IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Shields is charged with one count of sexually assaulting A.S.  At the time of the allegation, both were employed with the RCMP.  Mr. Shields was an Inspector in charge of the strategic communications section and A.S. was a civilian member employed as a senior communications specialist.  A.S. alleges that after a meeting with Mr. Shields she went with him to a unisex washroom where Mr. Shields locked the door.  He then kissed her, undid her bra and grabbed her hand and placed it on his erect penis.  She says that she did not consent to the sexual activity.  In contrast, Mr. Shields testified that the sexual activity in the washroom did occur but that A.S. was a willing participant in the activity.

[2]           The issue I must decide is whether the Crown has proven beyond a reasonable doubt that Mr. Shields sexually assaulted A.S. by touching her sexually without her consent or alternatively, whether the defence of honest but mistaken belief in consent applies and whether the Crown has disproven that defence beyond a reasonable doubt.

[3]           The Crown submits that when assessing the credibility and reliability of sexual assault complainants the court must avoid making inferences or findings based on myths and stereotypes of sexual assault complainants.  The Crown suggests that the defence has relied on such impermissible inferences in their submissions.

[4]           The Crown submits that the testimony of A.S. is compelling, credible and reliable and ought to be believed.  Mr. Shields’ testimony that A.S. was an enthusiastic and willing participant in the sexual activity when considered alongside the other evidence does not raise a reasonable doubt and should be rejected as unreasonable, contrived, and inconsistent with the external evidence.  The Crown further submits that the defence of honest but mistaken belief in consent does not arise on the facts.  The Crown suggests that the case against Mr. Shields is proven beyond a reasonable doubt.

[5]           Counsel on behalf of Mr. Shields submits that the entire encounter in the washroom was consensual.  He says that A.S. affirmatively communicated by words and conduct her agreement to voluntarily engage in the sexual activity with him.  He submits that A.S. fabricated the sexual assault allegations to advance a claim for compensation, at a time when she and her partner were in dire financial straits and her eligibility for disability benefits was being challenged by RCMP health services.  He submits that A.S. is a fraud and a liar and urges me to make those findings.

[6]           He submits that Mr. Shields gave his evidence in a calm and straightforward manner.  He was able to make detailed and complete observations with respect to the pertinent events.  He urges me to find Mr. Shields not guilty of the charge.

[7]           Both Crown and defence agree that there is no evidence that Mr. Shields used his position of authority over A.S. to either induce or coerce her consent to the sexual activity.  Therefore, sections 273.1(2)(c) and 265 (3)(d) of the Criminal Code, need not be considered in this matter since there is no evidence that A.S.’s consent was vitiated by virtue of Mr. Shields’ authority position over her.

[8]           Additionally, both counsel agree that sexual touching occurred between the two in the bathroom and that Mr. Shields intended to touch A.S. in a sexual manner.

[9]           In February 2008, A.S. was hired as a full time civilian member with the RCMP to work as a senior communications advisor.  Previously she had achieved undergraduate degrees in English literature, communications and business administration from Simon Fraser University.  She also has a certificate in fine arts from Emily Carr University.  She has held many positions in private industry and government in the communications field.  She was born in 1967.

[10]        When A.S. was hired by the RCMP she was assigned to the relocation project.  A project that oversaw the relocation of the RCMP headquarters from Vancouver to Surrey.  She reported directly to two individuals: Wayne Sutherland and Robert Jorssens.  She worked in an office in downtown Vancouver with Mr. Sutherland but would often travel to Vancouver RCMP headquarters on Heather Street to meet with Mr. Jorssens.

[11]        She first met Mr. Shields at a conference in the spring of 2009 during which he informed her that she should also be attending the weekly meetings at the section he was the Inspector in charge of: the strategic communications section.  As a result she asked Mr. Sutherland and Mr. Jorssens to make her available to attend most of these meetings and they both agreed to her request.  As a result she made efforts to attend the weekly meetings of Mr. Shields’ section which took place mostly on Thursdays at RCMP headquarters on Heather Street.

[12]        A number of employee evaluations of A.S. were introduced in evidence which include comments from Mr. Shields as one of her supervisors.  In one of her evaluations A.S. wrote on March 31, 2010 that:

[13]        A.S. recalls during the summer of 2009, as she was leaving the Vancouver headquarters building, that she ran into Mr. Shields and a colleague.  After the colleague left their company Mr. Shields told A.S. that he was sexually attracted to her.  She told him that she did not feel the same way towards him.  A.S. testified that Mr. Shields “had kind of a look of rejection” after hearing this.

[14]        Prior to this conversation in the summer of 2009, A.S. testified that she had previous conversations with Mr. Shields which turned sexual in nature.  She recalled a conversation which took place in his office where he asked her if she enjoyed oral sex and stated he would like to perform oral sex on her.  She does not recall what she said in response but she recalled feeling embarrassed at the time.

[15]        She recalled other conversations of a similar nature during which she told him she wasn’t interested in a relationship with him.  She recalled telling him that she would like these conversations to stop and she informed Mr. Shields that she had told another colleague about these conversations to which Mr. Shields responded, “That’s okay, nothing happened anyway”.

[16]        Mr. Shields gave evidence regarding this encounter and his background.  He was born in 1965.  He has a diploma in civil and structural engineering from BCIT and he has a Master’s degree in criminology from the University of the Fraser Valley.  He joined the RCMP in 1996 and in 2008 he was transferred to the strategic communications section of the RCMP as the Sergeant in charge.  In 2009, he achieved the rank of Inspector and remained in charge of the section.

[17]        Mr. Shields recalls his first meeting with A.S. at the conference which took place at the end of February 2009.  Before that time he recalls being aware of her within the RCMP but had no contact with her.  Mr. Shields testified that at the conference A.S. was very complementary towards him and he recalled the two of them speaking a number of times during the conference.  He testified that she agreed to come by his office in the future and show him one of her paintings.

[18]        After meeting A.S. at the conference, Mr. Shields says that A.S. would often drop by his office unannounced.  These were mainly social visits that eventually became flirtatious.  At the beginning of these series of visits, A.S. and Mr. Shields would engage in a friendly hug.  After a period of time Mr. Shields testified that these hugs became more sensual.  During the visits the conversation became personal in nature and at times flirtatious.

[19]        He recalls a visit surrounding a previous email exchange between the two about tan lines, during which A.S. remarked that she thought his tan lines looked attractive.  He does recall bumping into A.S. outside the headquarters building where a co-worker was present for part of the visit.  However, he denies telling A.S. that he was attracted to her during this meeting.

[20]        He also testified about another conversation with A.S. which occurred during the second half of April 2009, and he recalled a humorous television episode was discussed.  During this discussion A.S. indicated that she had thought about him and touched herself the previous night.  Also during this discussion they both talked about how they both enjoyed oral sex.

[21]        He said there were other discussions of this nature which he described as “open and honest and involved sexuality”.

[22]        On the day of the bathroom incident Mr. Shields testified that A.S. entered his office, approached him and pushed him up against a bookshelf.  This form of greeting was different than usual because A.S. did not close the door, which she usually did before their meetings.  He said they embraced and began rubbing each other’s backs.  They were positioned with their cheeks touching and A.S. told him that, “You feel so good”.  After 30 seconds, he broke off the hug and closed the door.  A conversation ensued which was sexual in nature and they discussed what it would be like to kiss each other.

[23]        He said that this conversation was lengthy and lasted for approximately an hour and a half.  He said that they were interrupted by co-workers on two occasions which required him to leave the office.  At one point Mr. Shields recalls A.S. asking him to walk her to her car.  He agreed to this request and they walked down the stairs together to the main floor of the building.  On the way down the stairs, they brushed hands and A.S. said to him, “I never got my hug”.  He responded that he never got his hug either.  He then said that he suggested to A.S. that he knew where the two could be alone without interruptions.  He took her to a washroom door and told A.S. that the door has a lock on it.  She smiled at him and said, “Okay let’s do it”.  He then held the door open for her and she went in and he followed and locked the door.  The washroom is approximately 30 feet from the main lobby of the building which has the commissionaire’s desk that was staffed 24 hours a day.

[24]        Once inside the bathroom he went to the sink area and put his notebook down on the counter.  He then walked towards A.S. who had placed her bags on the floor.  They said “hi” to each other in a low voice and began embracing each other.  Mr. Shields testified that A.S. was breathing noticeably through her nose and making soft moaning noises.  They then began to passionately kiss each other and A.S. began rubbing his back and chest area.  Mr. Shields said that her hand brushed across his groin area and A.S. began massaging his genitals through his pants.  He then began touching her breasts over her shirt.  She said to him she wanted to feel him and he said “so feel me”.  She then pulled his penis out and began masturbating him.  He unbuttoned her shirt buttons and began feeling her breasts over her bra.  He then undid her bra and began feeling her breasts directly.

[25]        He was then surprised to notice that A.S. used a wad of spit as lubricant to masturbate him.  He had never seen this before.  At this point he undid the top button of A.S.’s pants and started to undo her zipper, A.S. told him quietly “no” and then he immediately let go of the zipper.  She continued to masturbate him in the same manner and eventually he felt like he was going to climax.  He told her to stop and he then took some steps backwards until he backed into the sink counter. She told him she wanted him to climax and he replied “I want to but not here”.  He took her hand off his penis to make her stop.  They both then arranged their clothing and left the bathroom.

[26]        Mr. Shields recalls that A.S. contacted him on the phone and they discussed “how hot” their earlier encounter was.

[27]        A.S. gave evidence that the bathroom incident occurred sometime in early fall of 2009.  She said she recalls Mr. Shields being stressed out at the time over a pending managerial review.  On the day in question she went by his office to give him an update on something she was working on and to say goodbye.  She recalls this occurring in the morning before noon.  Mr. Shields said he had something he wanted to tell her.  She did not know what it was about.  She said he led the way out of his offices into a hallway and down a flight of stairs to a unisex bathroom on the main floor near the commissionaire’s desk.  She testified she had no idea where he was taking her and she followed him because he had asked her to.  She said Mr. Shields led her to into the bathroom and then locked the door and said, “I found this place and it has a lock on the door”.  She said once they were inside the bathroom she felt frozen and confused, she did not know what was going on.

[28]        She said Mr. Shields then led her to the sink and counter area and he started kissing her.  She said she was frozen at this point and he said, “Don’t we have good chemistry”.  He said they could have sex right there on the counter to which she did not respond.  He then placed his hand under her blouse and undid her bra and touched her breasts.  She said his hand went towards her waist and he unbuttoned her pants, he was about to unzip her pants but she pushed his hand away.  She said to him, “No let’s go this is a bathroom”.  The accused said he could just do oral sex on her.  She said no.  She said she felt uncomfortable, and thought the whole scene was disgusting and weird.

[29]        She said she then checked her zipper and buttoned up her pants.  She turned away from him, and walked back to the door to leave.  At this point she said she was closer to the counter and he was in front of her.  She said he took a few steps backwards and he undid his pants and pulled out his penis.

[30]        Mr. Shields then took A.S.’s hand and put it on his penis, she recalls his penis being erect and she does not recall what happened immediately after this point.  She does remember touching it and him asking her to put it in her mouth at the time.  She thinks she said no.  She remembers being quite scared and wanting to get out of the washroom.

[31]        She recalls next Mr. Shields backing up and saying that he was on the edge of ejaculating.  He zipped up his pants and washed his hands and face in the sink.  He did not ejaculate.  She said she was standing still against the wall at this point and feeling shocked.  Mr. Shields then looked up and told her not to forget to do up her bra and she said she did as she was instructed.

[32]        Mr. Shields told her not to tell anyone about this as it would be bad for him and that he knew he could trust her.

[33]        He told her to go first out of the bathroom and to see if anyone was out there.  He told her to let him know if it was safe to come out.  She did go out first and recalls telling him that it was okay to come out.

[34]        After leaving the bathroom A.S. went back upstairs to the office to get her belongings she had left in the open area.  She recalls going to a woman’s washroom near the old elevator on the second floor and washing her hands.  She then went to the government vehicle and drove to her office downtown.

[35]        She felt disbelief, shock, weird and gross over what had happened.  She recalls Mr. Shields phoning her at her downtown office that same day.  He told her how hot everything was and that he could still smell her on his hands.  She felt really uncomfortable and got off the phone as soon as she could.

[36]        A.S. filed away this incident and carried on with her employment as usual.  However, in early August of 2013, she became aware of another complaint against Mr. Shields and the RCMP of a similar nature to hers and her emotions came flooding back.  She immediately sought legal counsel and became involved in counselling.  She did not provide a statement to the police until April of 2015 despite the police efforts commencing in September of 2013, to obtain one from her.

[37]        A number of email exchanges between A.S. and Mr. Shields were introduced into evidence.  One exchange before the bathroom incident took place dealt with reference to tan lines:

[38]        A.S. did not respond to that e-mail until April 22, 2009.  She explained that she had been ill with stomach issues.  The e-mail response expressed a hope that the planned meeting would occur before she went on holiday on May 7, and ended with the comment “Bug Hug, A.”.

[39]        Admissions were filed concerning the evidence of Inspector Burton who recalls in October of 2009 A.S. showing him some text messages from Mr. Shields to her which she described to him as weird.  It was difficult for Inspector Burton to ascertain the true nature of the messages without more context.  He has no memory of A.S. complaining to him about the bathroom incident but believes he would have taken action and brought it forward if she did.

[40]        A.S.’s partner, S.I., testified that he met A.S. in early 2012.  In August of 2013, he was with A.S. when she became aware of the contents of Notice of Civil Claim by the female colleague of A.S. against Mr. Shields.  He said that A.S. became extremely distraught; he had never seen her in such a state.  He described her as panicky and he spent the afternoon with her trying to console her.  He stated that she was so upset that he had to assist her in typing her statement for her legal counsel about the conduct of Mr. Shields.

[41]        S.I. was extensively cross-examined regarding his business dealings.  He has had a long history of failed businesses and in August of 2013, he was under significant financial pressures: his house was recently foreclosed on and a company he was a principal of was heavily in debt.

[42]        The Crown must prove a number of elements which form the basis for the actus reus of sexual assault offence.  However for the purposes of this matter the only element that is at issue is whether the Crown has proven beyond a reasonable doubt that A.S. did not subjectively consent to the sexual touching in the bathroom.

[43]        Section 273 of the Criminal Code defines “consent” as the “voluntary agreement of the complainant to engage in the sexual activity in question”.

[44]        In section 273.1 “consent” is defined in the context of sexual assault offences.  The applicable portions of that section are:

[45]        In R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, the Supreme Court of Canada held that the absence of consent is subjective and determined by reference to the complainant’s internal state of mind towards the touching at the time it occurred.

[46]        The court stated, at paragraph 27:

[47]        At paragraph 29, the court stated that:

[48]        It is also important to note that at this stage the accused’s perception of the complainant’s state of mind is not relevant.  It is further important to recognize that the relevant time for the complainant’s consent is while the touching is occurring.  The complainant’s views regarding the touching before or after are not directly relevant.  Lastly, in relation to sexual assault offenses there is no recognition of implied consent.  Therefore, “if the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus sexual assault is proven,”: Ewanchuck, at para. 31.

[49]        Section 273.2 of the Criminal Code provides:

[50]        An honest but mistaken belief in consent is, in essence, a denial of the mens rea or guilty mind of the accused.  It is a claim that the accused acted under a mistaken belief in a set of facts, which if true, would render him not guilty.

[51]        In Ewanchuk, the Court established the legal framework for evaluating the defence of mistaken belief in consent.  The following principles have emerged:

[52]        There is no air of reality to a defence of honest but mistaken belief in consent where the accused and complainant provide “diametrically opposed accounts”:

[53]        When considering whether the Crown has proven its case against Mr. Shields I must be guided by certain principles that are integral to our legal system in Canada.  I must keep in mind in deciding this case that where there is a conflict in the evidence that I do not resort to preferring one version of events over the other.  A criminal trial is not a credibility contest.  It is a trial to determine whether the Crown has proven the guilt of Mr. Shields on the specific charge, beyond a reasonable doubt.

[54]        It is a fundamental principle of our criminal justice system that every person charged with an offense is presumed innocent, unless and until the Crown has proven his or her guilt beyond a reasonable doubt.

[55]        Connected with the presumption of innocence is the standard of proof that is required to displace the presumption.  In a criminal case the Crown must establish each essential element of the charge against the accused to a point of proof beyond a reasonable doubt.  In a noncriminal case the party suing another party need only establish their case on a balance of probabilities.  However, in a criminal case the strength of the evidence must go much further and establish the Crown’s case to a point of proof beyond a reasonable doubt.  This is not to a standard of absolute or scientific certainty, but it is a standard that certainly approaches that and anything less on an essential element of the charge entitles Mr. Shields to the full benefit of the presumption of innocence and dismissal of the charge.

[56]        The expression proof beyond a reasonable doubt does not carry with it a precise definition; however it is a principle that is well understood in our legal system.  In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada suggested that trial judges may wish to tell juries the following about this legal principle:

[57]        Flowing from these principles is the notion that every person in Canada facing a criminal allegation is entitled to plead not guilty and put the Crown to strict proof of the charges.  Mr. Shields has the right to remain silent, not testify in his own defence and seek an acquittal on the basis that the Crown’s case fails to establish his guilt beyond a reasonable doubt.  However, in this matter Mr. Shields has chosen to testify in his own defence and as a result I must instruct myself according to the framework of the Supreme Court of Canada case of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at page 7.  I set out the framework as follows:

[58]        I must also add to the framework the comments of Wood J.A. in R. v. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146, at para. 24:

[59]        I must have regard to the credibility and reliability of each witness’s evidence.  In R. v. C.(H.), 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:

[60]        There are many factors to take into account when assessing a witness’s evidence, some of which are:

[61]        There have been a number of submissions made regarding the evidence that I must consider, however some I find play no bearing on my ultimate conclusion in this case.

[62]        I do not see A.S.’s delay in reporting this matter to others and later the RCMP as significant.  The fact that she carried on with her employment and sporadically had professional, even friendly contact with Mr. Shields after the bathroom incident is of no significance in this case.

[63]        Her employment with the RCMP at the time was potentially only until the RCMP headquarters were relocated and after it would be necessary for her to find work in another section of the RCMP.  It was important to her employment to remain on good terms with Mr. Shields during this time period since she could potentially end up working for his section.  Mr. Shields was not a direct supervisor at the time but he had potential to be one.  The fact that she gave Mr. Shields a book with a nice personal inscription in it and the fact that she gave Mr. Shields and his section favourable evaluations are all consistent with her advancing her career and in no way detract from the fact that she may have been earlier sexually assaulted by Mr. Shields.

[64]        After A.S.’s disclosure of the bathroom incident to friends and her counsel in August of 2013, it was not until April of 2015, that she provided written answers to the police through her counsel and it was not until May 5, 2015, that she participated in an interview with police.  This is despite the RCMP making repeated efforts to interview her after August of 2013, about the allegations.  It is suggested by Mr. Shields that the failure to make a timely report to the investigators adversely affects the credibility of A.S.

[65]        After her initial disclosure to friends in August of 2013, of the bathroom incident, A.S. retained counsel and was following counsel’s advice not to speak with investigators.  There are a number of very good reasons for not immediately speaking to investigators of the RCMP after August of 2013, but it is enough that A.S. was following the advice of counsel not to do so, this fact alone is sufficient for me to not consider the failure of making a timely disclosure to the RCMP as significant in assessing A.S.’s credibility.

[66]        I should add that by requiring A.S. to explain why she delayed in reporting the sexual assault and why she was friendly to Mr. Shields after the assault runs afoul of law which prohibits courts from relying on myths and stereotypes as to how sexual assault complaints should behave following an assault.  In the circumstances of this case it would be improper to take such evidence into account in deciding the issue of non-consent of A.S.: See R. v. A.R.D.J., 2017 ABCA 237, at paras. 41– 42, 48, 50, 55 – 56.  Also, R. v. D.(D.), 2000 SCC 43, at para. 65. 

[67]        A.S. was also challenged with the proposition that she colluded with her partner in August of 2013, to make a false allegation against Mr. Shields for the purpose of launching a civil claim against him and the RCMP.

[68]        I carefully considered the evidence of A.S. and S.I. on this point and I find that there is no evidence that they colluded together to make a false complaint against Mr. Shields.

[69]        Evidence was led concerning A.S.’s emotional state after she read the Claim of her colleague against Mr. Shields.  This evidence came from A.S. and her partner.  It was argued by counsel for Mr. Shields that the two were inconsistent with each other on a number of points regarding their evidence of this time period.

[70]        I am unable to come to any conclusions as to why A.S. appeared the way she did after reading the Notice of Civil Claim.  There are a number of reasons why she may have reacted in the manner she did but I am unable to ascertain why.  In addition, any inconsistencies between the evidence of A.S. and S.I. to me are minor.  I do not view any of this evidence as bolstering or detracting from the credibility of A.S.  I see the evidence as part of the narrative of events.

[71]        There is a conflict between the parties regarding when the bathroom incident occurred.  A.S. believes it happened around early September 2009 while Mr. Shields says it occurred on April 29, 2009.  I find I cannot resolve when the incident occurred; both A.S. and Mr. Shields appeared credible on this point.  However I do not see the actual date of the event of great importance, since the actual date neither assists or detracts from the credibility of A.S. or Mr. Shields in the circumstances of this case.

[72]        Both A.S. and Mr. Shields are intelligent, articulate and well-educated individuals.  At the time of the bathroom incident they were mature and of similar ages in their early forties.  Mr. Shields had been with the RCMP for 13 years, while A.S. had only 1 year of service though she previously had varied and extensive employment experience in the communications field.

[73]        Both had the challenge of testifying about an event which took place eight years prior.  A.S. did not address her mind to the incident until August of 2013, four years after it occurred.  Mr. Shields did not address his mind to the incident until after five years had elapsed.  The historical nature of this incident is an important factor when considering the reliability of their evidence since the passage of time tends to cause memories to fade and tends to erode the quality of the evidence.

[74]        Trial Judges should not place too much emphasis on how a witness behaves while giving evidence when assessing their credibility: See R. v. Jeng, 2004 BCCA 464, at para. 54.  In court witnesses are required to speak about difficult events in a very foreign and public environment.  They are often nervous and feel significant pressure when undergoing prolonged cross-examination.  However, after allowing for these considerations, I find that A.S. presented poorly as a witness.  She was often combative with defence counsel.  She often interrupted him, occasionally tried to insult him, and in so doing did not answer many of the questions posed in a responsive and helpful manner.  On a number of occasions I felt it necessary to intervene to instruct her to answer the questions posed and to not argue with counsel.  Defence’s cross-examination of her was lengthy but in my view, it was conducted in an appropriate and professional manner.

[75]        Mr. Shields presented generally as a good witness while testifying.  He was generally unshaken in cross-examination, which was lengthy though not as lengthy as that of A.S.  He was prepared to concede points unhelpful to his case on most occasions, however he seemed reluctant to readily concede that he was a person in authority in relation to A.S.  He eventually did but he struck me as evasive during this portion of his evidence.

[76]        A.S.’s recounting of the events leading up to the bathroom incident strikes me for the most part as plausible and internally consistent.  She recounted incidents of a superior sexually harassing her on a number of occasions which she tried to ignore.  This is an entirely believable scenario.

[77]        Mr. Shields’ recounting of the events leading up to the bathroom incident are also plausible.  His version recounts two colleagues of similar age who became sexually attracted to each other and commenced a flirtatious relationship while at work.  The email exchange between the two regarding tan lines supports his assertion that the two had a flirtatious relationship before the bathroom incident, though it has no bearing as to whether A.S. consented to the sexual touching in the bathroom.

[78]        However, I cannot resolve, on either of their versions, how they ended up in the unisex washroom together.  According to Mr. Shields their flirtatious conduct which involved prolonged sensual hugs in his office culminated in the two spontaneously deciding to make a detour to engage in a tryst in the washroom at police headquarters en route to A.S.’s vehicle.  The location, a public washroom steps from the main entrance of the building and a staffed commissioners desk, appears to be an odd choice for such an encounter.

[79]        A.S. on the other hand describes a sudden request by Mr. Shields during the morning hours of a workday to accompany him somewhere to talk and she then agrees to follow him without question into the first floor, clearly marked washroom at police headquarters.  She testified she felt confused once inside the washroom, but was apparently content to follow him inside.  This is in the face of their prior meetings which occurred on numerous occasions in his office with the door closed when privacy was required.  A.S. is and was a confident individual, it seems unlikely that she would follow anyone, even a superior, into a washroom to talk without first asking why.

[80]        Both A.S. and Mr. Shields describe the circumstances as to how they ended up in the bathroom together.  Each version strikes me as unusual, I simply do not know whom to believe on this point.  However, they both agree they eventually ended up in the bathroom together.

[81]        The actual description by Mr. Shields of the interactions with A.S. in the washroom appears plausible.  His version describes a sexual encounter between the two where both were active participants.  Through words and conduct each conveyed their agreement or non-agreement to the sexual touching that occurred.  In one instance A.S. requested that Mr. Shields remove his hand from her pants button and zipper which he did and in another instance Mr. Shields requested that A.S. stop touching his penis and she did.  On this version of events, if true, the sexual conduct between the two as described by Mr. Shields is clearly consensual.

[82]        The Crown submitted that he conjured up details of this event to hide the true nature of the interaction which was a sexual assault.  The Crown questioned how could he have such a detailed recollection of the event which was not really significant to him.  Mr. Shields did provide a very detailed version of the incident with A.S. in the bathroom.  However, during his testimony he was asked to repeat in cross-examination the details of the bathroom incident and other aspects of his interactions with A.S. over the years.  Instead of repeating the same version he gave during direct examination with the same phrases as if his evidence were scripted, he provided a consistent version but with different language.  This consistency in his evidence between his cross-examination and direct examination presented as trustworthy to me.  I find that Mr. Shields appeared credible and reliable in this aspect of his evidence.

[83]        The recounting of the bathroom incident by A.S. for the most part appeared credible.  Her version is clear: she was sexually assaulted by Mr. Shields in the washroom.  However, there is one aspect of her version of events which raises a concern.  A.S. testified at one point Mr. Shields had placed her hand on his exposed erect penis but she cannot remember what occurred after that except that he asked her to put it in her mouth to which she refused.  In cross-examination it was put to her that she enthusiastically engaged in masturbating him at that point.  She replied that she had no recollection of that and she went on to say that if she did masturbate him in such a manner, “Then it was -- then it’s worse than I -- I realized.”  At another point during the cross-examination it was put to her that she spat in her hand five to ten times to lubricate her hand during her masturbation of him.  She said she had no such memory, but if it did happen, then he forced her to do it.

[84]        The reason for this gap in her memory of the bathroom incident went unexplained in the Crown’s case, but for this gap, A.S.’s evidence of the bathroom incident was quite detailed.  There may be many reasons why A.S., as an alleged victim of a sexual assault, would have such a gap in her memory.  I certainly do not fault her for having memory gaps, but it is not for me to speculate why such a gap exists.  This significant gap causes me to have some concerns about the reliability of her evidence regarding the bathroom incident.

[85]        Mr. Shields testified in the weeks following the incident that he kept his distance from A.S.  He did not wish to pursue a relationship with A.S.  The emails before me between the two are for the most part professional though some contain personal messages.  I find there is nothing in the evidence following the bathroom incident that either adds or detracts from his credibility.

[86]        Following the incident A.S. “filed it away” and went on with her career.  Like Mr. Shields I find nothing in their subsequent email correspondence that adds to or detracts from her credibility.  A.S.’s memories of the incident were refreshed when she read the Notice of Civil Claim of her former colleague.  She revealed the assault by Mr. Shields to others after reading the claim.  Her disclosure of the incident to others also followed the receipt of a letter from a physician requiring her to attend a medical examination or her disability benefits could be placed at risk.  It also came at a time when her partner, S.I., was under significant financial stress, his home had been foreclosed upon and the company he was the principal of was approximately $2,000,000 in debt.  I am not prepared to find that A.S. fabricated her allegations against Mr. Shields for financial motives, however A.S. was questioned about her and S.I.’s financial situation at the time.  A.S. responded that she was not under financial pressure at the time and that she has always been self-sufficient and fine with finances.  It was then pointed out to her that she declared bankruptcy in June of 1998 and she replied, “Oh my God, that was to do with my student loans.”  She made this statement, I find, to convey that such an event was minor and easily forgotten.  I would have expected an intelligent person such as A.S. to remember a declaration of personal bankruptcy.  This error raises a concern with me as to her reliability as a witness to recall past events.

[87]        I recognize the courage required by a sexual assault complainant to come forward and testify in a criminal trial.  However, as I earlier stated, a criminal trial is not a credibility contest between witnesses.  It is a trial to determine whether the charge has been proven beyond a reasonable doubt.  I have heard evidence of two different versions of what occurred in the bathroom in 2009.  Apart from concerns about the reliability of her evidence, A.S. provided an entirely plausible account of being sexually assaulted in the bathroom by Mr. Shields.  In contrast, Mr. Shields provided a believable account of a consensual sexual encounter with A.S.  I do have concerns about some of his evidence such as how he ended up in the bathroom with A.S.  However, when I consider his evidence in the context of all the evidence, these concerns are not sufficient for me to reject his evidence.  After analysing all the evidence, his evidence raises a reasonable doubt in my mind against A.S.’s subjective assertion that she did not consent to the sexual touching in the bathroom.  Accordingly, the law requires me to find you not guilty of the charge and I so do.  Given my conclusion there is no need to consider whether the defence of honest but mistaken belief in consent applies.