IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The accused plead not guilty to an allegation of sexually assaulting S.G.  A trial was held and the court received evidence from S.G., L.A., Mariko Miller, and the accused.

[2]         S.G. testified she did not give her consent to being sexually touched by the accused.  The accused testified he believed S.G. was consenting to the sexual contact.  Specifically, the accused asserts there is a reasonable doubt on the issue of S.G. consenting and in the alternative, if she did not consent, then he honestly, but mistakenly, believed S.G. was consenting.

[3]         This Court must determine if the Crown has proved beyond a reasonable doubt that S.G. did not consent to the sexual contact and if the Crown is successful, then, is there some evidence establishing the accused honestly and reasonably believed that S.G. was consenting to the sexual contact?

[4]         At the time of the events, S.G. was 18 years old and in grade 12.  On Friday, June 13, 2015, she went with friends to watch a band at a local bar.  While travelling to the bar, S.G. and her friends shared some vodka.

[5]         When S.G. arrived at the bar she believes she had a beer.  When asked about her sobriety, S.G. recalled she did not feel completely out of control, that she was aware of what was going on, and from her perspective, she was not very drunk because she could handle a lot of alcohol.

[6]         The group watched the band and when the show was over, S.G. went to catch a bus home.  Not wanting to wait for a bus outside of the bar, S.G. decided to walk several blocks and catch a bus near Commercial Drive.

[7]         On the way to the bus stop, S.G. met a man who identified himself as Joe.  S.G. managed to borrow a cigarette from Joe and the two began talking.  During their conversation the subject of drugs came up and Joe offered S.G. some cocaine.

[8]         S.G. accepted Joe’s offer and they went behind a local business where S.G. snorted what she estimated to be less than half a gram of cocaine.  According to S.G., this was the first time she had used cocaine, and she did not feel that the cocaine had much impact on her.  In fact, she did not really notice it and she was of the opinion that it sobered her up.

[9]         Joe and S.G. considered entering a nearby bar; however, Joe told S.G that it was relatively empty and he suggested they go to an after-hours club.  With Joe taking the lead, they made their way to an after-hours club called “Club 333.”  According to S.G., Club 333 played music and sold beer.

[10]      Once inside the club, Joe purchased a beer for S.G. and the two sat at a table.  S.G. described the impact of the cocaine and alcohol as distorting her sense of time, but making it possible for her to have really focused conversations.

[11]      S.G. was pretty sure that she met the accused and a woman who identified herself as Tiger L. (later identified as L.A.) when they approached her.  

[12]      S.G. next recalls the accused, L.A. and herself being in a small bathroom.

[13]      S.G. had difficulty recalling the details of what happened in the bathroom; she recalls the accused using cocaine and she feels that L.A. may have been using cocaine as well.  As for herself, S.G. testified, “…I don’t remember myself doing other drugs in the bathroom.” 

[14]      S.G. does not recall if she and the accused had physical contact while in the bathroom.  She knows they were in the bathroom for a long period of time, because people started banging on the door.  Eventually, the door was forced open which caused an argument between the accused and others.  This argument attracted the attention of staff, who asked the accused to leave the club.

[15]      S.G., the accused, and L.A. left the club and S.G. noticed it was light outside.   She estimated it was between five and six in the morning.  The accused suggested to L.A. they go back to her place and “roll a joint.”  S.G. wanted to smoke some marihuana, as she felt this would help her sleep.  She also felt the taxi ride would bring her closer to her home.  As such, she agreed to go with the accused and L.A.  By this stage, S.G. felt the alcohol was out of her system and she was pretty sober.  She did feel a bit euphoric.

[16]      The group took a taxi to L.A.’s home.  Up until this point there had been no discussion regarding sexual intercourse; however, S.G. felt the accused was interested in her.  In this regard, S.G. noted the accused had been complimenting her throughout the evening.

[17]      When the group arrived at L.A.’s place, they sat in the front yard where L.A. started doing yoga and saying spiritual things.  The accused produced some cocaine and offered some to S.G., who is pretty sure she consumed a very small amount.

[18]      The accused then suggested they go inside the house; they then walked around to the back, up the stairs, and into an upper suite.  Once inside, L.A. showed S.G. around and offered to show her some of her paintings.  Shortly after arriving, S.G. went to use the bathroom and she returned to L.A.’s bedroom.

[19]      When S.G. entered the bedroom, L.A. did not have a shirt on and she was sitting on the bed with the accused.  S.G. went and sat in a chair that was in a corner opposite to the bed.  S.G. next recalls the accused suggesting that she join them on the bed.  S.G. does not recall the accused’s exact words, but described the tone as inviting, calm, not aggressive, and like someone calling a puppy dog.

[20]      S.G. went to the bed and sat beside the accused.  The accused started complimenting S.G., who did not respond to him and when he leaned in towards her, S.G. leaned back.  S.G. testified she was intimidated because the accused was a full grown man and she did not know what he was capable of.

[21]      The accused started touching S.G.’s legs and chest and he started pulling down her tank top strap.  S.G. started saying things such as she did not want to hook up, that she had a boyfriend and that she was having her period.  S.G. testified she never blatantly said no.  However, from S.G.’s perspective she was avoiding the topic.  

[22]      According to S.G., the accused responded to her comments by saying, “Well, I know you want it. You wouldn’t be here if you didn’t want it.”

[23]      At this stage, S.G. felt that she was in a tough situation.  She recalled a story told to her by a youth leader wherein it was suggested that resisting a sexual assault could result in being beaten or killed.  S.G. felt there were two possible ways out of her situation.  The first was to go along with things in which case she felt she would likely be unharmed.  The second option was to fight back.  It was S.G.’s perspective that there was too much uncertainty with the fighting option so she decided to go along with things.

[24]      The accused started removing S.G.’s pants and as a last resort S.G. said words to the effect of “I have my tampon in.”  It was S.G.’s hope that this would give her an opportunity to move to another room.  According to S.G., the accused responded by stating “No, I’ve already dealt with that.”

[25]      S.G. next recalls lying down and the accused having vaginal intercourse with her.  S.G. wanted things to end quickly so she started acting like she was into it.  S.G. recalls prior to the intercourse that, L.A. moved from the bed to a chair where she played the drums.  After about 20 minutes, the accused stated he was going to ejaculate and that he wanted to do that inside of her.  S.G. told him not to as she was not on birth control.  S.G. assumed the accused ejaculated as he got up and went to the washroom.

[26]      When the accused was in the bathroom, S.G. got up and got dressed and was preparing to leave.  L.A. suggested that she stay and asked her to look at some drawings and paintings.  S.G. stated that she did not have the time as she had to work. 

[27]      The accused returned from the bathroom, at which point, he and L.A. started arguing.  L.A. told the accused to leave and at first he was reluctant; however, he eventually left.

[28]      S.G. left shortly thereafter and as she was going down the stairs she saw the accused in the backyard placing lines of cocaine on a children’s book.  S.G. walked through the yard without looking at the accused.  The accused started following her asking if they could meet up again and wanting her phone number.

[29]      The accused did not have anything to record a phone number with, so they went into a coffee shop where S.G. wrote down a fake phone number and gave it to the accused.  The accused then walked S.G. to the bus stop and was with her until she boarded a bus.

[30]      After discussing things with a friend, S.G. sought medical attention and reported the incident to the police.  As part of her treatment, she took Plan “B” (a form of birth control) because she was not on birth control when the events happened.

[31]      S.G. agreed there were parts of the night that she does not remember.  It was suggested to S.G. that she initiated contact with the accused and she responded that she could not remember and agreed that she might have.  S.G. denied asking the accused for cocaine.  

[32]      As for going into the bathroom, S.G. is not sure if she used cocaine in the bathroom, she does not recall if she was in the bathroom on more than one occasion, she does not recall if she and the accused kissed or if L.A. raised the issue of a threesome.

[33]      With respect to kissing at L.A.’s, S.G. acknowledged she started to engage with it and it was at that point that she stopped avoiding it.  S.G. does not recall the timing of the kissing in relation to the physical interaction. 

[34]      S.G. was asked in cross examination if the accused performed oral sex on her and S.G. responded that she did not recall.  A copy of her statement was produced to S.G. wherein she told the police the accused had performed oral sex on her and she agreed that this must have occurred.  She also agreed that she probably made sounds to pretend that she was enjoying the oral sex.

[35]      As for going along with it, S.G. testified she wanted to appear to be into it with the hope that the accused would finish.  In this regard, she acknowledged moaning, she agreed she moved during intercourse, and she is uncertain if she faked an orgasm.  S.G. does not recall if she took her shirt off.  She does not recall if the accused asked if he could remove her pants.  S.G. agrees that such a request was possible.

[36]      It was suggested to S.G. that the accused did not remove her tampon and S.G. responded he did and that he said he had taken care of it, at which point S.G. looked and she saw it on the floor.

[37]      Finally, and with respect to the S.G.’s words and actions, I note the following exchanges during her cross examination:

[38]      L.A. is 30 years old and suffers from Schizoaffective Disorder.  She is a graduate from the University of British Columbia and she works as a gardener.

[39]      L.A. confirmed meeting the accused on the evening prior to the incident.  She testified they made their way downtown where the accused purchased cocaine and they had drinks.  She also testified that they were ejected from a bar after being caught using cocaine.  At one point, L.A. recalls going with the accused to East Hastings where he purchased M.D.M.A.

[40]      L.A. recalls going to an after hour club at about 3 or 4 a.m.  At the club the accused and L.A. danced, ate freezes, and sat at a table where they spoke with people.  The accused introduced S.G. to L.A. when L.A. was at the table.  L.A. did not know how the accused and S.G. met.  She recalls the accused telling her that he liked S.G.

[41]      After a period of time, S.G. and the accused and L.A. went to the bathroom to use drugs.  L.A. recalled that while in the bathroom, she had a lot of discussion with S.G. and that the accused was doing drugs. 

[42]      According to L.A., the group was in the bathroom for a long period of time.  This resulted in the door being forced open and the accused getting into an argument.  As a result the accused was kicked out of the club. 

[43]      The group of three left the club and the decision was made to catch a cab to L.A.’s home.  When the cab arrived, L.A. felt S.G. did not want to go with them.  L.A. based her conclusion on S.G.’s body language and her appearance of being pensive.  S.G. eventually got into the cab after the accused stated, “you are coming with us.”

[44]      When they arrived at L.A.’s home, L.A. did not feel comfortable going inside so they stayed in the front yard and after a period of time they went up to L.A’s suite and into L.A.’s bedroom.

[45]      As to what happened in the bedroom, L.A. testified she recalls not having a shirt on and that the accused took it off.  Thereafter L.A. described her memory as being in bits and pieces.  L.A. recalled the accused brought S.G. to the bed. 

[46]      The accused told S.G. to remove her top and when S.G. was naked the accused took L.A’s hand and placed it on S.G.’s vagina, and he placed L.A.’s other hand on S.G.’s breast.  At one point, L.A. recalled S.G. saying in a manner that sounded like a cry for help that she was only in grade 12. 

[47]      L.A. moved from the bed to a nearby chair when the accused and S.G. appeared to be having intercourse.  While in the chair, L.A. tried to calm herself by moving sand and playing the drums.  When the intercourse finished, L.A. testified the accused got up and in her words, “put his penis down my throat and I puked.”  L.A. yelled at the accused and told him to leave.  At this point S.G. and the accused left.  L.A. does not know who left first.

[48]      In cross-examination, L.A. acknowledged that S.G. and the accused could have gone to the bathroom alone.  She also acknowledged she said in her statement to the police that S.G. and the accused were kissing while in the bathroom.

[49]      L.A. could not recall if S.G. and the accused kissed when they were on the bed.  L.A. could not recall if she was the first to sit on the bed and if she took her top off.  She also could not recall if the accused performed oral sex on S.G. prior to intercourse.

[50]      The Crown questioned L.A. about her mental state during the events and she indicated she had been in psychosis for a few days prior to and on the date of the incident.  When in psychosis, L.A. is able to tell her delusions from reality.  She stated she has perceptual distortions and she creates stories for the reasons as to why things happen.

[51]      The accused is 39 years old.  He was born in Winnipeg and he has been in BC for 10 years.  The accused works off and on in the movie industry and he has struggled with addiction issues for several years.

[52]      The accused met L.A. in the early evening of the night prior to the allegations.  Shortly after meeting, the two shared a beer and visited at L.A.’s place for a few hours.  The accused then left and returned at around midnight.

[53]      The two then went out for a bite to eat, eventually making their way downtown where they had a few drinks and the accused purchased cocaine.  The accused and L.A. were asked to leave a bar they were at when the staff saw them consuming cocaine.

[54]      After leaving the bar, the two made their way to the downtown eastside where the accused purchased more cocaine.  They then took a taxi from Main and Hastings to Club 333.

[55]      While at Club 333, the accused was lining up for drinks, when at about 2:45 a.m., S.G. approached him and asked for drugs.  This was the first time that the accused had met S.G. and he estimated she was in her mid to late 20’s.

[56]      The accused told S.G. he had some cocaine and she hugged him.  They then went to the bathroom, snorted cocaine, hugged, kissed and had a discussion.

[57]      When the accused and S.G. left the bathroom they met up with L.A.  The accused made introductions.  Thereafter, the group danced, talked and drank.  All three then went to the bathroom together.  There, they talked and took turns snorting cocaine.  While in the bathroom, the accused and S.G. kissed and hugged.

[58]      They then returned to the main area of the club where they continued socializing.  After a period of time, they returned to the bathroom and they snorted cocaine and talked.  Again, the accused and S.G. were kissing and hugging.  The three shared a group embrace and L.A. suggested a threesome. 

[59]      After a period of time, others in the club started pounding on the door.  Eventually, the door was forced opened.  This led to an argument between the accused and a patron.  Eventually, the accused was asked to leave the club and he did so in the company of S.G. and L.A.

[60]      Once outside there was some discussion about going to L.A.’s house and consuming some more drugs.  The accused, L.A., and S.G. all took a cab to L.A.’s house and when they arrived they loitered in the yard where they did more cocaine.

[61]      By this stage, the accused had consumed about a gram and a half of cocaine and he had had about 15 drinks.  It was the accused’s perspective that he was intoxicated, but he was not staggering or slurring, and he was aware of what was going on.

[62]      Both of the girls appeared high to the accused and he recalled S.G. mentioning that she was high and he noted L.A. was acting strangely in that she was trying to talk to crows in her yard.

[63]      After a period of time, S.G. stated she was feeling cold so the decision was made to go inside.  The group made their way up the stairs and into L.A.’s suite.  Once inside, S.G. went to the bathroom and when she was finished, she joined the accused and L.A. in the bedroom.

[64]      All three sat on the bed and L.A. took off her top and S.G. removed her top and bra.  L.A. then touched S.G.’s breast, while the accused and S.G. kissed.  According to the accused, the kissing was passionate.  Eventually, they adjusted their positioning so they were lying down.  It was at about this time that L.A. moved to the floor where she played the bongo drums and appeared to be humming a mantra.

[65]      The kissing continued for approximately 15 minutes and the accused asked S.G. if it was alright if he removed her pants and she replied “Yes.”  The accused started removing S.G.’s pants and as he did so she lifted her hips up. 

[66]      The accused then kissed S.G.’s stomach and removed her underwear and he started performing oral sex.  The accused was asked if there was discussion prior to the oral sex and the accused answered “No”.  He was then asked why he believed that she was consenting and he stated it was based on her body language, her lifting her hips when he was removing her pants and because they had been passionately kissing. 

[67]      As for the activity prior to S.G’s pants being removed, the accused felt that S.G. was excited and that she had no reservations.  He testified they were both “grinding” on each other when they were kissing.

[68]      When the accused was performing oral sex on S.G., he noticed her degree of moaning increased and he believed she climaxed.  The accused then asked if he could put a condom on to have sex with her and S.G. said “Yes”.  The two had vaginal intercourse, and after about 25 minutes, the accused was having difficulty maintaining an erection.  He stopped and went to the bathroom.

[69]      Once finished in the bathroom, the accused returned to the bedroom where he and S.G. began kissing.  He again performed oral sex on S.G. and, thereafter, he asked if he could have sex without a condom and S.G. said “Yes.”  They then had vaginal intercourse, in various positions.  According to the accused, S.G. stated, “Fuck me, fuck me, cum in me”.  The accused was unable to ejaculate so he faked an orgasm.  They remained on the bed for about five minutes and the accused got up.

[70]      According to the accused, S.G. never mentioned having a boyfriend, she never said, “No” or “Stop” to having sexual contact and she never mentioned that she was having her period.  At no time did he see blood or taste blood and the only thing he saw to suggest that S.G. was menstruating was when they were getting dressed and he noticed that she had a panty liner in her underwear.

[71]      The accused and S.G. then got dressed.  An argument occurred between the accused and L.A.  Apparently, the argument was owing to the fact that the accused said he would stay at L.A.’s place, but changed his mind and decided to walk S.G. to the bus stop. 

[72]      S.G. and the accused left and when they reached the back yard they finished the remainder of the cocaine.  Thereafter, they walked hand in hand towards the bus stop.  They stopped at a coffee shop so the accused could write down S.G.’s phone number.  They then continued to the bus stop and the accused waited with S.G. for five to 10 minutes.  When the bus came, the accused hugged S.G. and said they should hang out sometime, at which point S.G. told him that she was in high school and she boarded the bus.

[73]      The accused was cross-examined extensively over the amount of cocaine that the group consumed.  The accused responses were vague at times and I attribute this to the lack of precision involved measuring out the cocaine.

[74]      The accused confirmed he never asked S.G. if she was too high or if she had too much cocaine.  He also agreed that he did not ask S.G. prior to the sexual contact if she knew what she was doing, however, he testified that he did care about her well-being.

[75]      The accused acknowledged a criminal record starting in June 2015 and ending in June 2016, where he has three convictions for breaching court orders and convictions for mischief, assault, and two counts of uttering threats.

[76]      Finally, the accused agreed he was attracted to S.G. and that after the first hug and kiss at Club 333, that he was interested in the possibility of having sex with S.G.  He also agreed he was interested in a threesome with S.G. and L.A.

[77]      Ms. Miller is a Sexual Assault Nurse Examiner and she was qualified to give opinion evidence.  Her evidence was not contentious and, therefore, I will not review it in much detail. 

[78]      On June 14, 2015, Ms. Miller examined S.G. and during the examination she noted that S.G. had blood in her cervix and a small vaginal tear.  According to Ms. Miller, the location of the blood and the colour was consistent with menstrual blood.  As for the vaginal tear, Ms. Miller cannot draw any conclusions from it except that she felt it was recent.

[79]      The Crown argues the evidence proves beyond a reasonable doubt that the accused committed the offence of sexual assault and urges the Court to reject the accused’s evidence that he honestly yet mistakenly believed that S.G. was consenting.

[80]      With respect to the accused’s evidence, the Crown argues it was not believable and, therefore, it should be rejected.  In this regard, the Crown points to the accused’s claim of a clear recollection, despite having over 10 drinks, and several lines of cocaine.

[81]      Further, the Crown argues the accused’s evidence was not logical and it was self-serving.  Specifically, the apparent contradiction is that Club 333 was an establishment where drugs were openly consumed and yet staff was concerned about checking for identification.  The Crown asserts the accused testified about checking for identification as a way of establishing his belief that S.G. was over 18 years.

[82]      Additionally, the Crown argues the claim by the accused that S.G. never mentioned that she was on her period as being inconsistent with human experience.  Specifically, during the acts of consensual intercourse and oral sex one would inform their partner they were menstruating and that they had a tampon inserted in their vagina.

[83]      The Crown also argues the accused’s testimony was evasive, he took time to fit his answers with the narrative, and he asked a number of times for the Crown to repeat or explain straight forward questions.

[84]      With respect to L.A.’s evidence, the Crown urges the Court to be cautious and to accept the evidence of L.A. where it is corroborated by other sources.  In this regard, the Crown points to L.A.’s evidence wherein she testified that there was only one session of intercourse; which is in contrast to the accused who testified that there were two sessions, but consistent with S.G. who testified to one session.

[85]      A further example, where the Crown says that L.A.’s evidence was corroborated is that both S.G. and L.A. only recalled one trip to the bathroom at Club 333.

[86]      In discussing S.G’s evidence, the Crown argues her evidence was straight forward, she was not evasive, and the gaps in her memory shows she was not creating events or exaggerating.

[87]      The Crown argues S.G.’s evidence proves beyond a reasonable doubt she did not consent, nor was it possible in the circumstances, for the accused to have mistaken her words or actions as consent.

[88]      In support, the Crown points to S.G.’s evidence wherein she told the accused; she did not want to hook up, she had a boyfriend, she was on her period, all combined with S.G. deliberately appearing disinterested by turning her body away.

[89]      Counsel for the accused argues the Crown has failed to prove beyond a reasonable doubt that S.G. did not consent.  In the alternative and if consent is found, Counsel argues the Crown has failed to prove beyond a reasonable doubt that the accused did not honestly and mistakenly believe S.G. was consenting to sexual contact.

[90]      In argument, counsel submitted that the accused’s evidence was credible and primarily confirmed by S.G’s evidence and portions of L.A.’s evidence.  Counsel points out the many areas where S.G. could not remember her actions that formed the foundation and contributed to the accused’s belief in consent.  Some examples are, asking if he could remove her pants and her answering, “Yes”, asking if he could perform oral sex and her answering, “Yes”, him asking if he could have sex with her with a condom and her answering, “Yes”, S.G’s moaning and movements during the act, as well as S.G. not physically resisting or leaving the room.

[91]      Counsel also highlights the events leading up to the sexual contact as evidence showing that S.G. consented and in the alternative as evidence supporting the accused’s reasonable belief in consent.

[92]      A corner stone of the Canadian Legal System is the presumption of innocence.  Specifically, an individual accused of a crime is presumed to be innocent until a judge or trier of fact who, after considering all of the evidence, is satisfied that the Crown has proven each element of the offence beyond a reasonable doubt. 

[93]      In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paragraph 36, Mr. Justice Cory provides a summary of the definition of beyond a reasonable doubt:

[94]      Although proof beyond a reasonable doubt is a high standard, again, it does not require proof to the degree of certainty.  As Lord Denning observed:

[95]      Additionally, proof beyond a reasonable doubt cannot be founded on a suspicion of guilt or a belief that the accused is likely guilty, rather, the presumption of innocence can only be displaced if the trier of fact is satisfied that each element of the offence has been established beyond a reasonable doubt.

[96]      Given the accused testified, is it necessary for the Court to apply the analysis as set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at paragraph 28:

[97]      The crime of sexual assault is an assault that is of a sexual nature where the sexual integrity of victim is violated:  R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909.

[98]      The essential elements of the actus reus are: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paragraph 25.

[99]      The first two elements; the touching and the nature of the touching, are determined objectively.  In contrast, the issue of consent is subjective and determined by the complainant’s internal state of mind, thus and at this stage, it is only the complainant’s perspective that is considered:  Ewanchuk, supra., at paragraphs 26 - 27.

[100]   A complainant’s assertion as to their state of mind may be challenged and thereby, raising a reasonable doubt.  In this regard, Mr. Justice Major, at paragraphs 29 - 30 of Ewanchuk, commented:

[101]   In addition to the above, one must be mindful that there are circumstances where the “consent” of a complainant maybe vitiated.  Such circumstances are set out in s. 265 of the Code and include; consent obtained by force, fear, threats, fraud or the exercise of authority.

[102]   With respect to a complainant’s assertion of complying because of fear, the complainant must honestly believe that she will suffer violence if she does not comply.  The fear does not have to be reasonable, nor does it have to be communicated to the accused, however, the plausibility of the fear and any expressions of fear are relevant to the complainant’s credibility: Ewanchuk, supra., paragraphs 38 -39.

[103]   If the elements of the actus reus have been proven beyond a reasonable doubt, a trial judge must then consider if the accused possessed the requisite mens rea: Ewanchuk, supra., paragraph 40.

[104]   The mens rea requirement for sexual assault requires the Crown to prove beyond a reasonable doubt that the accused intended to touch the complainant when the accused, knew or was being reckless or willfully blind to the absence of the complainant’s consent: Ewanchuk, paragraph 42.

[105]   The assertion by the accused of an honest but mistaken belief in consent may undermine the Crown’s evidence of mens rea.  In order to be successful, the accused must show he believed that the complainant communicated consent to engage in the sexual activity.  As stated in Ewanchuk, at paragraph 47, the question is as follows:

[106]   In evaluating S.G’s evidence, I note she had difficulty recalling some details of what occurred at Club 333 and at L.A.’s home.  Despite these problems, I found her to be a credible and believable witness.  She testified in a forthright and careful manner.  She did not embellish her evidence and she conceded all points where she had difficulty recalling details.  I also noted her evidence was internally and externally consistent and it aligned with common sense. 

[107]   With respect S.G.’s comments suggesting something may happen if she resisted, there is no evidence to suggest that the accused was or may have been violent.  Despite this, I do not see S.G.’s concern of violence as damaging to her credibility.  I say this because of the circumstances known to her at the time, specifically, she was 18 years old, high on cocaine, in a stranger’s home, and in the company of a grown man, who was not listening to her and making advances, as such, her views do not impact her credibility. 

[108]   After considering L.A.’s evidence, I find it would be unsafe to accept her evidence unless corroborated by a reliable source.  I say this because at the relevant time L.A. was suffering from psychosis and high on cocaine.  Moreover, I note her significant inconsistency when she testified that the accused placed his penis in her mouth and that she vomited.  S.G. and the accused did not mention such an event.  Given the manner that this event was alleged to have occurred, there is no doubt that S.G. and the accused would have recalled it.

[109]   In considering the accused’s evidence, I have not placed any weight on his criminal record.  This is because I suspect the record is more reflective of his addiction rather than his integrity.

[110]   I have carefully considered the totality of the accused’s evidence and I do not accept L.A. mentioned a threesome, or that; S.G. verbally consented (or assisted in) to the removal of her pants, or consented to oral sex or vaginal intercourse.  I do not accept the accused’s evidence when he testified that S.G. never said anything about a boyfriend, being on her period or that she did not want to hook-up. 

[111]   I have not accepted the accused’s evidence on the points above because I found his evidence was inconsistent and portions of it did not conform to common sense and some of it was void of detail.  I also observed that the accused was an evasive witness. 

[112]   As for the inconsistencies, I note the accused’s evidence changed regarding asking S.G. if he could perform oral sex.  Originally, the accused’s evidence was silent on this point, however, later during his evidence in chief he added this fact and then in cross examination when it was suggested there was no talking before oral sex the accused responded, “um, I don’t know.”  In my view such vacillation is significant.

[113]   An external inconsistency was the accused’s evidence regarding leaving the bedroom during intercourse and then returning.  His testimony in this regard was inconsistent with the evidence of L.A. and S.G.

[114]   A further inconsistency is found in the accused’s evidence that S.G. first agreed to intercourse with a condom and then agreed (on the second occasion) to sex without a condom, and that she told him to ejaculate inside her.  These contradictions become amplified when one considers that S.G. was not on birth control and later as a precaution, she took the Plan B contraceptive pill.

[115]   I also observe that the accused’s evidence was unbelievable in various respects.  The accused’s evidence suggesting that upon entering L.A.’s room that L.A. took her shirt off and then without any prompting or interaction that S.G. took her shirt and bra off and joined them on the bed.  In essence, the accused’s evidence suggests immediately upon entering L.A.’s room and without any general conversation or lead up, that clothes started coming off.  I find it unusual that things would advance so quickly at L.A.’s home, even in the face of kissing and hugging at Club 333 when viewed in the circumstances where there had been no sexual touching or agreement to sexual contact. 

[116]   It also makes no sense that the accused only noticed the panty liner when S.G. was getting dressed.  If there had been a panty liner, one would have expected that the accused would have noticed it when he removed S.G’s underwear. 

[117]   As for lacking detail, the accused provided no evidence regarding removing the condom and un-wrapping it, he gave no details regarding when or how his pants were removed.  He also claims to have waited at the bus stop with S.G. for five to ten minutes and yet he gave no evidence regarding what they talked about, and finally, when the accused claimed to have learned that S.G. was in grade 12, his only reaction was he was shocked.  One would expect, even if she was about to board the bus something along the lines of “You’re kidding me?  Why did you not tell me?” and yet the accused provides no details.

[118]   Another area where detail was lacking is when the accused testified that L.A. mentioned a threesome.  Specifically, no evidence of the words spoken, how the others responded, or if the subject was ever raised again.

[119]   Finally, the accused’s testimony was less than straightforward.  There were several instances where he was evasive or sought clarification even on the most basic of questions.  I also noted a significant change in how the accused responded to questions on direct examination versus how he responded on cross-examination.  Some change is to be expected given the dynamics at play, however, in the instant case the changes observed were significant and noteworthy.

[120]   I am satisfied that S.G. approached L.A. and the accused at Club 333 and that there were three trips to the bathroom where cocaine was consumed.  I am also satisfied there was hugging and kissing in the bathroom.  I am not satisfied there were comments regarding a threesome.  I also find the accused was attracted to S.G. and was complimenting her.

[121]   I accept that the accused, L.A. and S.G. took a cab to L.A.’s home.  I find S.G. went willingly and without prompting.  Once at L.A.’s home, I find the group spent sometime in the front yard where more cocaine was consumed, and that they eventually went upstairs to L.A.’s suite.

[122]   Once inside L.A.’s suite, I find that S.G. went to the bathroom and when finished she entered the bedroom and saw L.A. without a shirt on the bed with the accused.  I find that S.G. sat in the chair across from the bed, but after coaxing from the accused joined the accused and L.A. on bed.

[123]   I find once S.G. was on the bed, that the accused started complimenting her, leaning in towards her, touching her and pulling down her top.  I also find that while this was occurring, that S.G. repeatedly kept saying she had a boyfriend, that she did not want to hookup and that she was on her period.  I find the accused ignored these signs of lack of consent and he persisted without inquiry.  I also find he said words such as, “I know you want it, you wouldn’t be here if you didn’t want it”, which in my view confirms the accused’s awareness as to S.G.’s lack of consent.

[124]   I find the accused started kissing S.G. on her lips and that she did not physically stop him.  The accused then continued touching and kissing.  At about this stage, S.G. decided to go along with things because she felt that this was the safest course of action.  As the accused moved down S.G’s body, S.G. again stated she was on her period and she did this hoping that the accused would stop.

[125]   I find the accused removed S.G.’s pants and underwear without her permission and at about this stage S.G. told the accused that she had a tampon in and he responded that he had removed it.  Thereafter, the accused had oral and vaginal intercourse with S.G. and that during these acts S.G. portrayed that she was actively involved and she did this for the purpose of having the accused finish. 

[126]   I also find that the accused was aware that S.G. was under the influence of cocaine.  I do not accept that the accused asked S.G.’s permission to engage in sexual contact, nor do I accept that the accused stopped vaginal intercourse in order to use the bathroom.

[127]   I reject the majority of the accused’s evidence and those portions that I accept do not leave me in a reasonable doubt.  Specifically, his evidence does not raise a doubt about whether or not S.G. consented to sexual activity, nor does it raise a doubt regarding the possibility of an honest but mistaken belief in consent.

[128]   When I consider all of the evidence, I am satisfied beyond a reasonable doubt that S.G. did not consent to being sexually touched.  I am also satisfied beyond a reasonable doubt that there was no factual basis for the accused to reasonably and honestly believe that S.G. was consenting.  In my view, the cumulative effect of S.G.’s words and actions demonstrated a clear lack of consent.

[129]   Accordingly, I find the accused guilty of sexual assault.