R. v. H.W., 2023 ONSC 2244

COURT FILE NO.: CR-21-40000600 DATE: 20230413

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – H.W.

Counsel: J. Witkin. and M. Boissonneault, counsel for the Crown J. Lockyer, and J. Zita, counsel for H.W

HEARD: January 30, 31, February 1, 2, 3 2023

Pursuant to s. 486.4(1) of the Criminal Code, no information that could identify the complainant in this case shall be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

H. McArthur J.:

Introduction

[1] H.W. [i] is facing one count of sexual assault contrary to s. 271 of the Criminal Code, in relation to the complainant, S.C.

[2] H.W. and S.C. both attended the same wedding reception. They did not know each other. The Crown alleges that towards the end of the evening, H.W. pulled S.C. into a washroom stall and sexually assaulted her.

[3] Both S.C. and H.W. testified. While both agreed that something sexual happened, they gave very different accounts of what happened in that washroom stall.

[4] The ultimate issue in this case is whether the prosecution has proven each essential element of the offence of sexual assault beyond a reasonable doubt. While S.C. had been drinking that evening, capacity to consent is not an issue in this case. S.C. testified that while she was “tipsy”, she was not drunk. The evidence of other witnesses and surveillance video evidence supports that S.C. was not intoxicated to the extent that capacity is in issue. Instead, the key issue in this case is whether the prosecution has proven beyond a reasonable doubt that S.C. did not consent to the sexual activity that took place.

[5] It is imperative to keep in mind that a criminal trial is not a credibility contest, in which I pick the version of events I prefer. Nor is it a matter of which account I think is more likely. At all times, the Crown’s job to establish H.W.’s guilt beyond a reasonable doubt. Again, my task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. If after a careful consideration of all the evidence, I am unsure if H.W. committed the offence, then I must find him not guilty.

[6] The reliability and credibility of the testimony of S.C. and H.W. is central to the analysis in this case. I must also assess the testimony of the other witnesses to determine to what extent their evidence assists the prosecution in meeting the high burden required to ground a conviction.

[7] For the reasons set out below, I have concluded that the prosecution has failed to establish beyond a reasonable doubt that S.C. did not consent to the sexual activity that occurred in that washroom stall. I want to be clear that this is not a positive finding that S.C. did consent. There is a difference between a finding of a lack of consent and a finding that there is a reasonable doubt about consent. The difference flows from the fact that the burden of proof always rests on the prosecution. I have determined that the prosecution has failed to establish, to the requisite degree, lack of consent, an essential element of the offence. As a result, I find H.W. not guilty.

Brief Overview of the Evidence

[8] I do not intend to set out the evidence in detail at the outset and will address it more fully in my analysis.

[9] But in brief, S.C. and H.W. both attended the wedding of a relative. They did not know each other and were not related.

[10] After the wedding, they both attended the reception, which was held at a venue in Toronto. There was dinner, dancing, and drinking. S.C. had wine and some rye and ginger. While feeling the effects of the alcohol, she said she was not drunk, just tipsy. H.W. drank beer and whisky. He also said he was feeling the effects of the alcohol but was not drunk.

[11] Another wedding guest, A.S., described both S.C. and H.W. as being intoxicated. While she initially said that both S.C. and H.W. were equally “smashed,” in re-examination, she said that H.W. was more “smashed”. As I commented to counsel during final submissions, using words such as smashed may be unhelpful if not accompanied by evidence as to what the word means in the witness’s mind. What may be tipsy to a 20-something, might be described differently by a more mature individual. Similarly, the word drunk can also be unhelpful. Rather than a conclusionary opinion, evidence as to what the opinion is based on is far more helpful to a fact finder. Was the person stumbling? Slurring? Why did the witness form the opinion that they did? As I look at A.S.’s evidence in its entirely, her evidence supports that both S.C. and H.W. were intoxicated to approximately the same extent, although H.W. may have been somewhat more under the influence. But on the totality of the evidence, neither H.W. nor S.C. were acting inappropriately or unusually. They were simply dancing, socializing, and having a good time.

[12] At some time after 11:49 p.m., S.C. went to use the washroom. She was able to place the time because she recalled that she went to the washroom shortly after she took a photo (with a timestamp) of the bride and groom sitting on a couch, looking spent from the day, but happy.

[13] The washroom area was on the same floor where the dinner and dancing were taking place. The washrooms, which were gender neutral, were in a hallway towards the back of the venue, across from the couches where the bride and groom had been sitting when S.C. snapped the photo of them.

[14] There were six stalls in total, three on each side. However, the first stall on the right was out of order. As a result, there were only five available stalls. The stalls were self-contained units. Each stall had a toilet, a sink, and a mirror. The walls of each stall went from floor to ceiling.

[15] S.C. testified that all the stalls were occupied, and she waited for one to open up. After about a minute, the door on the first stall to the right opened, and a hand reached out and grabbed her by her right “limb” and pulled her into the stall. There is no dispute that since the first stall on the right was out of order, S.C. is mistaken as to which washroom stall she is describing. It is accepted by both sides that the incident occurred in the second bathroom on the right.

[16] In any event, S.C. testified that after she was pulled into the stall, she saw H.W. in there. He was much taller than her. She was confused and introduced herself and asked who he was. He did not answer, and instead turned her around, pulled up her dress, pulled down her pantyhose, pushed the thong of her underwear out of the way, and put his penis in her vagina. She kept asking questions, such as if they were related, how she got there and whether he was married. He rarely answered except to say that they were not related and that he was not married. After a while, he forced her to her knees and put his penis in her mouth, making her perform fellatio. He then pulled her back up, turned her around again, and had forced anal intercourse with her.

[17] S.C. said that while H.W. never verbally threatened her, he was much taller and what he was doing was inherently threatening. She was afraid, and thus did not protest or say “no” when he assaulted her. He also “pushed” her around throughout the entire incident.

[18] Beyond those details, S.C. was unable to describe what else happened in the washroom stall. She testified that her memory was like a “blackout” where the lights “flash on” for a moment. She explained that she started “disassociating” as she was in a state of shock and confusion. She asked questions to try to understand what was going on. But the stress and anxiety associated with the event interfered with her ability to process what was happening in the moment, and her ability to remember much of the attack.

[19] S.C. said that when H.W. was anally raping her, he suddenly stopped, pulled his pants up and left. As he did, he turned and looked at her with a “vacant” look in his eyes. She found that frightening.

[20] She does not remember how long she remained in the stall after H.W. left. However, this was the second trial, as the Court of Appeal overturned the earlier verdict of the jury and sent the matter back to trial. She knows from surveillance footage put to her at the first trial that she left about six minutes after H.W. did.

[21] S.C. said that when she emerged from the stall, she was shocked to see that the wedding was over. She approached staff who were behind or at the bar area. She told them that she had just had sex in the bathroom. One of the staff members laughingly congratulated her. But she then began to explain that she did not know the man, and said to one of the staff members, “is that rape?” He appeared surprised. She then turned to another staff member and asked again, “is that rape?” She kept asking the staff if she had been raped. They appeared shocked. They then told her not to worry, and they would call someone to take care of her.

[22] Someone from the venue called the groom’s parents, the Ws., who drove back to the venue to get her. S.C. said she got into the backseat of the car and was crying. She told them what had happened. While S.C. did not want to report the rape at this time, the groom’s parents told her she should go to the police station, and she trusted that they were making the right choices for her.

[23] The Ws. took her to the police station, and then S.C. went to the hospital to have a sexual assault kit exam. After that, she reattended the station and gave her first statement. In cross-examination, counsel put to S.C. that the reason the Ws. had to return was because they had her purse with her house keys. She rejected that suggestion. However, J.W. testified that at the end of the night, a staff member gave him a purse that had not been claimed. When he had almost reached home, a staff member called him to say that S.C. was at the venue and needed her purse. When J.W. asked if it could wait until the morning, the staff member said no, as S.C.’s keys were in her purse, and she needed them. As a result, J.W. turned the car around and went back to the venue. J.W. testified that the staff member who called him did not say anything about S.C. claiming she had been sexually assaulted.

[24] H.W. testified that he had been drinking that night but was not heavily intoxicated. His sister testified that she knew her brother well and did not consider him to be drunk. H.W. said that he danced much of the night. He was on his way to the washroom area, when he had a brief chat with S.C. They talked about the wedding, and how each of them was connected to the couple. After about 5 to 10 minutes, H.W. continued on his way to the washroom area, with S.C. following along. As they got to the hall in between the stalls, they began to kiss. S.C. then backed into one of the stalls, smiling at him as he followed her in. Once in the stall, they began to “make out”. She then got on her knees and undid his pants, which he took as a sign that she wanted to perform fellatio. He put his penis in her mouth. After a while, he backed away and she got up, turned around, put her hands on the counter, arched her back and turned her head and smiled at him. He thought she was communicating that she wanted to have sexual intercourse, and he pulled down her panty hose and underwear and had vaginal intercourse. They did not have anal sex. At some point, he heard his sister knock on the bathroom door and call out his name. H.W.’s sister confirms that she looked for him in the washroom at the end of the night and knocked on the door.

[25] Because of his sister, H.W. began to realize that his family was looking for him. He stopped the sexual activity, got dressed, and left the stall. Then he saw that the wedding was over and was worried that his family was waiting for him. He jogged out of the venue, and ultimately found his family. He then was driven to a family member’s home where he spent the night.

Brief Overview of Law on Sexual Assault

[26] Under s. 273.1(1) of the Criminal Code, consent means "the voluntary agreement of the complainant to engage in the sexual activity in question." It means the conscious agreement of the complainant to "every sexual act in a particular encounter". Section 273.1(2) of the Criminal Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code.

[27] As I noted above, the key issue in this case is whether the Crown has established beyond a reasonable doubt that S.C. did not consent to the sexual activity. There is no dispute that S.C. had the capacity to consent.

[28] Further, there is no dispute between the parties that the defence of honest but mistaken belief does not arise on the evidence. In the reasons on appeal in this matter, the court clarified and explained how to approach sexual assault cases where honest but mistaken belief in consent is not advanced as a defence; R. v. H.W., 2022 ONCA 15.

[29] At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26; R. v. G.F., 2021 SCC 20, at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the defendant thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred.

[30] The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the prosecution has established beyond a reasonable doubt that the complainant did not actually, subjectively, consent within the meaning of the Criminal Code to that sexual touching.

[31] It is then that the focus shifts to the defendant’s mental state, the question being whether the defendant knew of, or was wilfully blind or reckless as to, that lack of consent. But as cautioned in H.W., in a case such as this one, where the defence of honest but mistaken belief in communicated consent is unavailable, evidence relating to the defendant’s belief in consent is not to be considered, as to do so could allow the defence to re-enter through the back door.

[32] Once the prosecution has established beyond a reasonable doubt that the complainant did not consent to the sexual activity in question, while it is still necessary for the prosecution to prove that the defendant had the requisite mens rea, it will usually not be difficult to establish that the defendant knew that the complainant was not consenting or was reckless or wilfully blind to the absence of consent.

Analysis

[33] The starting point of my analysis is that H.W. is presumed to be innocent, unless and until the prosecution has proven the offence against him beyond a reasonable doubt. It is not enough for me to believe that H.W. is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[34] It is also vital to keep in mind that the analysis must be based on evidence, not speculation, or conjecture. It is improper to rely on stereotypical thinking to cross an evidentiary gap: R. v. J.C., 2021 ONCA 131. In the present case, both the prosecution and defence relied on numerous stereotypes in their questions and submissions. I raised my concerns about their reliance on such reasoning in my dialogue with counsel at the time. Given that I will not rely on any such thinking in my analysis, I do not see the utility in cataloguing and addressing the arguments advanced that were based on stereotypes. Suffice to say, I reject any and all submissions grounded in myths or stereotypes raised by either side.

[35] I turn now to my assessment of the evidence before me. I will first consider H.W.’s testimony.

Assessment of H.W.’s Testimony

[36] In terms of his demeanour, H.W. came across quite well. He presented as earnest, gracious, and unfailingly polite. As his lawyer argued, he seemed to be a somewhat shy young man, one who grew up in a small northern community, with a close and loving family.

[37] Defence counsel argued that it is highly implausible that such a young man would suddenly turn into the vicious rapist depicted by S.C. I have two difficulties with this submission. First, while it would seem to be out of character for H.W. to act in such a violent and reprehensible manner, even on his own evidence, he acted in an extraordinary way. By his own account, he had unprotected sex with a random stranger in the washroom at a family wedding. Both his account of a ‘quicky’ and S.C.’s account of a rape are difficult to reconcile with the way that H.W. presented at trial.

[38] Second, the law is clear that the analysis should not place undue emphasis on demeanour: see R. v. S. (N.), 2012 SCC 72, at paras. 18 and 26; Law Society of Upper Canada v. Neinstein, 2010 ONCA 66, 2010 ONCA, at para. 66; R. v. Rhayel, 2015 ONCA 377, at para. 85; R. v. Hemsworth, 2016 ONCA 85, at para. 45; R. v. Ahmaddy, 2018 ONCA 496, at para. 6.; and R. v. A. (A.), 2015 ONCA 558, at para. 131. People can present quite differently when testifying than in other circumstances.

[39] Rather than focusing on demeanour, the assessment should consider inconsistencies within the evidence at trial, as well as inconsistencies between the evidence at trial, and previous statements to police or previous testimony: see for example R. v. Williams, 2018 ONCA 138, at para. 3; R. v. A.M., 2014 ONCA 769, at para. 12. And H.W. was inconsistent on several points.

[40] Some differences in his account did not cause me much concern. For example, H.W.’s position varied between his first trial and the trial before me as to which car he was in when he left the wedding reception. He explained that he had discussed this point with his sisters, and that had helped his memory.

[41] The inconsistency itself does not overly concern me. It is on a minor and peripheral point. Given that H.W. had been in several cars throughout the day, and given the passage of time, it is not surprising that he might not remember with whom he drove home. Somewhat more troubling is that he discussed the issue with his sisters. That said, it is important to keep in mind that H.W. was acquitted at his first trial and it was some time before he knew that he would be facing a second trial. There would be nothing improper with H.W. discussing his evidence with his family once the trial was over and before he knew that he would be facing a new trial.

[42] H.W. was also inconsistent about how much alcohol he had to drink that evening. But there was not a radical change in the amount he said he drank, and I find this to be a minor issue. The small difference in what he admitted drinking previously compared to the trial before me would not realistically impact on his level of drunkenness.

[43] H.W. also added details. For example, he said that when he and S.C. were kissing, she was feeling his shirt and back. But he had never offered that detail before. However, he had previously said that he and S.C. had “made out”. He was never asked specifically what he meant by that phrase until the trial before me. It is not uncommon for additional details to emerge in response to specific questions. Moreover, in my view, his more detailed description is consistent with his earlier evidence that the two made out.

[44] However, there are other inconsistencies and added details that I find more troubling. For example, at the trial before me, he said that S.C. undid his pants. But, at his first trial, he said he was the one who undid his pants. Defence counsel argued that because H.W. had this matter hanging over his head for six years, that it is to be expected that there would be some variation in his memory. While that is true, this is a variation that goes right to the issue of consent. And while it may well be that the difference in his recollection could be attributed to the passage of time, at a minimum it causes concern about H.W.’s reliability on a key issue.

[45] Similarly, he told the police that he locked the door, whereas at the trial before me he testified that S.C. locked the door. He also told the police that he went into the stall first, but at the trial before me said that she backed into the stall first. Again, these are points that could inform the issue of consent. These variations in his memory are concerning.

[46] H.W. also said for the first time at trial before me that when S.C. turned around, put her hand on the counter and looked at him, that she also arched her back. While defence counsel argues this is a minor point, it is one that also goes to H.W.’s testimony as to why he believed that S.C. consented to vaginal intercourse. Thus, it is neither peripheral nor minor.

[47] H.W.’s evidence also changed as to whether he spoke with S.C. by the stall, how long he spoke with her before going to the bathroom, and what they spoke about. At a minimum, these changes cause me to question the reliability of his account.

[48] There were other issues with H.W.’s evidence, but I do not intend to outline them. Instead, I simply say that when I look at the problems I have outlined with his evidence, I find I am unable to believe his evidence. Nor does his evidence leave me with a reasonable doubt.

[49] I turn next to my assessment of S.C.’s testimony.

Assessment of S.C.’s Testimony

[50] In general, I thought that S.C. came across quite well. She presented as earnest, intelligent, and articulate. She gave her evidence in a careful and thoughtful manner. Her answers were generally responsive to the questions asked.

[51] There were times when her evidence seemed somewhat rehearsed. She repeated the same answer several times, almost as if by rote. However, I keep in mind that this was a second trial, and the third time that S.C. testified about this matter. She also gave two statements. Having to describe the incident so many times, it is not surprising that her evidence seemed practiced.

[52] Moreover, I note that the responses she repeated involved how the stressful and chaotic attack she endured led her to disassociate and have little memory of the event. I fully accept that trauma and shock can impact on memory. Given that, I cannot accept defence counsel’s submission that her lack of memory is convenient and feigned. Her lack of memory does, however, make it somewhat difficult to assess the reliability of S.C.’s evidence. This does not mean that her memory is wrong. But it poses challenges when seeking to understand her evidence.

[53] There were times when S.C. seemed truly emotional and struggled to maintain her composure. The Crown highlights S.C.’s emotion, and asks, since the process is clearly so difficult for her, why she would put herself through not just one but two trials, if her story were not true? But as the court explained in R. v. J.C., 2021 ONCA 131, at para. 88, it is dangerous for a trial judge to find relevance in the fact that a complainant has exposed herself to the “unpleasant rigours” of a criminal trial. This type of reasoning cannot be reconciled with the presumption of innocence.

[54] The Crown also argues that S.C.’s emotional demeanour supports her credibility. And S.C. did seem to evince true emotion. Her testimony about the disgust she felt while being forced to perform fellatio as her head was near the toilet was particularly compelling and poignant. However, as I have already noted, reliance on demeanour must be approached cautiously. People can react in all sorts of ways for all sorts of reasons. Some people are more emotional than others. Certain questions may be more upsetting for some witnesses than for others.

[55] Defence counsel argues that S.C.’s demeanour on the stand is inconsistent with her account of events. Here, she came across as strong, feisty, and unwilling to back down when challenged. Defence counsel asserts that it is impossible to reconcile how S.C. presented on the stand with how she claimed she was in that washroom stall. She painted herself as naïve and timid, someone who did not even raise a fuss when pulled into the stall at a time when she did not know what was about to occur. And someone who did not protest as she was sexually assaulted vaginally, orally, and anally.

[56] But S.C. said she felt threatened by the much larger H.W. Fear can be paralyzing. Fear can be overwhelming. Fear can cause someone to act in ways that are entirely inconsistent with how they would act in a different context. Moreover, much time has passed since the incident. S.C. testified three times. It is not surprising that she would come across differently now than from how she said she did that night.

[57] Defence counsel also argued that S.C. came across as an advocate for her own cause, something that should lead me to view her evidence with suspicion. While I agree she did present as somewhat of an advocate, I see nothing wrong with how she testified. S.C. clearly felt that the original investigator did not hear what she was trying to say about her lack of consent. She wrote an email to their supervisor saying as much. H.W. was acquitted at his first trial. That in these circumstances S.C. would adamantly and doggedly try to get her perspective across is understandable.

[58] S.C. also said that H.W. continuously pushed her around the stall. Defence counsel asked, if S.C. was not fighting, why would H.W. push her around? But it is certainly possible that the force S.C. said H.W. used could have been for his own pleasure, not to enforce her compliance.

[59] Of somewhat more concern, is that while S.C. testified that she was pushed around by H.W. throughout the incident she did not have any injuries. S.C. explained that she was not injured because she did not fight H.W. But the stall was quite narrow, with a counter and sink. If S.C. was pushed around to the extent she said, it does seem somewhat odd that she did not have injuries. The Crown argued that S.C.’s weight at the time could account for why she was not bruised or hurt by the force she said H.W. used. But I have no evidence before me as to whether someone would be less likely to bruise or be hurt because of their body type. On the other hand, I do not have evidence as to how likely it would be that someone would bruise in such a context.

[60] S.C. also said that she discovered a small abrasion by her anus after her first police statement. She said that she reported that to a nurse. And she may well have. But while other records were tendered, no records were filed to show that she reported this injury to any medical providers. What is clear, is that while S.C. went back to give a further statement to the police after she said she discovered this injury, she failed to tell the police about this injury.

[61] Another issue that is somewhat troubling is that it seems that if H.W. had been pushing S.C. around continuously in such a small space, it would have caused noise. While I do not have evidence as to who else might have been using the remaining four washroom stalls while the incident unfolded, it seems reasonable to conclude that others would have been using the stalls during this time. S.C. said that all the stalls were in use when she first arrived in the hallway area. Further, it was a wedding where people were drinking. It is common in such events for the washrooms to be in regular use.

[62] S.C. also said that she was talking incessantly during the assault and that she screamed at H.W. at one point and that he yelled an answer back. That no one heard what was happening in the stall does seem somewhat strange.

[63] Some of what S.C. testified she was saying was also somewhat odd. For example, one of the few memories that she seemed clear about was that she had been pulled into the stall. Yet she said that she asked several times how she came to be in the stall. She also said that she asked H.W. if he was married. I agree with defence counsel that this is an odd question, and one that seems more consistent with a consensual encounter than an assault. Why would she care if her assailant was married? Of further concern, S.C. provided inconsistent and varying explanations for why she asked H.W. if he was married.

[64] S.C.’s memory as to why the Ws. came to pick her up from the venue also varied from J.W.’s memory. He was clear that at the end of the night, he had been given an unclaimed purse. When someone from the venue called and said that he had to come back with the purse, he asked if he could return the purse in the morning. But he was told “no,” as S.C.’s keys were in the bag, and she needed her keys to get into her home. The staff member who called him said nothing about S.C. claiming that she had been sexually assaulted. It seems odd that the person who called the Ws. refrained from mentioning that S.C. had been assaulted. On the other hand, S.C.’s evidence is that she was asking the staff members if they thought that what happened was rape. In the circumstances, they may have wanted to leave what seemed to be a delicate situation to someone else to deal with. Unfortunately, the police never interviewed any of the staff who spoke with S.C. after the incident, or the staff member who called the Ws. Thus, we do not know why nothing was said to the Ws. about S.C.’s claim.

[65] Given that J.W. was not intoxicated and had a good reason to recall what was a highly unusual situation, I accept his evidence that the reason he returned was because S.C. needed her keys. It is difficult to understand why S.C. cannot recall this detail. Defence counsel argued that she is not credible on this point. He points out that S.C. was the only member of that side of the family who had been invited, and that S.C. told police she was determined to go and meet the rest of the family and make a good impression. He argues that she made up the allegation of a sexual assault because she was mortified that the groom’s parents had to come back after the wedding because she had lost track of time and her belongings when she had consensual sex with H.W. I note that this theory was never directly put to S.C. In fairness, it should have been squarely put to her. That said, it was implicit in the questions asked that this was the theory of the defence. And I have no doubt that S.C. would have vigorously denied the allegation.

[66] Again, it is unfortunate that the police failed to interview the staff members who dealt with S.C. If, as she said, she almost immediately began to ask them if she had been raped, that would have negatived any suggestion that S.C. made up the allegation because she was embarrassed at the situation in which she found herself - alone at the end of the wedding without her keys after engaging in impulsive consensual sex with H.W.

[67] It is also unfortunate, because we have video surveillance in which we can see the reactions of the staff as they speak with S.C. Contrary to S.C.’s recollection, she does not immediately speak with the staff, instead, she walks past the bar area and down the stairs that lead to the street. Video clips shows that she returns and is then speaking with staff and going through a purse or bag with them, as if looking for something. That would seem consistent with J.W.’s evidence that he had to return as he had her purse, which had her keys.

[68] Further, the staff at no point seem to react in the shocked or surprised way that S.C. said they did when she said asked if she had been raped. To be fair, it is a video without sound. Facial expressions were somewhat difficult to discern. But I have viewed the video evidence repeatedly, and the video depiction of events seems contrary to S.C.’s recollection. And I have an absence of evidence from the staff who dealt with her to explain what happened.

[69] When confronted with the fact that the video did not seem to support her position, S.C. countered that perhaps the interactions she recalled took place at a different part of the venue. But she said that she spoke to staff who were by or behind the bar. There is only one bar area. The interactions that S.C. had by the bar area are visually captured and do not seem to support her account. At the end of the day, the contradiction between what is depicted on the video, and S.C.’s testimony about what took place is somewhat concerning.

[70] I had other issues with S.C.’s evidence. But given the conclusion I have reached based on the matters I have already addressed, I will not detail them any further.

Assessment Based on the Evidence that I do Accept

[71] I do not believe H.W.’s account, nor does it leave me with a reasonable doubt. But when I consider the issues I have detailed with S.C.’s evidence, along with the video evidence, I have concerns. I am unsure what happened in that washroom stall. At the end of the day, I am unable to conclude that the prosecution has established beyond a reasonable doubt that S.C. did not consent to the sexual activity that took place.

[72] Again, as I said at the outset of my reasons, I am not making a positive finding that S.C. did consent. It may very well be that she did not. But based on the evidence that I do accept, I conclude that the prosecution has failed to establish S.C.’s lack of consent beyond a reasonable doubt.

Conclusion

[73] For the reasons set out above, I find H.W. not guilty.

Justice Heather McArthur

Released: April 13, 2023

[i] The prosecution submitted that it was unnecessary to use initials for H.W. and that his full name should be in the reasons. However, given the circumstances, which involved a family wedding, in my view using his name could reveal the identity of the complainant. Moreover, the Court of Appeal used initials when dealing with the Crown appeal on this matter. I intend to follow the lead of the appellate court and use initials rather than names.