friends. He thought that Ms. Mathewson was pretty; he liked her a lot and that they had had a good conversation.

[69] He next met Ms. Mathewson at a class. He cannot recall when this occurred, but it was the first or second week of class. E.R. was late but Ms. Mathewson walked in after him and sat down beside him. He recognized her from the first meeting, and they talked throughout the class that lasted about 50 minutes. She said that she was going back to her residence, and he told her he had a friend there as well. He wanted to find a way to continue to speak with her.

[70] As they walked towards the residence, they exchanged Snapchat and Instagram information. He thought that it “felt like a date”. E.R. told Ms. Mathewson that he was meeting with friends, and she said to contact her after he had met with his friends. He knocked on his friend’s door and that individual was not there. He therefore messaged Ms. Mathewson and went home. She responded a half an hour later, but they did not meet.

[71] Before the party, they had been messaging throughout the week.

[72] With respect to the party, E.R. testified that he did not directly ask Ms. Mathewson to come to the party. He and his friend Ryan decided to have the party and he had posted on his Snapchat story that he was organizing a party and that his friends could come between 10:00 and 10:30 p.m. Those friends, including Ms. Mathewson, responded. She told him that her friend was having a birthday and asked to come to the party. This was all through Snapchat.

[73] E.R. met Ms. Mathewson at the front of the building to let her in. He and a friend helped her and all of her friends to sign in somewhere between 10:00 and 10:30 p.m. The party had started at 10:00 and there were friends of his, residents and others that he knew at the event. He had had nothing to drink before the party because he had set up a beer pong table, arranged music and was texting others about the party.

[74] Everyone brought their own drinks to the party. He had a box of four “Cold Shot” beers in his room. Before Ms. Mathewson arrived, he took two of them to offer to her. She declined the beers, but her friend suggested that she wanted one. However, when he offered it to her, she declined. He therefore drank both beers on the spot.

[75] It appeared that Ms. Mathewson was drinking from a water bottle, but he did not know what was in it.

[76] The party was in a small space for 20 people. It was approximately 10 feet by 10 feet, and they were grouped around a beer pong table. He talked with Ms. Mathewson, and they flirted with each other. He denied that he isolated her or made her feel uncomfortable. He did not box a friend out of the conversation. Rather, it was a group conversation. When it got loud, for privacy, E.R. and Ms. Mathewson went into a washroom to speak. They had been speaking together for about 20 minutes before going into the washroom.

[77] When they left the washroom, his friend Ryan said that the others had gone downstairs because there had been a warning from the RAs about the party. They were trying to be quiet so as not to attract the attention of the RAs. If they did, they could receive fines from the RAs.

[78] E.R. then took the beer pong table from the first location of the party back to his room on the same floor as where the others were. That party had formed in a larger area with couch space.

[79] His friend Sarah Musial was sleeping in his room because she was feeling unwell. She woke up as they brought the table in.

[80] E.R. was then warned by another friend that the RAs were coming to where the new party was and that they needed to shut it down. He left to speak with others on another floor and came back in about 10 minutes. When he came back, he had to go past his bedroom to rejoin the group.

[81] As E.R. came back to the party, Ms. Mathewson was doing handsprings down the hall and stopped at his room. Sarah was just outside the door. All others were at the other end of the hall. As Ms. Mathewson came towards him, he stepped out of her way and pressed himself against the wall opposite his room. Sarah came to the door of his room.

[82] When Ms. Mathewson completed her handsprings, she came up to him and put her hand against the wall near his shoulder. She then grabbed her leg and put it to the left of his face and pressed against him. He was shocked and dumbfounded. He denied that he did the splits in return and denied that there was any conversation between them about sex.

[83] E.R. then went to speak with Sarah and asked her if she was OK. She said that she would go back to her own room, and they walked back through the common area to get to her room. Ms. Mathewson was dancing and smiling at him. All of the party participants were still there including her friends. He then joined her in dancing.

[84] With respect to Ms. Mathewson’s impairment, E.R. denied that she was as drunk as she said. He saw no sign of intoxication. She did not stumble and was able to do the back springs. He did not know what she was drinking in her bottle, but she did not bring anything else with her. He did not see her take any shots, play beer pong or take any drugs. Her speech was “OK”, and he understood what she was saying.

[85] In cross-examination, E.R. agreed that he could be wrong about Ms. Mathewson’s degree of impairment, because he did not know what she drank before or at the party nor did he know the effect that alcohol might have upon her.

[86] At that point, he had had the two “Cold Shots” about an hour to an hour-and-a-half earlier and had taken one more from his room when he returned the table. There was one left in the carton the next day. He drank nothing else that night. With respect to impairment, he thought that he was a four out of ten. He had no problem understanding or hearing and knew what was going on.

[87] They then heard that the RAs were coming. He was alarmed and they all realized they had to leave. E.R. suggested to Ms. Mathewson that they go to his room, and she walked behind him. When they went into the room, everyone else had scattered.

[88] They went into his room at about 11:00 or 11:30 p.m. E.R.’s roommate was away at work but was due to come back soon. There was no hesitation on her part to come into the room. She did not have her hand on the doorknob and there was no unwillingness to come in.

[89] At that time, it was not E.R.’s intention to have sex with Ms. Mathewson and he did not want to jeopardize the relationship that he hoped to have with her. He did not think this activity would jeopardize his relationship with her unless he did something that was uncomfortable to her. He was not concerned that they were moving too fast.

[90] When they closed the door, there were LED lights on in the room. He denied that there was any discussion of her phone, and he denied that he took it from her.

[91] They then kissed each other and “grew heated”. He walked two steps to his bed and sat down. She sat on top of him with her legs straddling him. He did not push her onto the bed.

[92] At his suggestion, she laid on her back. He unhooked her pants and then got up and took off his own pants. He tripped in that process, and she laughed. Ms. Mathewson then removed her own pants and underwear. She said nothing when he took off his pants.

[93] They then continued kissing and he put his fingers in her vagina. He then pulled out a condom, but she said, “My friends are waiting, I can't.” He then moved to the side of the bed to allow her to leave. She got up and stood by him but did not appear to want to leave. He suggested that they could still kiss, and she returned to sit on the bed, and they continued “making out”. When he said, “we can only kiss if you want”, she laid back down on the bed with her clothes off. They returned to the bed for about 5 minutes. At that time, she said nothing; not “no” or “stop”.

[94] E.R. then searched for the condom again and found it under the blanket and showed it to her. Again, she said “My friends are waiting”. He took that as indicating that she did not want to proceed, and he backed away to let her leave. Instead, she grabbed his shirt, started kissing him again and they continued as before. He then found the condom again and showed it to her. She picked up her left leg and wrapped it around him. He therefore opened the condom, stood up and put it on while she looked at him. They then had intercourse.

[95] While they were having intercourse, he said “Can we try this?” He asked her about a position to have sex based on her doing the splits in the hall. He asked because he did not want her to feel uncomfortable. He liked her and wanted to carry on with the relationship.

[96] Ms. Mathewson did not say anything in response but simply stretched her legs, doing the splits. At that point, he ejaculated. After that, they kissed for a minute but said nothing; she reciprocated his kisses. He then said that he had to go to the washroom. They did not say anything before he left for the washroom.

[97] When he got up, she started to put her clothes on, and he went to the washroom on another floor. He was gone for two minutes and when he returned, she had left. He assumed that she had gone to find her friends. There were others outside, but they had not seen her leave.

[98] E.R. denied that he proceeded without Ms. Mathewson’s consent. Throughout these events, he always believed that Ms. Mathewson was consenting. He denied that Ms. Mathewson said “no” or “stop”. Rather, both were enjoying what was going on.

[99] He then went to Sarah's door, knocked on it and she came to his room. He then told her all of what had occurred and described it as the “best sex of my life”. He told no one else of what occurred. He sent no messages to Ms. Mathewson that day.

[100] A friend of his then contacted him about going to a concert for a particular band in London the following day. E.R., his roommate, his roommate’s girlfriend and Sarah listened to the band’s music until about 2:30 a.m. and decided they would go to London. They then bought tickets online.

[101] He is certain that this was a Friday night because the following day, Saturday, he went to Western University with friends to attend that concert. After the party on Friday night, he had gone to bed at 3:30 a.m. and got up at 7:30 a.m. in order to drive to the concert. He arrived at the concert between 11:00 a.m. and noon. He and his friends then came back from London and arrived in Guelph at approximately 10:30 to 11:00 p.m.

[102] When they got back to Guelph, he realized that he had been removed from Ms. Mathewson’s Snapchat account, but he was still able to contact her by Instagram. With the help of Sarah, he messaged Ms. Mathewson. Sarah also helped him understand that Ms. Mathewson might not be interested in him.

[103] He was not aware that Ms. Mathewson had a boyfriend at the time and she did not tell him about a boyfriend.

[104] E.R. first became aware of the allegation when he was contacted by e-mail from the Guelph police in December of 2019. He responded by asking what it related to and was told that he would be told when he called. When he spoke with the officer, he was told that he could be brought in by force or he could come immediately. He was also told that he could come in that evening, and it would not take long. He thought that he was responding to some unknown investigation.

[105] E.R. spoke with friends and his sister about what to do. His sister recommended that he go in and cooperate with the police. He had been studying for 48 hours and had just finished one exam when he went to the police station. At the time, he was sleep deprived. He went to the police station with his friend, Noah, and Sarah.

[106] When he arrived, he was detained and taken to a room in the basement. Several officers were there; they took his jacket and most of his clothing and he was left in pants and a shirt. He had never been involved with the police before. His rights were read to him, and he was left in a cell for an hour to an hour-and-a-half. He tried to sleep but the police would “clatter the bars” on a regular basis.

[107] E.R. was in the cells for an hour and a half and trying to sleep. It was “freezing cold”, and he was terrified. When he spoke to duty counsel, he was told to say nothing. After he spoke with the duty counsel, he was taken to the interview room, and it was explained to him what he was charged with. He was torn because he was trying to be helpful like his sister told him to be, and yet not say anything as the duty counsel had told him. He therefore said “I don't remember” as a way of staying silent. Instead, he actually remembered everything that had happened with Ms. Mathewson.

[108] During the trial, E.R.’s counsel admitted that the statement, such as it was, was given voluntarily by E.R. after he had been given an opportunity to speak with duty counsel. The defence denied that there were any grounds to find the statement inadmissible but did submit that the statement should be given little weight in my analysis.

[109] E.R. did not feel that he had an opportunity to give his side of the story because of the duty counsel's advice and because the officer “made it feel a little hostile”. He was however able to choose whether to speak or not at the time. In any event, he did explain some things to the officer. He was not always truthful in what he said. E.R. agreed that his answers to the officer were vague and so, to that extent, he was misleading the officer.

[110] E.R. next saw Ms. Mathewson in residence about two months later. He denied that he stared at her. He saw her and Mr. Stengal together two months later; twice at the residence and once in the gym. When he saw them, he went in the opposite direction to avoid any problems.

Evidence of Sarah Musial

[111] Ms. Musial is 22 years of age and resides in Guelph. She is studying towards a master’s degree in neuroscience at the University of Guelph. She started at the university in 2018. She met E.R. in the first week and lived in the South residence.

[112] She remembers the party in issue. It was in the common room with several other people. At one point, Ms. Mathewson did some gymnastics and did the splits against E.R. in the common room. Ms. Musial was standing a few feet away from them. She does not remember E.R. saying anything when Ms. Mathewson did that. No one else did any gymnastics at the party.

[113] She does not remember how the party ended and has no other memory of Ms. Mathewson at the party.

[114] She remembers that E.R. and Ms. Mathewson were at the party because she was jealous of Ms. Mathewson. Ms. Musial “had feelings for” E.R. but he and Ms. Mathewson were close and appeared to be getting along very well. Although she was jealous of Ms. Mathewson, Ms. Musial and E.R. remained best friends throughout their undergraduate years.

[115] After the party, E.R. described to her the sex that he had with Ms. Mathewson including telling her about how Ms. Mathewson had done the splits during intercourse. This was difficult for her to hear since she had feelings for E.R. He told her that he wished to pursue his relationship with Ms. Mathewson.

[116] She slept in E.R.’s bedroom that night (along with E.R., his roommate and his roommate’s girlfriend). The next day the four of them went to attend Western's Homecoming. They got to the concert in the morning and came home from London later that day.

[117] She first heard of the allegations two or three days later. She helped E.R. to respond to Ms. Mathewson’s messages on Instagram. E.R. appeared upset and stressed about what he had read from Ms. Mathewson because he appeared to have feelings for Ms. Mathewson. E.R. came to Ms. Musial for support; he wanted to talk because he was confused, crying and “dumbfounded” about Ms. Mathewson’s messages. He did not know how to approach the situation and answer Ms. Mathewson. Ms. Musial therefore provided advice to him. In fact, she typed the responses.

Evidence of Ruth Maris

[118] Ms. Maris is 22 years of age and lives in Brockville. She is a veterinary assistant. She started in Guelph in September of 2018 and studied animal biology. She lived in the South residence. She met E.R. on the first day of orientation in September of 2018.

[119] She remembers the party in the common room as being on the night of September 28th. She knows that it was a Friday because the next day they went to Western Homecoming.

[120] She sat by herself and spoke to people throughout the event. She was in the lower common room doing an assignment on her computer. She was not drinking but “hung out” with the other students while doing her schoolwork. She sat on the couch at the party from approximately 10:00 p.m. to midnight. There were some students from Mills residence along with students from South.

[121] E.R. was being social and had a couple of drinks. He did not appear to be intoxicated. He spent his time between the common room and elsewhere in the residence.

[122] Ms. Maris had been in E.R.'s room because her boyfriend was E.R.'s roommate. Her boyfriend was not there that evening but was away working. At the time, Ms. Musial was sleeping in E.R.’s room. Ms. Maris went in to check on Ms. Musial from time to time.

[123] She did not speak with Ms. Mathewson but did see her dancing with E.R. Ms. Mathewson also did the splits and cartwheels. She put her leg on top of E.R. in the common room. She saw nothing else between the two of them.

[124] The party ended when Ms. Maris told E.R. that the RAs were coming back. The party cleared out and she went to a friend’s room. At the end of the evening, she went back to E.R. and her boyfriend's room for a “sleepover”.

[125] The four of them planned to go to Western’s Homecoming the next morning. They left early to attend the concert and “hung out” for the day. They came back from London at approximately 8 or 9:00 p.m.

[126] She became aware of the allegation in December of 2019.

Evidence of David Brett

[127] Mr. Brett is 22 years of age and lives in Mississauga. He is now a part time student at Guelph. In September of 2018, he started at the University of Guelph and was living in South residence. He met E.R. at that residence.

[128] He met Ms. Mathewson on the first week of school when she approached his group at a concert.

[129] He remembers the party. He does not remember how many people were there. There was music, and a beer pong table had been set up. There was mingling, talking and foot races down the hallway.

[130] He signed Ms. Mathewson into the building with her friends along with E.R. He remembers Ms. Mathewson because when he met her at the party, she asked about why he had left her in the crowd at the earlier concert.

[131] He saw her participating in the foot races. He saw her do gymnastic maneuvers including splits and a cartwheel. He was impressed with that but nothing else about her stood out.

Analysis

What is Not a Factor

[132] There is some evidence that does not form part of my analysis.

1. Delay in Disclosure

[133] The fact that Ms. Mathewson did not go to the police until more than a year later has no weight in my deliberations. The defence submits that I should take that delay into consideration. More than 20 years ago, the Supreme Court of Canada said in R. v. D.D., 2000 SCC 43, at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

2. Electronic Records

[134] There was a lot of evidence about electronic messages sent between Ms. Mathewson and E.R. after these events. Before the messages were entered into evidence, the parties agreed that the necessary defence application pursuant to ss. 278.92 through 278.94 of the Criminal Code had not been brought. With that, the Crown took the position that it would not introduce those records into evidence. Accordingly, the records of those messages did not come into evidence. However, the contents of many of those messages were discussed – some in detail.

[135] Both counsel and I failed to consider that the contents of those messages were also inadmissible without the appropriate pre-trial application. R. v. J.J., 2022 SCC 28, at paras. 76-81, confirmed that the procedure established by ss. 278.92-278.94, “captures the content of the record that is referenced by the accused during the trial, even if the record is not formally entered as an exhibit.” Further, the Crown did not attempt to elicit evidence that Ms. Mathewson expressly waived those provisions. (Criminal Code, s. 278.2(2))

[136] When I belatedly raised this issue in argument, the Crown conceded that the contents of the messages were inadmissible. The defence argued otherwise but I am not persuaded that I can ignore the plain meaning of the Supreme Court’s ruling. It may be that, upon a proper record in a pre-trial motion, the messages may have been admissible, but without such an application, the records and their contents are inadmissible for the defence. The Crown took the position that he was not relying on the messages as part of the prosecution case. Accordingly, I have disabused myself of that evidence and have not summarized it above.

3. Motive to Fabricate

[137] The defence submits that Ms. Mathewson had a motive to falsely accuse E.R. of this sexual assault to avoid difficulties in her relationship with Mr. Stengal. I reject that submission. Ms. Mathewson denied such a relationship; I have no evidence otherwise and find there was no such relationship at the relevant time. Further, even if the relationship were in place at the time, Mr. Stengal and Ms. Mathewson were still in that relationship more than a year later when the charge was laid. It seems unlikely to have played a role by then. By the time of trial, the couple had separated. That motive, if it were in play at the time of the allegation and charge, was not likely to be in existence by the time of trial. In all of those circumstances, I can find no motive one way or the other. I also note that the lack of an apparent motive to lie is not a factor in assessing the credibility of a witness.

4. Prior Consistent Statements

[138] E.R.’s description to Ms. Musial of what occurred with Ms. Mathewson cannot be used to support his evidence. Repetition does not make anything more or less truthful. However, his demeanour after this event does add credence to his feelings toward Ms. Mathewson and is consistent with the rest of his evidence.

E.R.’s Evidence

[139] When I consider E.R.’s evidence, I find that there is no reason to reject it. It is compelling, logical and consistent except for one instance that I will discuss below. Even if I could not accept his evidence in its entirety, I am satisfied that it raises a reasonable doubt about what occurred in his room on the night in question.

[140] E.R. testified to a very detailed history of what occurred over the two days in issue. Of significance, he was cross-examined in detail over two days of trial without any discrepancies in that history. He was not “tripped up” in those details. Here, E.R.’s logical and consistent evidence is compelling. Internal consistency in testimony is a strong factor in assessing credibility.

[141] These events occurred more than four years ago and more than a year before the charge was laid. In most cases, such a detailed recitation would be unlikely. However, in this case, I find E.R.’s ability to recollect what occurred to be believable. He was not seriously impaired at the time. I am persuaded that the party, including Ms. Mathewson’s gymnastic maneuvers, his infatuation with Ms. Mathewson in the first week of school and the trip to Western, combined in one significant 24-hour period, were likely an unforgettable memory.

[142] E.R.’s evidence was corroborated by other defence evidence. The Crown is not required to lead evidence in corroboration of the complainant’s evidence, and I cannot find any deficiencies in the Crown case because there was no corroborative evidence. However, external corroboration of any witness’ evidence will assist in the determination of credibility and reliability. Here, the defence witnesses corroborated important aspects of his evidence.

[143] I acknowledge that the defence witnesses were, or are, friends of E.R. However, they were cross-examined without disclosing any reason to reject their evidence. Simply because they are friends does not present a reason to reject their evidence. I accept their evidence.

[144] While Ms. Mathewson denied that she did the splits in the hall and was certain that E.R. did, the defence evidence shows that she is not correct in that recollection.

[145] Ms. Mathewson was clear in her evidence-in-chief that she ran into E.R.’s room to retrieve her phone. Only in cross-examination did she resile from that evidence. On the defence evidence, I accept that the party broke up and Ms. Mathewson went to E.R.’s room in order to avoid the RAs and not related to any luring by E.R. through the use of Ms. Mathewson’s phone

[146] I agree with the Crown that the issue here is what occurred in E.R.’s room and not what happened in the hall. However, in assessing all of the evidence, the reliability of Ms. Mathewson’s evidence is harmed by these findings.

[147] Ms. Musial’s evidence of E.R.’s interest in Ms. Mathewson was poignant. Given Ms. Musial’s interest in E.R., her evidence of his expressions of happiness about Ms. Mathewson was entirely credible. And that evidence is contrary to the Crown’s theory of a brutal rape of Ms. Mathewson.

[148] Obviously, E.R. lied to the police when he gave his statement. Such a significant inconsistency can destroy a witness’ credibility. However, I do not find that to be the result in this case. As I have set out above, E.R.’s recollection is corroborated by other witnesses. His detailed recollection has not been shown to have deficiencies. His reasons for not answering the officer’s questions are credible. There is no Crown evidence to reject E.R.’s evidence as to how he was treated by Guelph police. If that is how the police conduct themselves in similar circumstances, the statements they obtain are not likely to ever be reliable even if admissible.

[149] Demeanour in the witness stand is a very dangerous basis on which to determine credibility. Individuals will differ in how they respond to being in a witness box. Some witnesses are good actors. Recently, in R. v. A.Y., 2022 ONCA 864, our Court of Appeal has confirmed that assessing credibility is not a science. Trial judges are “called upon to explain the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” That process “does not easily lend itself to precise and complete verbalization.” Having watched E.R. for two days, his responses, body language and tone of voice were all consistent with telling the truth. He was responsive to all questions put to him in cross-examination. He was not evasive in his answers. There was certainly nothing in his demeanour or manner of answering questions to suggest that I should reject his evidence.

Ms. Mathewson’s Evidence

[150] It is important to distinguish between credibility and reliability. Credibility has to do with whether a witness is telling the truth. I have found that the defence witnesses are credible and have told me the truth.

[151] Reliability has to do with whether I can rely on what the witness says even if they firmly believe what they say to be the truth. Credible witnesses can give unreliable evidence.

[152] From her evidence, I can accept that Ms. Mathewson now believes that she said “no” and “stop”. I have no reason to reject that part of her evidence. However, on all of the evidence, I cannot find that evidence to be reliable.

[153] In chief, Ms. Mathewson was clear that she entered E.R.’s room to obtain her phone. There was no qualification of that memory. However, only in cross-examination did she agree that her memory on that point could be wrong. That difference affects the reliability of the rest of her evidence.

[154] Of significance is the fact that Ms. Mathewson was emphatic in chief about how she came to be in the room – E.R. came into possession of her phone and lured her into his room. That is what she told her boyfriend weeks after the event. However, in cross-examination she quickly agreed that it could have been because of the RAs. The change in reason, without explanation, is a concern.

[155] As set out above, I accept the defence evidence and find that Ms. Mathewson is incorrect about the theft of the phone and the gymnastic maneuvers in the hall. No one heard E.R. say anything about agility or sex. That recollection by Ms. Mathewson is therefore in error.

[156] I do not accept Ms. Mathewson’s recollection of her state of impairment. On her own evidence, she was able to do ten backflips down the hall. She did the backflips in such a fashion that others were impressed by her skill. She denied that she stumbled at any relevant time. That is not consistent with one who is a “9 out of 10” for impairment. Instead, I find that she had little to drink, at least at the party itself. I find that she was not so drunk as to negate an ability to consent to what occurred.

[157] Ms. Mathewson is emphatic that she said “no” and “stop” but that is all that she is emphatic about. She has acknowledged that she “did not understand” what occurred and tried to “piece together” what had happened with the assistance of friends who were not there. On that basis, I cannot rely on her memories of what occurred where they conflict with other evidence that I do accept.

[158] In the result, where the evidence of Ms. Mathewson conflicts with that of E.R., I accept his evidence.

Consent

[159] The Crown submits that even if I accept the defence evidence, it does not present a defense to the charge. That submission requires me to consider the issues surrounding “consent” in a prosecution for sexual assault.

[160] In R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 87-91:

Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that the complainant in her mind wanted the sexual touching to take place”. Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple. At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established.

For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused”. Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”.

This Court has consistently referred to the relevant defence as being premised on an “honest but mistaken belief in consent”. However, this Court’s jurisprudence is clear that in order to make out the relevant defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct. As L’Heureux-Dubé J. stated in Park, “[a]s a practical matter, therefore, the principal considerations that are relevant to this defence are (1) the complainant’s actual communicative behaviour, and (2) the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent. Everything else is ancillary.” [Citations removed; emphasis in original]

[161] In R. v. Norris, 2020 ONCA 847, at paras. 65-66, 76-84:

Whether the complainant subjectively consented must be resolved by taking into account both the complainant’s testimony about her state of mind at the time of the events, and other evidence that may inform the question of what was on her mind at the time. That evidence may include the complainant’s words and actions in and around and at the time of the incident in question.

Accordingly, it is always open to the accused to attempt to raise a reasonable doubt about a complainant’s direct evidence regarding her or his state of mind at the time of the incident, by pointing to the complainant’s “words and actions, before and during the incident.” Ultimately, though, whether the complainant subjectively consented to the sexual activity in question is a matter of credibility to be determined by the trial judge in light of all the evidence.

The mens rea for sexual assault is made out in circumstances where the accused knows that the complainant is not consenting to the sexual act in question or is wilfully blind or reckless to the absence of consent.

In some situations, an accused will deny the mens rea of sexual assault by suggesting that he or she had a mistaken belief that the complainant communicated, by words or conduct, her or his agreement to engage in the sexual activity in question. This defence is sometimes referred to as a mistake of fact defence.

. . . there is no doctrine of implied consent. One is not deemed to have consented because one does not protest or resist. Any such thinking would reflect a mistake of law and not a mistake of fact.

As well, the defence is statutorily limited by virtue of s. 273.2 of the Criminal Code. Among other things, the statute removes the defence in circumstances where the accused’s belief arises from “recklessness or wilful blindness.” It also removes the defence where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

Reasonable steps have both objective and subjective components – they must be objectively reasonable steps and the reasonableness of them are assessed according to the circumstances known to the accused at the time. As Moldaver J. put it in Barton, the “reasonable steps requirement rejects the outmoded idea that women can be taken to be consenting unless they say ‘no’.” [Citations removed]

[162] I have already found that Ms. Mathewson was not so drunk that she did not have capacity to consent. Since I accept E.R.’s evidence, I also find that Ms. Mathewson consented to have intercourse with E.R. on the basis of her affirmative conduct when in the room together. She responded to E.R.’s kisses. She took off her own clothes. When Ms. Mathewson demurred about proceeding, E.R. allowed her to leave. She stood up to leave but came back, grabbed his shirt, and put her leg around him. When she returned to the bed, she was shown the condom and participated afterwards. She raised her leg in response to his request.

[163] On that evidence, I find that E.R.’s belief in Ms. Mathewson’s communicated consent prior to having intercourse was honest and reasonable. His belief was not reckless or wilfully blind.

Decision

[164] For those reasons, E.R. is found not guilty.

“Justice Lemon” Justice G.D. Lemon Released: January 9, 2023