IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On Saturday, October 13, 2018, 14-year-old S.F. was hanging out with her best friend, S.L.  S.L. was 15 years old and in an intimate relationship with T.T.  S.L. took S.F. to spend an evening with T.T. at his residence in Burns Lake, BC. There they watched movies, listened to music, played cards, and drank Twisted Tea. T.T. shared his residence with a number of other young people, one of who was 16 year old C.Z.

[2]         At various points in the evening T.T.’s male friends and roommates dropped by his residence to socialize. As the evening wore on S.F. and S.L. became increasingly intoxicated to the point of vomiting. Although unplanned, the girls stayed the night at T.T.’s residence. S.L. went to bed with T.T. in his bedroom. S.F. went to bed in C.Z.’s room. S.F. claims while alone with him, C.Z. forcibly removed her clothing and sexually assaulted her in various highly intrusive ways. He ignored her repeated demands he stop. Ultimately, S.F. was able to fend him off and C.Z. gave up trying to have sex with her. C.Z. threatened to tell S.F.’s boyfriend it was her fault if she were to tell anyone about the incident. Eventually, S.F. fell asleep in C.Z.’s bed. When she awoke S.F. told a number of people, including her mother, that C.Z. had forced sex on her. S.F.’s mother immediately reported the incident to the police.

[3]         C.Z. denies he touched S.F. in any sexual manner in the early hours of October 14, 2018, or at any time. He says he felt badly for S.F. when she came to his room crying and upset as a result of a row with S.L. At most he gave S.F. a brief and awkward hug in an attempt to comfort her.

[4]         The issue before the Court is whether C.Z. sexually assaulted S.F.

[5]         This matter came on for hearing before me on October 21 and 22, 2019, December 10 and 11, 2019, February 13, 2020, and July 13, 2020. On behalf of the Crown, I heard oral evidence from S.F., S.L., T.T., J.L., R.F., and Constable Wiksyk.

[6]         On behalf of the Defence, I heard oral evidence from C.Z.

[7]         I received into evidence the following exhibits:

[8]         The evidence concluded on February 13, 2020, and counsel scheduled closing submissions on April 30, 2020 and a decision date of May 1, 2020. These dates were cancelled as a result of the COVID-19 pandemic. Closing submissions proceeded on July 13, 2020. The Crown provided the Court with the following case authorities: (a) R. v. Corneau, 2019 BCSC 2349; (b) R. v. Hogg, 2013 PECA 11; (c) R. v. Hogg, 2014 SCC 18; (d) R. v. MRE, 2020 BCPC 19; (e) R. v. PW, 2003 BCCA 542; and (f) R. v. Swain, 2019 BCSC 1300. When counsel completed their closing submissions on July 13, 2020, I reserved my decision. These are my reasons for judgment.

[9]         In these Reasons for Judgment I will generally refer to the witnesses by the first names. In doing so, I mean no disrespect or undue familiarity. I do so for narrative convenience and because this is how the young people referred to one another.

[10]      On October 21, 2019, the Crown opened its case with a voir dire under s. 715.1 of the Criminal Code seeking the admissibility of S.F.’s October 14, 2018 recorded statement as part of her direct evidence. The Crown called two witnesses on the admissibility voir dire, the complainant, S.F.; and Constable Wiksyk, the officer who took S.F.’s October 14, 2018 statement.

[11]      I determined the Crown had established on a balance of probabilities the first four statutory prerequisites for the admissibility of S.F.’s October 14, 2018 recorded statement. Specifically, I found:

[12]      Upon finding the Crown had satisfied the first four statutory prerequisites, I went on to consider whether I ought to otherwise exclude S.F.’s recorded statement on the basis its admission into evidence would interfere with the proper administration of justice. The defence raised concerns with Constable Wiksyk’s use of leading questions in the recorded statement. The Crown characterize the impugned questions as “clarifying” rather than “leading.”

[13]      Referencing R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, R. v. F. (C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, and R. v. W.D.A.Z. (Y.C.J.A.), 2018 BCCA 180 (CanLII), I determined the recorded statement’s probative value outweighed any prejudicial effect arising from the manner in which Constable Wiksyk posed his interview questions. In reaching this conclusion, I considered the following factors L’Heureux-Dubé J. in L. (D.O) said a trial judge ought to take into account when exercising his or her discretion to exclude a witness’s recorded statement:

[14]      I also noted Justice Cory’s comment in F.(C.) that the cases where admission of the recorded statement would result in unfairness to the accused would be relatively rare. He states at para. 52:

[15]      In considering the impact of the recorded statement on the administrative of justice in this case, I found:

[16]      Finally, in assessing whether S.F.’s recorded statement ought to be admitted into evidence in the trial proper, I was mindful that s. 715.1 is a remedial provision intended to enhance the court’s truth-seeking function in criminal proceedings involving a young complainant who has suffered sexual abuse: L.(D.O.), para. 36. Section 715.1 seeks to include the experience of young complainants in the criminal justice system while ensuring that an accused person’s right to a fair trial is carried out in accordance with the principles of fundamental justice. While the primary purpose of s. 715.1 is the attainment of truth, the section is particularly focused on the needs of children and youth and the special protections that they require in order to expose that truth.

[17]      I concluded the admission of S.F.’s recorded statement in evidence would not interfere with the proper administration of justice. The exhibits on the voir dire became exhibits in the trial proper. With the consent of the parties the admissible evidence heard on the voir dire became evidence in the trial proper.

[18]      I have set out below the relatively uncontentious background facts gleaned from all the witnesses who appeared before me.

[19]      In October 2018, C.Z. was 16 years old. He lived in a house at [omitted for publication] in Burns Lake, BC (“the Residence”) with T.T., B.L.C., J.L., D.W., and B.L.C.’s boyfriend, S.S. B.L.C. was T.T.’s older sister and the principal tenant of the Residence. At the time of the offence, T.T. was 19, D.W. was 20, and J.L. was 17. I do not have evidence of the ages of B.L.C. or S.S., but I gather they were also young adults. The young people generally referred to B.L.C. as “B.”

[20]      The split level Residence had an upstairs and downstairs suite. The downstairs consisted of a semi-combined kitchen and living room area, bathroom, laundry room, and two bedrooms, one of which belonged to T.T. and the other to J.L. The upstairs consisted of a kitchen, living room, bathroom, and three bedrooms, one of which belonged to T.T.’s sister, B.L.C., one to D.W. and the other to C.Z.

[21]      At the time of the offence, C.Z. was in Grade 10 attending the [omitted for publication] School. C.Z. and S.F. knew each other from school, but were not close friends. C.Z., and his girlfriend, CR, and S.F. belonged to the same friend group. S.F. saw CR as a close friend; C.Z. regarded them as mere acquaintances.

[22]      C.Z. had been living at the Residence since the beginning of June 2018. He had moved into the small upstairs guest bedroom without any formal arrangement. He did not pay rent, however, his parents supplied groceries which he shared with other residents. C.Z. moved a queen size bed, a television and chair into the guest room.

[23]      In October 2018, S.F. was 14 years old. She is the daughter of R.F. S.F. has two siblings, a 13-year-old brother, and an eight-year-old sister. R.F. and her children are members of the [omitted for publication] First Nation. At the time of the offence, S.F. was in Grade 9 at [omitted for publication] School. S.F. and her family moved to Burns Lake when she was in Grade 8.

[24]      In October 2018, S.F. had recently struck up a friendship with S.L., who had just turned 15 and in Grade 10 at [omitted for publication] School. Like S.F., S.L. had moved to Burns Lake with her family when she was in Grade 8.

[25]      S.L. still lives with her mother and little brother. At the time of trial, S.L. was 16 years old and in Grade 11. S.L. and S.F. are no longer close friends for reasons unrelated to these proceedings.

[26]      S.L. describes T.T. as her boyfriend. At the time of the offence they had been a couple for about a month. S.L. was a frequent guest at the Residence since she and T.T. began an intimate relationship.

[27]      S.F. had a boyfriend, L.S., who was also a good friend to C.Z. S.F. had never met T.T. before October 13, 2018, and had never been to the Residence.

[28]      On October 13, 2018, S.F. and S.L. had agreed via Snapchat to spend the evening together. R.F. dropped S.F. off at the Dragon Palace Restaurant in Burns Lake, where S.L. was having dinner with her mother and little brother. Twenty minutes later, S.L.’s mother dropped S.L. and S.F. at the Residence. The girls didn’t plan to spend the night at the Residence, but S.L. often did.

[29]      When S.L. and S.F. arrived at the Residence, T.T.’s roommate, J.L. was also present. [Omitted for Publication].

[30]      Over the course of the evening of October 13, 2018, the impromptu socializing at the Residence morphed into a small gathering, with various young people coming and going. The party goers watched movies, listened to music, drank alcoholic beverages, and played cards and video games. At various times in the evening, D.E., D.P., D.W., K.P., M.B., and D.G. came and went. C.Z. also made two cameo appearances throughout the evening, but spent most of his time playing video games in his room. C.Z. was the only person present at the Residence that evening who was not drinking.

[31]      T.T. and D.W. or J.L. returned from the liquor store with two or three cases of Twisted Tea containing 12 cans each. The cans were the size of an average pop can and contained about 5% alcohol. Later T.T.’s cousin, D.E. showed up with a bottle of Cinnamon Fireball whisky from which various people took shots.

[32]      The party goers became intoxicated to varying degrees, S.F. and S.L. to the point of vomiting. Ordinarily a quiet and shy girl, S.F. became loud and talkative. Her vision blurred and she had difficulty speaking coherently or maintaining her balance. She fell off the chair on which she was sitting and, on one occasion, fell down a full flight of stairs.

[33]      As the evening wore on, S.L. became upset at T.T. and S.F. and left the Residence and T.T. followed her.

[34]      After the party wound down, S.F. went into C.Z.’s room to lie down. S.L. and T.T. came up to C.Z.’s room and S.L. apologized to S.F. for her earlier upset. S.L. and T.T. returned downstairs and S.F. remained behind in C.Z.’s room. S.F. sat on C.Z.’s bed, watched him play Fortnite, talked to him and used her cell phone. When C.Z. finished his video game, he sat on the opposite side of the bed from S.F. and they watched YouTube. Eventually S.F. and C.Z. fell asleep fully clothed on C.Z.’s bed.

[35]      S.L. and T.T. slept in his downstairs bedroom. J.L. slept in his own room. It is not clear if B.L.C., D.W., and/or S.S. were sleeping in the upstairs rooms as well.

[36]      S.F. got up late the next morning before C.Z. She told S.L. that during the night, C.Z. had sexually assaulted her. S.F. asked S.L. not to tell anyone. In the afternoon on October 14, 2018, at S.L.’s urging, S.F. told T.T. that C.Z. had sexually assaulted her. T.T. became angry. He and S.L. went back to the Residence and T.T. confronted C.Z. with S.F.’s accusations and ordered him to pack his bags and leave.

[37]      When she arrived home on October 14, 2018, S.F., after some hesitation, told her mother she had been sexually assaulted and R.F. notified the police. Late that evening R.F. took S.F. to the hospital for a sexual assault examination and then to the police station to provide a statement. S.F. did not want to make a statement to the police. She was scared and wanted to keep the incident a secret.

[38]      S.F. also told L.S. and CR what had happened. When C.Z. woke up in the early afternoon of October 14, 2018, he learned from various friends over social media he was accused of raping S.F.

[39]      I have set out below evidence particular to a specific Crown witness.

[40]      As indicated above, at the time of the offence, S.F. was 14 years old. She is a member of the [omitted for publication] First Nation.

[41]      On October 13, 2018, S.F. went to T.T.’s residence with S.L. with the expectation they would be drinking alcohol. She believes she drank most of a 24-pack of Twisted Tea. In addition, she had a few shots of the Cinnamon Fireball whisky.

[42]      S.F. and S.L. were dancing and listening to music and C.Z. was downstairs watching them. S.F. says after she vomited S.L. asked C.Z. to take S.F. to a place where she could lay down. C.Z. suggested S.F. come to his room. He helped S.F. up the stairs by placing his hand over her shoulder and holding her hand. When they got upstairs, C.Z. gave her a glass of water. S.F. checked her phone and it was 2 am.

[43]      S.F. and C.Z. begin talking about Fortnite and he asked if her boyfriend, L.S., played that video game. C.Z. then moved on to discuss S.F.’s admiration of his hand veins. Apparently, S.F. told C.R. she admired his hand veins, and C.R. shared this information with C.Z.

[44]      At around 3:00 a.m. (on October 14, 2018), after S.F. admitted to C.Z. she thought his hand veins were hot, and he began flexing to show his muscles. C.Z. asked S.F. if she ever thought of having sex with him. She said, “No.” He asked, “Why not?” S.F. said she was not ready to lose “it” meaning her virginity. He said, “Wouldn’t you want your first time to be with your crush?” S.F. replied, “No.”

[45]      C.Z. began tracing his fingers along S.F.’s outer thigh, working his way to her inner thigh. He progressed to kissing her chest, giving her a painful hickey on her abdomen just below her chest, shoving his hands down her pants and digitally penetrating her vagina. He forcibly removed S.F.’s pants and underwear and began performing cunnilingus. Throughout this incident S.F. repeatedly told C.Z. to stop. She told him she had a boyfriend; he told her to trust him. He said “Let me treat you better than L.S. will”; he promised S.F. it “wouldn’t hurt and it would be fast, quick like in and out thing . . . Nobody will know.” S.F. said they would know because she would tell her mother “and everyone about it” because what he was doing was wrong. C.Z. said she had better not tell anyone because he would tell her boyfriend that it was her fault. C.Z. ignored S.F.’s ongoing protests. She was lying on her back and tried to sit up, but C.Z. put her knees on his back and held her down with his hands forcing her to lie on her back preventing her from sitting up. At this point he had removed his sweat pants and underwear.

[46]      C.Z. grabbed S.F.’s wrists, pinned her to the bed and attempted to insert his penis in her vagina, albeit unsuccessfully. In order to do so, he had to let go of S.F.’s wrists and she was able to use her hands and feet to push him off her. C.Z. got angry and started yelling at her. One of the things he yelled was, “why the fuck aren’t you having sex with me.”

[47]      Eventually C.Z. gave up trying to having sex with S.F. He went and retrieved a blanket and pillow and laid down on the opposite side of the bed from S.F., who got dressed and fell asleep. They had no further interaction or sexual contact. C.Z.’s unwanted sexual actively lasted “an hour or two.” At no time did S.F. invite C.Z. to have sex with her.

[48]      S.F. set her alarm for 10 a.m. because she and S.L. were fighting at the time, S.F. was worried S.L. might get up in the morning and leave without her.

[49]      S.F. arose and went downstairs around noon on October 14, 2018. She took S.L. by the hand and said, "I need to tell you something and you can't tell anybody." She seemed upset and her voice was shaky. S.F. lifted her shirt and showed S.L. the small dark bruise in the middle of her chest where C.Z. had given her a hickey. She disclosed to S.L. that C.Z. forced himself on her and said if she told anybody he would tell her boyfriend (L.S.) that it was all her fault.

[50]      S.L. counselled S.F. to tell someone about the incident, but agreed to remain silent until S.F. was ready to talk about it.

[51]      Late in the afternoon of October 14, 2018, T.T. dropped S.L. and S.F. off at S.L.’s apartment, where they remained for a while. When S.F. brought up the assault again, S.L. encouraged her to tell T.T., given it occurred in his home. S.F. agreed and told T.T. about the incident.

[52]      S.L. was born on [omitted for publication]. She was 16 and in Grade 11 at the time of trial and barely 15 at the time of the offence. She identifies as First Nations. On October 13, 2018, S.L. and S.F. were new friends.

[53]      S.L. acknowledges she had been drinking on the evening of October 13, 2018, to the point of vomiting. S.L. had never drank alcohol before that evening and had not planned on doing so. She estimates she drank one and one-half cans of Twisted Tea and no hard liquor. S.L. is particularly sensitive to alcohol and cannot and does not drink much or often.

[54]      After a couple of hours of socializing S.L. became tired and wanted to go to bed. She went into T.T.’s bedroom while T.T., S.F., and the other partygoers remained in the kitchen. S.L. tried to get S.F. to come with her - repeatedly. S.L. was concerned at S.F.’s level of intoxication and the fact the house was still populated with a number of young males who were drinking alcohol. S.L. felt responsible for keeping S.F. safe. S.F. went with S.L. briefly, then left T.T.’s bedroom where S.L. was laying down to return and join the party guests.

[55]      Sometime during the evening, S.L. became frustrated at S.F.’s refusal to remain with her in T.T.’s room. Also, S.L. became a little jealous at T.T. whipping S.F.’s thigh with his key chain, an action S.L. considered flirtatious. S.L. began arguing with S.F. and T.T. S.L. left the Residence and T.T. followed her. S.L. and T.T. went for a walk and returned to the Residence about 30 minutes later around midnight. S.L. and T.T. went and sat in the upstairs living room alone to discuss S.L.’s upset. After 15 minutes or so, S.L. and T.T. headed downstairs. On their way they encountered S.F. following C.Z. upstairs toward C.Z.’s bedroom.

[56]      Shortly after encountering S.F. and C.Z. on the stairs. T.T. told S.L. that she had overreacted and she needed to apologize to S.F. S.L. went into C.Z.’s room. C.Z. was sitting on a chair playing a video game. S.F. was lying on C.Z.’s bed fully clothed watching him. S.L. apologized to S.F., who started crying. S.L. and T.T. went back downstairs to sleep in T.T.’s room, leaving S.F. to sleep in C.Z.’s bedroom. When she departed, S.L. thought S.F. was “fine,” meaning she was not behaving in the intensely intoxicated manner she had earlier that evening. S.L. did not know when she and T.T. went to sleep other than to say it was “really late.”

[57]      The next morning, while T.T. was up cooking breakfast, S.F. came into T.T.’s room upset. S.F. told S.L. she had something to tell her, but she couldn’t tell anyone. S.F. was nervous and stuttered. S.L. agreed to keep her secret. S.F. lifted her shirt and showed S.L. a dark hickey-type bruise below her chest and said, "C.Z. forced himself on me and told me that if I told anybody about this he would tell my boyfriend L.S. that it was all my fault." S.F.’s voice was shaky and she sounded as though she wanted to cry.

[58]      At around suppertime, T.T. dropped off S.L. and S.F. at S.L.’s apartment. S.F. asked S.L. if she should tell anyone about the assault. S.L. encouraged her to at least tell T.T. what had happened. They invited T.T. over and after some time S.F. told him that during the previous night C.Z. sexually assaulted her. T.T. became angry. He and S.L. went back to the Residence, leaving S.F. behind at S.L.’s apartment. S.L. heard T.T. asked C.Z. why he “had done that.” C.Z. seemed confused and said little in response. T.T. told C.Z. he needed to leave after which, “C.Z. was just defending himself.”

[59]      T.T. and S.L. were at the Residence for about 20 minutes, after which they went to the Town Pantry, bought S.F. some chocolate milk and returned to S.L.’s apartment. S.L. and T.T. encouraged S.F. to report the sexual assault to her parents and the police.

[60]      S.F. and T.T. spent the night with S.L. at her home. The three of them slept in S.L.’s bed. S.F. left the following morning – which would have been October 15, 2018.

[61]      T.T. was 20 years told at the time he testified at trial. He was 19 at the time of the offence. He is a member of the [omitted for publication] First Nation.

[62]      T.T. describes C.Z. as a friend who he considered “a little brother.” They remain friends despite the incident giving rise to the allegations before the court.

[63]      When T.T. got home after work on October 13, 2018, he noted that B.L.C. and D.W.’s vehicles were in the driveway and J.L. and C.Z. were in their respective rooms. He was unsure if B.L.C. was home that evening or at work. For a while, T.T. played video games in his room, then he and D.W. went to the liquor store where T.T. bought a case or two of beer and D.W., a case of Twisted Tea. When they returned T.T. returned to playing video games in his room. A few hours later, S.L. showed up at the Residence with some food and S.F. At some point, J.L. offered S.L. and S.F. a drink, which they accepted. After that, the young people just “kept playing cards and drinking.”

[64]      T.T. said he would not describe S.L. and S.F. becoming wild, but they were “definitely intoxicated.” They were talkative, laughing, and loud. He believes S.L. drank 2 or 3 cans of Twisted Tea. T.T. does not recall S.F. losing her balance or falling or having difficulty speaking or becoming ill from consuming too much alcohol. He said there was not much alcohol and it was being shared with everyone present except C.Z., who doesn’t drink.

[65]      T.T. was drinking, but not a lot and not quickly. He has no recollection of S.L. being angry or upset at him or S.F. or apologizing to S.F.

[66]      Around midnight or so, T.T. told the party goers it was time for bed as B.L.C. had to work in the morning. T.T. went upstairs to talk to C.Z. about something and discovered S.F. in C.Z.’s bedroom. S.F. and C.Z. were sitting on the bed watching YouTube or playing video games. They were sitting far away from each other, not touching. This is the first time that evening T.T. observed C.Z. and S.F. interact with each other.

[67]      T.T. told S.L. of S.F.’s whereabouts and they returned to C.Z.’s room to tell S.F. she had to come downstairs because they were going to bed. S.F. needed to stay with S.L. in T.T.’s room. S.F. refused to go. T.T. testified:

[68]      T.T. was in C.Z.’s room for only five or ten minutes. After leaving S.F. in C.Z.’s room he and S.L. went for a walk to the Town Pantry to purchase some snacks. When they returned, all the partygoers had left or were in their respective bedrooms either sleeping or playing games or watching YouTube. T.T. and S.L. put on a movie and went to bed.

[69]      The next morning at about 7 a.m. T.T. received a text message from S.F. asking him if he and S.L. were awake. He turned off his phone and went back to sleep until about 11:30 a.m. or 12 p.m. When he awoke he saw S.F. up and going into the washroom. He did not speak to her at that time. After breakfast he drove S.L. and S.F. to S.L.’s home.

[70]      Shortly after dropping off the girls, T.T. received a text from S.L. saying there was something she had to tell him. T.T. returned to S.L.’s apartment about a half hour later. S.F. told T.T. about the sexual assault. He described her as appearing “stressed.” Her voice was shaky and she seemed hesitant to talk about the incident.

[71]      After about 15 minutes, T.T. and S.L. drove back to his house to confront C.Z. with the allegations. T.T. testified:

[72]      T.T. said during this conversation C.Z. seemed a bit nervous. He was looking down and would not look at T.T. Ordinarily, when he and C.Z. hang out, they are usually “outgoing, talking to each other and messing around, roughhousing a little bit.”

[73]      J.L. was 17 at the time of the offence. He too is a member of the [omitted for publication] First Nation.

[74]      On October 13, 2018, J.L. was living at the Residence. He was just finishing his high school year. J.L. believed his roommates at the time included T.T., B.L.C., C.Z., D.W., and S.S.  J.L. describes C.Z. as “one of his really good friends.” S.F. was a relatively new acquaintance as she had only moved to Burns Lake a year or so prior to the offence date.

[75]      J.L. recalls that during the gathering at the Residence on October 13, 2018, both S.L. and S.F. became quite intoxicated. He described S.F. as intermittently showing signs of sobriety or intoxication. When playing cards at the kitchen table, S.F. repeatedly fell off the wheelie chair she had been sitting on. She also fell in the living room while fixing her makeup in the mirror. J.L. did not see S.F. fall down the flight of stairs.

[76]      At some point in the evening, J.L. recalls C.Z. coming downstairs for a brief period. For most of the evening C.Z. remained in his upstairs room. C.Z. doesn’t drink and does not like to be around people who are drinking. J.L. watched C.Z. go into the stairwell alone. Five or ten minutes later, J.L. saw S.F. disappear into the stair well. After some time S.F. returned downstairs and resumed playing cards. She exhibited no sign of upset or distress.

[77]      Shortly after midnight J.L. became bored being downstairs and went upstairs to check on C.Z. He found C.Z. sitting on his bed crying and asked him what was wrong. C.Z. told him he could not believe he kissed S.F. J.L. said to C.Z., “Don’t you have a girlfriend?” and C.Z. responded, “Yeah, I know, that was what I was thinking.” C.Z. said he told S.F. she could stay in his room for the night and he would go and sleep on the couch. C.Z. said he would give S.F. a blanket and she could stay there and he grabbed another blanket so he could sleep on the couch.

[78]      J.L. went downstairs and told T.T. that C.Z. wasn’t feeling that great and asked him to go upstairs and speak to him. After giving a “big sigh,” T.T. agreed and went upstairs for 10 to 15 minutes to speak with C.Z. When T.T. returned downstairs, J.L. asked T.T. if he had figured things out with C.Z.

[79]      J.L. believed that S.F. left the Residence later that evening. Neither he nor B.L.C. typically allow people to overnight in their home. J.L. saw S.F. leave the residence late in the evening of October 13/14, 2018, and not return.

[80]      J.L. gave a statement to the police within a few days of the incident.

[81]      R.F. is S.F.’s mother. She is a member of the [omitted for publication] First Nation who had grown up in the Burns Lake area. For several years she lived in [omitted for publication] BC, but returned with her family to Burns Lake area in recent years. She currently works with [omitted for publication].

[82]      On the evening of October 13, 2018, R.F. was home with her two younger children. At that time they lived out of town on [omitted for publication]. She understood S.F. was having a sleepover in town (Burns Lake) with her friend, S.L.

[83]      Throughout the evening of October 13, 2018, R.F. was in communication with S.F. by texting on their respective cell phones. R.F. stated:

[84]      The following day, on the afternoon of October 14, 2018, R.F. received a call from S.F. Her daughter said she wanted to come home and had something to tell her. S.F. arrived home a few hours later. She seemed sad, hugged R.F. and went upstairs.

[85]      At no time prior to her phone call on October 14, 2018 afternoon, did S.F. text R.F. and ask her to come and pick her up or tell R.F. that she wanted to come home.

[86]      R.F. went into daughter’s room and sat on her bed. S.F. was not her usual cheerful and chatty self. After a couple of hours, S.F. began to cry and told her mother about C.Z. assaulting her.

[87]      R.F. called 911 and reported the incident. She took S.F. to the hospital where R.F. was examined by Dr. Williams. After the examination, R.F. took S.F. to the police detachment where both R.F. and S.F. gave statements.

[88]      A few days after taking S.F. to the hospital, R.F. took the photographs marked as Exhibit 5 in these proceedings.

[89]      C.Z. testified on his own behalf. He remembers the evening of October 13, 2018. He believes he went downstairs during the social gathering briefly on two occasions. He does not drink and does not like being pressured to do so. C.Z. was downstairs talking to T.T. when S.L. and S.F. arrived. He estimates this was between 8 p.m. and 8:30 p.m. C.Z. is a gamer and returned to his room upstairs to play Fortnite on his X-Box. Later that evening C.Z. went downstairs again to retrieve his IPod. At that time he noticed that S.L. and S.F. were intoxicated.

[90]      Around 1:00 a.m. C.Z. heard S.L. angrily yelling at T.T. downstairs. She was accusing him of touching S.F.’s thigh. About four or five minutes later, S.F. came into his room and sat on his bed. C.Z. was sitting on the edge of his bed playing his video game. S.F. was very upset and intoxicated. She tried to tell C.Z. what had happened between her and S.L., but was sobbing and he had difficulty understanding what she was saying. C.Z. finished his game and went and sat on the chair in his room facing her.

[91]      C.Z. stood up briefly from his chair. He went over to S.F., who was sitting on his bed. He gave her a comforting hug and returned to his chair. This is the only physical contact he had with S.F. that evening.

[92]      While she was in his room, S.F. watched C.Z. play his video game and then they watched YouTube. C.Z. was sitting on his chair and S.F. was sitting on his bed with her back up against the wall. Both were fully clothed; they talked. C.Z. had been told that S.F. had a crush on him.

[93]      After a while S.F. put down her phone, closed her eyes and went to sleep. C.Z. continued to watch YouTube. After a while, he went and lay down across the foot of the bed, fully clothed. C.Z. and S.F. slept in an “L” pattern. They had no contact during the night. J.L. did not come to C.Z.’s room that evening.

[94]      C.Z. awoke the following day to T.T. barging in his room, hurling S.F.’s accusations at him and demanding he pack his things and leave the Residence immediately. T.T. did not ask C.Z. what had happened nor invite him to tell his side of the story. He just ordered C.Z. to leave. C.Z. did not tell T.T. he had kissed S.F.

[95]      After T.T. told C.Z. he had to leave, J.L. came to his room to check on him. It was now about 4 p.m. on October 14, 2018. J.L. asked C.Z. what had happen. C.Z. told him that S.F. had come up to his room to “hang out” and she fell asleep. He did not tell J.L. he had kissed or hugged S.F. C.Z. did not deny he was crying when J.L. came to see him that afternoon.

[96]      The relevant sections of the Criminal Code for the offence of sexual assault are set out below:

[97]      Pursuant to s. 150.1 of the Criminal Code, consent is not a defence to a charge of sexual assault against a complainant under the age of 16 years, except in certain limited circumstances. Section 150.1 of the Criminal Code provides, in relevant part, as follows:

[98]      The Crown must prove all the elements of the offence of sexual assault beyond a reasonable doubt before the Court can make a finding of guilt. The static elements for any criminal offence are: (a) the identity in the sense that the person standing in the courtroom is the person who is alleged to have committed the offence; (b) the jurisdiction of the Court over the person accused; and (c) the timing of the offence. In this case there is no issue:

[99]      The five essential elements of the offence of sexual assault are as follows:

[100]   The fundamental issue in the Crown’s case is the wrongful act. S.F. claims C.Z. touched her in a sexual nature without her consent. C.Z. denies touching S.F. in any manner except to give her a comforting hug when she was sobbing. As C.Z. denied having touched S.F. sexually in any manner, actual consent or mistaken belief in consent is not in issue.

[101]   In order to determine liability, I must assess what evidence I find reliable and credible. As Justice Cory commented in R. v. S. (R.D.), 1997 CanLII 324 (SCC), assessing the credibility of a witness is more of an ‘art than a science.’ It is a task that can be particularly daunting where, as in this case, a court must assess the credibility of two witnesses whose testimony is diametrically opposed.

[102]   Reliability and credibility are not the same. Reliability involves the accuracy of the witness’s testimony. It engages consideration of the witness’ ability to observe, recall, and recount: R. v. Sanichar, 2013 SCC 4. Credibility, on the other hand, concerns the veracity of a witness. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes.

[103]   Assessing credibility engages a number of factors, including: (a) the plausibility of the witness’s evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent, (f) the witness’s demeanour while testifying.

[104]   In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord different weight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

[105]   It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is credible may nevertheless be unreliable: R. v. Morrissey, 1995 CanLII 3498 (ON CA).

[106]   The Court heard from four teenage witnesses, including: S.F., S.L., J.L., and C.Z. Although they were engaged in adult activities at the time of the offence, they were not adults. The Supreme Court of Canada recognizes children and youth experience the world differently from adults. Judges must not impose the same “exacting standards” in assessing the evidence of an adolescent as they do when assessing the testimony of an adult: B. (G), para. 48. This is not to say the court lowers the standard of proof when dealing with adolescents. It remains the same proof beyond a reasonable doubt. Still, when assessing the credibility of an adolescent, the court must take a common sense approach and not simply apply the standard of a “reasonable adult.” A flaw in an adolescent’s testimony should not be given the same effect as a similar flaw in an adult witness.

[107]   The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crown to prove the essential elements of the offences charged beyond a reasonable doubt. In MRE, Judge Skilnick explains reasonable doubt:

[108]   As in most cases involving sexual offences there are two key witnesses, the complainant and the accused. Where there is little or no corroborating evidence, the court is left with irreconcilable versions of the same events. A judge cannot reach a verdict by simply deciding which conflicting version of events he or she prefers. A criminal trial is not a credibility contest. It is a trial to determine whether the Crown has proven the accused’s guilt of the offences charged beyond a reasonable doubt.

[109]   In R. v. W.(D), 1991 CanLII 93, the Supreme Court of Canada provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the concept of reasonable doubt to issues of credibility. Recently, the Alberta Court of Appeal in R v Ryon, 2019 ABCA 36, para 51, and R v Achuil, 2019 ABCA 299, at para.18 recast the W.(D) analysis into the following four-part framework:

[110]   The trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. An accused’s evidence is not examined in isolation. When assessing the accused’s evidence, I must consider it in light of the evidence of all the witnesses to determine whether it raises a reasonable doubt.

[111]   In this case, S.F. accused C.Z. of sexually assaulting her which C.Z. flatly denies. C.Z. is entitled to deny S.F.’s accusations without being subjected to any adverse findings. If there was no sexual touching, then what more can C.Z. say other than he did not do it? In MRE, Judge Skilnick sets out how a trial judge assesses the accused’s evidence where they simply deny the offence occurred:

[112]   I find S.F.’s capacity to observe, recall, and recount some of the events to which she testified enfeebled by her intoxication at the time of the offence and the passage of time since. By the time she testified at the trial, S.F. had forgotten many peripheral aspects of the evening of October 13/14, 2018. The question I must answer is whether she has truthfully and accurately recounted those details she does recall.

[113]   There is nothing inherently implausible about S.F.’s description of the sexual assault, although there is one aspect which made me ponder. S.F. says she was actively resisting C.Z.’s attempts to have sex with her, an assault which carried on for “an hour or two.” Eventually, C.Z. became angry and started yelling at her, saying, “Why the fuck aren't you having sex with me.” There were a number of people in the Residence at the time of the incident. T.T., S.L. and J.L. were downstairs. It is not clear to me whether D.W. or S.S. were present in the upstairs bedrooms. B.L.C. may have also been present as T.T. said he shut down the party because B.L.C. had to work the next day and he didn’t want her disturbed by the music or people talking.

[114]   I understand from C.Z.’s evidence that while in his room, he could hear S.L. yelling at T.T. downstairs, which suggests the residence was not particularly sound proof. Yet, there is no evidence from any person present of having heard any commotion or yelling emanating from C.Z.’s room. However, I gather from T.T.’s description of the layout of the Residence, C.Z.’s room was not in close proximity to the other upstairs bedrooms. I do not know if C.Z.’s door was open at the time he overheard S.L. yelling at T.T. Also T.T. testified that when he and S.L. went to bed they watched a movie before going to sleep. It is conceivable a movie may have drown out any ambient noise.

[115]   I do find it unlikely that S.F. drank most of a 24-pack of Twisted Tea, given her size and inexperience and the fact it would have left little alcohol for the other partygoers, including those who purchased it. Nevertheless, it is uncontested S.F. drank enough alcoholic beverages to become very intoxicated.

[116]   C.Z.’s evidence there was no sexual activity diametrically opposes S.F.’s evidence.

[117]   In her statement, S.F. thought T.T. had picked up her and S.L. and drove them to the Residence. S.L. says her mother dropped them off. S.F. acknowledged she went with S.L. to T.T.’s residence with the expectation of consuming alcohol, although she could not remember if she discussed this with S.L. beforehand. S.L. said it was not her intention to consume alcohol and did not discuss this possibility with S.F. Whereas S.F. said she drank most of a 24-pack of Twisted Tea, S.L. recalls her drinking between four and five cans, but concedes it could be more.

[118]   In her statement S.F. stated that during the gathering C.Z. was watching her and S.L. dancing and singing. She agrees C.Z. was sober and not drinking. The preponderance of the evidence from other witnesses indicates C.Z. spent very little time at the gathering or interaction with S.F. prior to her coming up to his bedroom. S.F. says S.L. asked C.Z. to take S.F. to lay down. Neither S.L. nor any other witness attested to this conversation. In fact, S.L. says around midnight when she and T.T. were heading downstairs they encountered S.F. and C.Z. heading upstairs. At trial, S.F. had no specific recollection of interacting with C.Z. prior to going up to his room beyond one occasion when he came downstairs where the young people were socializing. S.F. could not say when that occurred or how long C.Z. stayed downstairs or even if he came into the room where she socializing.

[119]   Despite the fact they had little interaction during the evening, it makes sense to me that S.F. would go to C.Z.’s room to lie down. At that point, S.L. was angry and jealous and arguing with T.T. and S.F.  S.L. had left the Residence and T.T. followed her. When S.L. and T.T. returned, they went upstairs to discuss their issues privately. S.F. was still downstairs. She was upset and sick and tired and wanted to lie down. She was worried that S.L. was going to leave without her. C.Z. was sober, someone she knew and someone who was showing her some kindness.

[120]   C.Z. agrees the S.F. came to his room late, after midnight, perhaps around 1 a.m., about four or five minutes after S.L. had begun yelling at T.T. for flirting with S.F. C.Z. describes S.F. as still very drunk, slurring her words, staggering to the point she could barely walk. He confirms that S.F. was “really upset”; she was sobbing with tears running down her face. He also agreed that approximately 20 minutes later when S.L. and T.T. came to his room S.F. had stopped crying and was starting to sober up.

[121]   Although, C.Z. denies having any sexual contact or sexualized conversation with S.F., he does admit to or does not dispute certain aspects of S.F.’s evidence. He agrees S.F. was awake in his room for an hour or two before she fell asleep in his bed. In her statement, S.F. says, “And told him I had a boyfriend and I'm drunk and he's not and he started taking off my clothes and he gave me a hickey.” In cross-examination C.Z. agreed S.F. said to him that she was drunk and he was sober, but denies it was in relation to him asking her to have sex with him. S.F. says C.Z. asked her, “Wouldn't you want your first time to be with your crush.” Although C.Z. denies making any such statement, he did agree that C.R. talked to him about S.F. and that he was told S.F. had a crush on him. C.Z. said he could not remember making any comments about his hand veins.

[122]   S.F. says after the assault C.Z. left the room to get a blanket and pillow and she got up and got dressed and then returned to his bed and went to sleep. Although she had with her an operable phone, she did not use it to seek help; although she was free to come and go at anytime during the evening she did not do so. R.F. said S.F. texted her at about 11 p.m. on October 13, 2018. T.T. says S.F. texted him the following morning at 7 a.m. asking him if he and S.L. were awake. When he received the early text T.T. shut off the phone, rolled over and went back to sleep. It was closer to noon on October 14, 2018, when S.F. came downstairs and told S.L. what had happened.

[123]   The fact that S.F. did not seize the earliest opportunity to escape C.Z.’s room or use her phone to seek help may suggest she was not as frightened as she asserts, and the assault did not happen. To draw such an inference from this post-incident conduct risks stereotyping about how victims of sexual assault will behave: Swain, at para. 49, Corneau, at para.135 citing R. v. Cepic, 2019 ONCA 541. The medieval doctrine requiring victims of sexual assault to raise an immediate “hue and cry” has long been abrogated by s. 275 of the Criminal Code. In any event, in viewing the situation from her perspective, S.F.’s passivity is understandable. At the time of the alleged assault, S.F. was 14 years old and somewhere she was not supposed to be. She was in a residence she had never been to before which was far away from her own home. It was at least 3:00 a.m. and everyone else was in bed asleep. S.F. had a falling-out with the friend who brought her to the Residence and worried she might be abandoned there. S.F. had been partying, dancing, drinking excessively, falling down, crying and fending off C.Z.’s sexual advances. Although she was sobering up, she was not completely sober. When C.Z. gave up trying to have sex with her, S.F., not surprisingly, fell asleep.

[124]   In her statement, S.F. says that in the morning after the assault, C.Z.’s friends came around and asked him “did she smash” and he said, “She wouldn't let me.” No other Crown witness mentions friends coming to visit C.Z. in the morning. In fact, C.Z. says he did not get up until about 1:00 p.m. and the first person he spoke to was T.T. who ordered him to move out. In any event, S.F.’s evidence in this regard is inadmissible unidentified hearsay and I give it no weight.

[125]   The fact she was troubled when she awoke on October 14, 2018, is corroborated by S.L., T.T., and R.F. who described S.F. as nervous, shaky, quiet, and sad. In R. v. James, 2014 SCC 5 (CanLII), para. 5, the Supreme Court held when assessing the issue of consent, a trial judge ought to consider the complainant’s distraught condition a short time after the sexual contact.

[126]   S.F. went to the hospital within 24 hours of the assault and her medical records were entered as Exhibit 1 in these proceedings. These records serve only to confirm S.F. went to the hospital complaining of having been sexually assaulted. What S.F. told the medical practitioners constitutes a prior consistent statement. Whereas a prior inconsistent statement may undermine a witness’s credibility, a prior consistent statement is not admissible to bolster a witness’s testimony as a form of self-corroboration: R. v. Ellard, 2009 SCC 27 (CanLII), para. 31. Simply put, the fact that a narrative may have been repeated before trial does not make it more credible.

[127]   I am not aware of any significant external inconsistencies between S.F.’s out-of-court statements and her testimony at trial (which includes her adopted October 14, 2018 s. 715.1 statement). Many of the peripheral details S.F. could not clearly remember at trial were not canvassed in depth by Constable Wiksyk when he interviewed her on October 14, 2018. As is often the case, Counsel at trial asked S.F. more questions than the interviewing officer, thereby eliciting further information.

[128]   S.F. maintained she was being truthful when describing to Constable Wiksyk the sexual assault in her statement of October 14, 2018. Although at trial she said she only remembered “parts” of the incident, she never resiled from her allegation of being sexually assaulted. An example of peripheral events which S.F. could not specifically recall included:

[129]   S.F.’s memory as to peripheral events has faded over time. For example, on October 24, 2019, S.F. testified she had consumed most of a 24-pack of Twisted Tea. When she testified in December 2019, she said she could not remember or even estimate how many cans of Twisted Tea she had consumed. She did, however, remember that it wasn’t until a couple of hours after arriving at the Residence that she and S.L. began drinking. With respect to drinking the hard liquor, S.F. testified:

[130]   An further example of S.F.’s retreat from certainty is her evidence on C.Z. assisting her up the stairs to his room, S.F. testified:

[131]   S.F. evidence also transitioned from uncertainty to certainty. For example, when asked in cross-examination if C.Z. slept perpendicular to her at the end of the bed, S.F. said, “I don’t remember.” Later when asked again if she would agree C.Z. was sleeping perpendicular in a T shape to her at the time, S.F. said he was lying parallel to her on the edge of the bed.

[132]   In her statement to Constable Wiksyk, S.F. said she was lying down on C.Z.’s bed almost asleep and C.Z. came up next to her and tried to make out with her. Later in her statement, S.F. described the assault as occurring immediately after she and C.Z. had been discussing Fortnight, her attraction to his hand veins and that she was not ready to lose her virginity.

[133]   The following exchange suggests a glaring inconsistency in S.F.’s evidence:

[134]   As S.F. then went on after that exchange to reaffirm each aspect of the sexual assault, I conclude she did not consider or understand “physical contact” to include the “sexual contact” which was the substance of her complaint. In other words, I do not regard the foregoing exchange as S.F.’s admission she no longer remembered the sexual assault.

[135]   I do not regard S.F.’s inability to describe the peripheral details of the evening with precision as undermining her credibility. Although she has lost some of her memories about the evening, S.F. remains unequivocal she had been sexually assaulted.

[136]   S.F. was forthright and candid about her short-comings. She readily admitted she had lied to her mother about where she was spending the night so she could go to T.T.’s party with S.L. and drink, knowing her mother would disapprove. She admitted to drinking to the point of vomiting and falling down the stairs. She never tried to attribute any of the bruises on her body to the sexual assault except the one on her abdomen she identified as a hickey. She did not attempt to fill in gaps in her memories with speculation or reconstructions.

[137]   Although I believe S.F. exaggerated the amount she had to drink, there is no question she drank to the point of intoxication. Although at one point she said she had difficulty sitting up because she was still drunk, S.F. does not allege the sexual activity occurred when she was unconscious or semi-conscious. She says it occurred after she and C.Z. had engaged in conversation about her attraction to his hand veins.

[138]   There was nothing about S.F.’s evidence which suggests she has any motive to fabricate allegations of sexual abuse. I emphasize that C.Z. bears no burden to prove S.F. did have a motive: MRE citing R. v. Krack (1990) 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.). Moreover, the absence of evidence of a demonstrated motive to fabricate is distinct from affirmative proof of no motive to fabricate. In R. v. B.(R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A., stated at paras. 28 and 29:

[139]   S.F. did not want to give a statement to the police. She was scared and wanted to keep the sexual assault a secret. Her demeanour while testifying was consistent with someone who just wanted the court experience behind her. She did not exaggerate or embellish or dramatize her evidence. In sum, there was nothing about S.F.’s demeanour which detracts from her credibility.

[140]   I consider insignificant S.F.’s inability to recall precisely when various effects of her intoxication became manifest. I doubt if a less intoxicated adult could do so. I find S.F.’s inconsistencies as to quantity of alcohol she consumed also inconsequential given consent is not in issue and there is no allegation she was unconscious at the time of the alleged assault. The fact that S.F.’s memory of some peripheral details had faded between the time she gave her statement to Constable Wicksyk and her testimony at trial is not unexpected. In F. (C.C.) the Supreme Court of Canada noted (at para. 21) that one of the primary goals of s. 715.1 of the Criminal Code “is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth.” S.F.’s evidence of the alleged sexual assault was detailed, thorough, compelling and not shaken in cross-examination. I found S.F. to be a credible witness and her evidence on the salient issues reliable.

[141]   In my view Constable Wiksyk and R.F. had the capacity to observe, recall, and recount the events to which they testified, and did so reasonably accurately and truthfully.

[142]   I find that S.L., T.T., and J.L. tried to tell the truth, but the reliability of their evidence was diminished to varying degrees due to the passage of time and their state of intoxication when the events occurred. I did not get a sense that any of these three witnesses held any animus against C.Z. and there is nothing about their demeanour while testifying which detracted from their credibility. Of the three, (S.L., T.T. and J.L.), I found J.L.’ evidence the most unreliable, likely because he was the most intoxicated at the time. As between the two, I find that S.L. was more sensitive to the human dynamics of that evening than T.T.  I have commented below on some of the more notable contradictions in their evidence.

[143]   S.L. and T.T.’s evidence differs as to when and why they left the Residence. Given her upset that evening appears to have made little impression on T.T., I prefer S.L.’s version of this event. I conclude that S.L. left the Residence because she was upset and angry at S.F. and T.T. and that T.T. chased after S.L. to restore harmony.  This explains why S.F. ended up going to C.Z.’s room to lay down and why she was afraid S.L. might leave without her.

[144]   S.L. testified she saw S.F. following C.Z. upstairs to his room. T.T. says he and S.L. went to C.Z.’s room looking for S.F. in order to have her come to his room to sleep with S.L. J.L. says he saw S.F. go into the stairwell alone. S.F. says that C.Z. helped her walk upstairs to his room so she could lie down. Given there is no dispute that S.F. went to C.Z.’s room for the remainder of the evening, I am not convinced how she got there is crucial.

[145]   The most contentious evidence was J.L. and T.T.’s claim that C.Z. had admitted to them he had kissed S.F. C.Z. denies making any such admission. T.T. was not cross-examined on this portion of his evidence and J.L. was asked if it was possible C.Z. said “hug” rather than “kiss”. I can discern no apparent reason for T.T. or J.L. to concoct this evidence.

[146]   As is so often the case, there are only two people who know the truth about the sexual assault allegations, and that is the complainant and the accused. The fact that S.L., T.T., and J.L.’s evidence was at times incongruous or contradictory is not determinative of whether C.Z. sexually assaulted S.F. in the early hours of October 14, 2018 when they were alone in his bedroom.

[147]   C.Z. was the only person who was not drinking alcoholic beverages on the evening of October 13, 2018. C.Z. has no physical or mental impairment and has the capacity to observe, recall, and recount the events to which he testified. The question is, did he do so truthfully?

[148]   C.Z. says the only physical contact he had with S.F. on the evening of October 13, 2018, into the early morning of October 14, 2018, was to give her a comforting hug when she was crying after her falling-out with S.L. There is nothing inherently implausible about this evidence. At trial, S.F. had no recollection if she was upset or crying as a result of a quarrel with S.L. She had no recollection of and does not dispute that C.Z. gave her a hug. She does not suggest the hug constituted a sexual assault.

[149]   C.Z.’s evidence there was no sexual assault is contradicted by S.F., who describes a prolonged forceful sexual assault involving sexual touching, kissing, cunnilingus, digital and attempted penile penetration.

[150]   I do not accept the photographs of S.F.’s bruises on pages 1 and 3 of Exhibit 5, as corroborative of the sexual assault. S.F. was highly intoxicated; she stumbled and fell several times during the evening of October 13, 2018, including down a full flight of stairs. The only bruise S.F. attributes to the unwanted sexual activity is the dark one on her abdomen which she describes as a hickey depicted in the photographs marked Exhibit 4 and on page 2 of Exhibit 5. I gather this is the same bruise that S.L. saw the morning of October 14, 2018, which she also described as “hickey like”. I accept these photographs corroborate S.F.’s version of events.

[151]   C.Z.’s evidence he did not take S.F. up to his room is supported by J.L., who saw them go upstairs separately, and contradicted by S.F. and S.L. S.F. says C.Z. helped her climb the stairs. He had his arm over her shoulder and held her hand. C.Z.’s evidence S.F. came to his room independently four to five minutes after he heard S.L. yelling at T.T. is contradicted by S.L. who said she saw C.Z. walking up the stairs with S.F. after S.L. and T.T. had returned from their walk.

[152]   C.Z.’s evidence he was not drinking and spent very little time at the gathering downstairs on the evening of October 13, 2018, is corroborated by all the Crown witnesses who were present at the party.

[153]   The Crown has adduced no evidence of C.Z. making a formal out-of-court statement to a police officer. However, both J.L. and T.T. say that on October 14, 2018, C.Z. admitted to each of them, independently, he kissed S.F.  C.Z. denies kissing S.F. or making any such statements. C.Z. said T.T. simply hurled accusations at him and provided him no opportunity to tell his side of the story. S.L., however, confirmed that T.T. asked C.Z., “"why he did that” and although he said little, C.Z. did attempt to defend himself to T.T.

[154]   Even though C.Z. denied making any admission to T.T. or J.L. that he hugged or kissed S.F., J.L. agreed in cross-examination with Defence Counsel’s suggestion that it was possible C.Z. said he hugged as opposed to kissed S.F.  T.T.’s evidence of C.Z.’s admissions was unchallenged in cross-examination.  I find C.Z. did tell T.T. and J.L. he had kissed S.F. C.Z.’s apparent distress indicates this “kiss” was not something benign, but an act which could cause something “bad to happen.”

[155]   I find C.Z.’s evidence internally consistent between his direct evidence and cross-examination. The fact that he did not say he went downstairs more than once in his direct evidence was of no moment. He did testify that he was downstairs when S.L. and S.F. arrived and he later saw them intoxicated. As there is no allegation the girls arrived intoxicated it is obvious he had to go downstairs again sometime later in the evening.

[156]   C.Z. did not demonstrate any animus toward S.F. or any other Crown witness.

[157]   A witness’ motive to give evidence is a relevant factor in assessing his or her credibility. This raises special concerns where the witness is an accused because his or her entitlement to the presumption of innocence. In R. v. Laboucan, 2010 SCC 12 (CanLII), Justice Charron for the Court stated:

[158]   In this case C.Z.’s interest in not being convicted is not a particularly helpful factor in assessing his evidence. Still, I accept there is no absolute rule prohibiting the trial judge from considering an accused’s motive to lie in order to secure an acquittal.

[159]   C.Z. gave his evidence in a calm and careful manner. There is nothing about his demeanour while testifying which detracts from his credibility.

[160]   C.Z. and S.F. have given two diametrically opposed versions of a sexual encounter. Either S.F. is telling the truth and C.Z. is not, or C.Z. is telling the truth and S.F. is not. I am acutely aware that I am not presiding over a simple credibility contest and I cannot determine C.Z.’s guilt by determining who tells the more believable story. In a case such as this, I must consider the evidence as a whole: M.R.E., citing R. v. MacKenzie, 1993 CanLII 149 (SCC), [1993] 1 S.C.R. 212, R. v. J.W.A., 2010 ABCA 406, P.W.

[161]   As C.Z.’s defence is essentially a flat denial, I must look at his evidence within the context of all of the evidence presented in its entirety. Upon considering the evidence as a whole, I believe S.F. that in the early morning of October 14, 2018, C.Z. touched her in the sexual manner she described. S.F. says she did not consent to the sexual activity and I believe her. As a matter of common sense, however, I am sceptical the sexual assault persisted for an hour or two. Still, I do not believe C.Z.’s evidence that no sexual activity took place.

[162]   The question I must now answer is whether I find the strength of the Crown’s evidence so overwhelming can I say unequivocally I am convinced beyond a reasonable doubt of C.Z.’s guilt. I can and I do. Accordingly, I find C.Z. guilty of the sole count on Information 968-1 of sexually assaulting S.F.