[1]         M.S. lived alone in an apartment. About 10 people arrived one night for a party, where alcohol, cocaine and marihuana were used, though not necessarily by all who were there. M.S. left his residence with some others to get some cocaine. The revellers stayed. One woman, N.F., became very drunk. Her boyfriend at the time, Mr. Johnson, took her to the only bedroom in the apartment to sleep until she was sober enough to go home. He then left the party to get some cigarettes. The party dissipated.

[2]         M.S. returned home and found N.F. in his bed. Mr. Johnson went back to the apartment and found N.F. in the bedroom, naked, on her knees, with M.S.’s penis in her mouth, her hand on his penis, and actively engaged in sexual activity. He then attacked M.S. for a prolonged period, ultimately chasing M.S., who by then was also completely naked, down the streets of Vernon at about 3:30 a.m. M.S. called police to make a complaint about being assaulted by Mr. Johnson.

[3]         The police investigation of that assault led to M.S. being charged with sexually assaulting N.F. The Crown argued she was too intoxicated to consent and did not consent. M.S. said she consented, was not incapacitated, and he believed she communicated her consent. For the reasons that follow, I have found that the Crown failed to prove M.S. sexually assaulted N.F. That is not to say that N.F. was lying, or that M.S. was lying. I have not found that either of them did not tell the truth. The Crown simply did not have enough reliable evidence to prove M.S.’s guilt.

[4]         The Crown must prove M.S.’s guilt beyond a reasonable doubt. A reasonable doubt is one based on reason and common sense and must logically come from the evidence or the absence of evidence.^[i]

[5]         The essential elements of sexual assault are the physical act (actus reus), a touch of a sexual nature without the victim’s consent, and criminal intent (mens rea). The requisite criminal intent is an intention to touch, and knowledge, recklessness, or wilful blindness about the lack of consent.^[ii]

[6]         The law is that a person must have the capacity to consent before they can actually consent. Capacity requires that the person is capable of understanding^[iii]:

[7]         If the Crown proves, beyond a reasonable doubt, at least one of these four factors was not present, then the complainant cannot have consented, and the Crown has proved the actus reus.

[8]         Consent does not have to be verbal, but it must be specifically directed to each and every sexual act. There can be no broad consent given in advance: consent to sexual activity must be given at the time it occurs.^[iv] Consent also requires a positive act: silence, passivity and ambiguous conduct do not amount to consent.^[v] A belief that they do is not a basis for a defence of mistaken belief in consent. It is an error of law, not fact, to assume that unless and until a woman says “no”, she has implicitly given her consent.^[vi]

[9]         An agreed statement of facts proved that M.S.’s DNA and semen were on N.F.’s underwear. The nurse who conducted a sexual assault exam on December 16, 2018 documented numerous bruises on N.F., and abrasions on her left wrist and right ankle. N.F. reported she had a sore throat when she swallowed, and had neck and shoulder pain. There was no sign of injury inside of or outside on N.F.’s throat. There was no visual injury noted to her genitalia. The nurse would have made a note if N.F. was emotionally distressed. She did not make such a note; but there is no particular way that victims are supposed to act. The lack of a record of emotional distress is irrelevant, but worth noting for that reason.

[10]      On December 15, 2018, Cst. Drake and Cst. Stevenson spoke to M.S., who was not at his apartment, about his report of an assault. He had visible injuries. The police went to his apartment, arriving there at about 3:52 a.m. In the foyer, they saw indications of the assault as alleged by M.S., including blood stains, which they followed up the stairs to the third floor. M.S.’s apartment was on the third floor. They entered M.S.’s apartment, unit 304, and saw N.F. sitting on a couch in the living room. She was the only person in the apartment.

[11]      Cst. Drake talked to her briefly, and got some information from her including M.S.’s name as the apartment owner. She also said that Mr. Price, Mr. Peters and Mr. Johnson had gone outside for a cigarette. Cst. Drake testified that N.F. was awake, alert, and communicative but was not forthcoming. Cst. Drake thought she was uncooperative because he had to drag information from her. He was not asked if it was possible his interpretation was incorrect, and that she was simply confused.

[12]      Cst. Drake then took photographs for the assault investigation and met with the building manager and Cst. Stevenson. They watched video footage, which was in evidence at this trial. That video showed Mr. Johnson hitting and chasing M.S. down hallways and stairs and ultimately out of the building. M.S. was trying to protect himself from the extensive and unrelenting assault by Mr. Johnson, which included being hit by a snow shovel. M.S. was running naked through the hallways until he was eventually able to escape, with Mr. Johnson chasing him as he ran down the street, in the middle of the night, naked, in the middle of winter. That conduct was obviously degrading.

[13]      Mr. Johnson was more fair skinned, had lighter coloured hair and had a slim build relative to M.S. They bear no resemblance to one another.

[14]      When Cst. Stevenson went into unit 304, he saw N.F. on the living room couch, and bottles strewn about suggesting there had been a party. He agreed there might have been more alcohol in the apartment. He thought he talked to her as soon as he entered the apartment, but did not recall what Cst. Drake did. He was close enough to touch her when he spoke to her about the assault, and did not smell liquor. In answer to a leading question, he thought he shook N.F. to wake her up, and that he recalled testifying to that previously in the trial. He had not even mentioned it before. That is testimony that affects reliability. She sat up, they had a conversation, and she said that other people at the party had gone outside for a smoke. He went outside to look for those people. He did not find anyone. He then watched the video clips with Cst. Drake.

[15]      He testified that the date and time stamps on the video were likely accurate. According to the video, M.S. was chased out of his apartment unit at 3:22:09 a.m. Cst. Stevenson described M.S. as a larger man of indigenous descent with black hair, and nearly 6 feet tall. That was accurate.

[16]      After reviewing the videos, Cst. Stevenson went back to unit 304 to get N.F., because it was not her apartment and she would have to leave. He had left her alone in the apartment for about 20 minutes, and thought she was capable of caring for herself. She was sitting on the same couch, again with her head tilted back against the backrest. He said he had to shake her awake again, which took about five seconds. He said she still appeared drunk and he did not think it would be safe for her to walk home that late at night, so he offered to give her a lift. She was slurring her words and he testified he believed she had difficulty standing and walking.

[17]      I do not accept that evidence about walking and standing. His belief did not seem firm and he had not made notes of indicia of intoxication from which to refresh his memory. He testified that she walked out of the apartment with him, but in response to the next question, said he did not have a specific memory of walking out with her to his police vehicle. He did not explain the obvious contradiction. Given all of his testimony, he simply had no idea how she got to the police car, or from the police car to her basement apartment. That being so, he had no recollection of how she walked or stood. He was careless in saying she walked out of the apartment with him, also a reason for not accepting his testimony.

[18]      Cst. Stevenson put N.F. in the front passenger seat of his vehicle so he could ask her questions. Doing so was admittedly exceptional: that was the first time he had put an intoxicated person in the front seat of his police vehicle, because of concerns they might vomit from intoxication. That is a concrete indication that when they got to the police vehicle, he did not think she was overly intoxicated. That is consistent with his view that she was aware of her surroundings and capable of comprehending her circumstances, until after he was driving her home.

[19]      As he was driving her home, for the first time he smelled a very strong odour of liquor and noticed that N.F. fell asleep as he was asking questions. That led him to believe she was quite intoxicated. He thought if no one would be able to take care of her at her residence, he would have to take her to the police detachment because she would not be safe on her own. Despite having slurred speech and at times falling asleep, she answered questions appropriately, in the course of which she said that M.S. had done things to her while she was passed out.

[20]      Cst. Stevenson’s evidence left open the real possibility the N.F. drank more alcohol after he first spoke to her. There was only one concrete change in N.F.: the smell of liquor. When he first spoke to her, he was close enough to touch her and smelled no liquor. He agreed there might have been more liquor in the house and that she could have drank some after he left the first time. Drinking more liquor could explain why he only noticed what he thought was a greater degree of intoxication in the police car. But intoxication is not the only possible interpretation. Falling asleep is consistent with it being in the middle of the night, and N.F. being very tired. It could also be explained by a combination of intoxication and lack of sleep, or that he simply did not smell or recall smelling alcohol on her previously. It would be speculation to conclude the cause of her falling asleep in the police vehicle, or that she was previously incapable of comprehension.

[21]      When Cst. Stevenson got to N.F.’s residence, he arrested Mr. Johnson for assaulting M.S. with a weapon and brought him to the police detachment. He said that in consultation with his superior, police decided not to charge Mr. Johnson “because of what happened before the assault”. In cross-examination, Cst. Stevenson was quite evasive, as he failed to be responsive to questions about that decision.

[22]      Cst. Stevenson wrote in notes he made later that morning that he had concerns that N.F. had been raped. However when Mr. Johnson gave a statement to Cst. Stevenson about a month later, there is no evidence he said he saw that, nor is there any such evidence in this trial. The evidence of what Mr. Johnson saw has been consistent: he only saw N.F. vigorously engaged in performing oral sex on M.S. In part, Cst. Stevenson’s evasiveness leads me to conclude that, notwithstanding the officer’s denial, Mr. Johnson accurately testified that after he was arrested and told Cst. Stevenson about what happened, the officer laughed and said words to the effect that he would probably do the same thing.

[23]      I have no doubt Mr. Johnson was assaulting M.S. out of anger. Mr. Johnson’s assaults were his form of vigilante justice. Cst. Stevenson agreed that it was vigilante action, and testified that he, and perhaps other police, do not necessarily charge people who take vigilante action; rather the police decision depends on “the totality of the circumstances”. On the evidence before me, I cannot fathom how a decision could be made to not charge Mr. Johnson. The assault and vigilante action were far from minor in nature and effect. The decision to not charge Mr. Johnson suggests police accepted that Mr. Johnson’s actions were justified; which means they took on the role of prosecutor and judge.

[24]      That failure to charge Mr. Johnson indicates bias by the officer. That bias was evident in other answers. For example, when questioned in cross-examination about not smelling any odour of liquor when he first spoke to N.F., Cst. Stevenson gave an explanation favourable to N.F. and his conclusion she was extremely intoxicated. He admitted that his explanation was speculation. There was no suggestion he did not know speculation is not evidence.

[25]      Cst. Stevenson testified that in his statement, Mr. Johnson said that when he went into the bedroom:  “I seen him with his shirt on, all naked, button shirt. My girlfriend had no clothes on whatever, whatsoever, and she is going to town at her and she’s, I pulled her off him, and I just started wailing on the guy.” In another part of his statement, Mr. Johnson said that N.F. was on her knees, that he threw her off Mr. Johnson, that he thought she did not know what was going on and that she was slurring badly and said “what is wrong”. He also said that he could not imagine what M.S. did to put her in that position “to want to do that”, referring to her active engagement in oral sex.

[26]      By agreement of counsel and the court, Mr. Johnson testified remotely by MS Teams. Mr. Johnson and N.F. had been in a relationship and living together for three to four years when they went to the party at M.S.’s apartment on December 2019. Mr. Johnson knew only one other person, a Mr. Price [phonetic]. Mr. Johnson had poor recollection of details, admitting that he struggled to recall the evening because of the time that had passed and because he had gotten “pretty drunk”, leaving gaps in his memory.

[27]      He thought they probably arrived at the apartment about 9 or 10 p.m., but really just recalled it was dark outside, as his time estimate was just a guess. He thought there were four people at the apartment when they arrived. He had never been there before, but described an open concept living room, a sliding glass door to a balcony, and a bathroom and bedroom that were separate from the open plan area. He thought he introduced himself when they got to the apartment and thought M.S. was there for about an hour, then left with a couple friends. 

[28]      With respect to N.F.’s drinking, he said she was small and got intoxicated fairly quickly. She drank alcohol about 3-4 times a month and would be drunk after four to six drinks. In chief, he said she started to drink about 10 minutes after they arrived, and she had finished it about an hour after arriving. She would plug her nose and gulp it down. In cross-examination, he said he put her to bed about two hours after they arrived.

[29]      Mr. Johnson first said a mickey was 750ml, then said it was perhaps 250ml. He drank about three quarters of the alcohol in his bottle and stopped because he had to look after N.F. who was drunk. He described changes to N.F. after she finished drinking: she slurred her words, was not standing properly, and kept falling over. He could not carry her and took her to the couch. Although he was not sure, he thought that was a couple hours after they arrived, and also said it was right after she finished drinking. When she was sitting on the couch she fell over sideways and “passed out”, which he described as her sleeping, like she was tired. He said when she was on the couch, she kept slumping over, could not keep her eyes open, and slurred her words, saying she wanted to go to bed.

[30]      He said he tried to get her to go home but she kept falling over. He sat beside her and described N.F. as being in and out of consciousness, and when he tried to wake her up to go home she would answer but it was “gibberish” and did not make sense. Since he could not carry her home because he too was stumbling, after about 10 minutes he decided to put her in bed at the apartment and let her sleep it off for about half an hour. He testified that based on his experience over the course of their relationship, he thought she would be sober enough to walk home after about an hour. He swung her arm around his shoulder, carried her to the bedroom and put her on the bed on her back with her head on the pillow. She was fully clothed. He thought he spent 10-20 minutes in the room with her before he left to get cigarettes, although his time estimate was admittedly far from accurate. He testified that he left the bedroom door open with the lights off.

[31]      He said he told Mr. Price, who was on the living room couch, to watch her and then left the apartment. He estimated he was gone for 30 to 45 minutes, perhaps longer. He later said it was about an hour. He thought he had given someone money to get cigarettes, then that person came back and he went with them. He knew that person was a woman. He thought she came from the apartment, but he did not recall her in the apartment before he left. He said he did not know her name. He also said very shortly after that testimony he thought he ran into her on the street when he was walking. That made no sense, since he gave her money to get cigarettes before he left. This is an obvious area where his recollection is unreliable. After seeing the video footage, he recalled that he had gone with Ms. Phoenix [phonetic] to get cigarettes, and acknowledged that N.F. “hated [her] the most in the world” because she was jealous of the close relationship Ms. Phoenix had with Mr. Johnson.

[32]      At this point, it is convenient to address M.S.’s argument that apart from being unreliable, Mr. Johnson’s veracity was questionable because Ms. Phoenix was his very good friend. M.S. argued that Mr. Johnson’s lack of recall about who he went to get cigarettes with was not just a faulty memory, but was evidence that Mr. Johnson was trying to hide the nature of his relationship with Ms. Phoenix. However, Mr. Johnson made various admissions that were not in his favour, and seeing the video for the first time brought back to him that he was with Ms. Phoenix. Although it may be suspicious that he could not initially recall who she was, whether she was at the party, and why he would want her to help get N.F. home, I cannot conclude he was trying to mislead the court. However, it is evidence of how poor his recollection was at trial.

[33]      Mr. Johnson had no idea what time he left the apartment, or when he returned, but he could not get in to the building, so he climbed up the outside of the building to M.S.’s third floor balcony and went into the apartment through the patio door. He saw Mr. Price and another man on the couch sleeping, and went to the bedroom. The door was closed, but he could see that the light was on from the gap at the bottom of the door. He opened the door and saw M.S., who he described as “this fat native guy”, and later as the guy “who assaulted” N.F., with his T-shirt on but otherwise naked, with one hand on N.F.’s head and the other lifting up his shirt. He initially said M.S. was kneeling on the bed, but shortly after said he was standing and N.F. was kneeling on the bed. N.F. was completely naked with her hand on his penis and his penis in her mouth.

[34]      Mr. Johnson was certain the bedroom light was on when he returned, and that N.F. was awake, vigorously performing oral sex on M.S. That made him angry, and he stopped her from performing oral sex by pulling her off M.S., onto the floor. He thought she might have said, “what’s wrong?”

[35]      He said after he pulled N.F. off he immediately started “wailing on the guy”, which meant punching M.S. wherever he could. He said M.S. tried to get him to stop and said, “this is what I do” while he was flinching, with his arms in front of his face, trying to block being hit. He kept saying that as Mr. Johnson punched him. In context, the statement “this is what I do” could be a statement that M.S. does not fight back, just tries to protect himself. In any event, Mr. Johnson agreed that M.S. could have said “what did I do?”, implying that he did not know that he was doing anything wrong.

[36]      Mr. Johnson said M.S. was trying to get away from him and from being punched, but he kept hitting him. M.S. ran out of the bedroom to the front door and then ran down the hallway, while Mr. Johnson hit him the whole way.

[37]      He testified that N.F. “wasn’t all there”, that she was extremely intoxicated and did not know what was going on. He came to that conclusion because after he talked with N.F. the next day, he assumed N.F. thought she was engaging in sexual activity with him. He testified that N.F. told him she could not remember what had happened but felt violated.

[38]      That conversation and his conclusions that she was confused and not “all there” indicate his testimony was tainted. He agreed that when he saw her performing oral sex on M.S., he thought she was cheating on him. He also said he thought that her denials of cheating were a lie, and “a big part” of why he ended their relationship over a year later, was because he still thought she had cheated on him. I conclude he was far from sure that she did not know what she was doing with M.S. If Mr. Johnson thought she cheated on him, he thought she was a willing participant. That is supported by the evidence of very active participation. 

[39]      He estimated that from the time he entered the bedroom until he was seen in the video chasing M.S. down the hallway was less than a minute. Given his description of events, it is likely less than a minute. He came in, saw his girlfriend actively engaged in a sexual act with M.S., pulled her off the bed onto the floor, and immediately went to M.S. and started beating on him. Mr. Johnson agreed he had little time to observe her, perhaps a second.

[40]      It is in that context that Mr. Johnson’s evidence that N.F. was confused and perhaps said “What’s wrong?” must be analysed. He thought she was confused because she was sitting on the floor, perhaps swaying, and thought her face looked confused. In response to a leading question that her facial expression was a look of confusion, he agreed, but was unable to describe in any more detail why he thought she was confused. Her confusion may have been at least in part due to her being thrown to the ground. Given his spotty recollection, the very brief glance at N.F., and the conversation he had with N.F. the next day that influenced his recollection and testimony, I do not place much weight on his conclusion that she was confused.

[41]      Mr. Johnson said he continued his relentless attack on M.S., chasing him through the hallways and down stairs to the foyer of the building, where he took a snow shovel and started hitting M.S. with it. M.S. fled out of the building and Mr. Johnson said he chased him down the street but that M.S. “got away”. He was locked out of the building and tried to get back in but could not. Eventually a woman came, would not let him in and told him police were coming. He did not recall anyone else outside the building with him, although the video showed he was with Ms. Phoenix. They went to his residence.

[42]      He recalled N.F. being brought home by a police officer. He said he did not go anywhere with the police, but was asked about hitting M.S. He said he explained what happened and the police officer laughed and said words to the effect that he would probably do the same thing in Mr. Johnson’s situation, and that Mr. Johnson should not be concerned about being charged.

[43]      Mr. Johnson also recalled that when N.F. was dropped off by police, Ms. Phoenix left, the police left N.F. in his care, that she was still drunk, that she sat down on the bed and immediately fell asleep, and that he stayed up longer before going to bed. That of course was impossible, since he was arrested by police and taken to the detachment. That testimony is evidence of a memory of events he did not participate in or see. It is evidence of a false memory, likely from information given to him by N.F.

[44]      N.F. was 17 years old on December 15, 2018, and 20 when she testified. She was five feet tall and weighed just under 100 lbs. at the time of the incident. She recalled going to the apartment for a going-away party for her friend, Mr. Peters. She testified she went to the party with Ms. Phoenix, a Ms. Sanbag [phonetic], Mr. Johnson, Mr. Peters, Mr. Price, a Mr. Redekopp [phonetic] and Riley, whose last name she did not recall. She met M.S. that night, in that as he was sitting at a table with friends she was told his first name and that it was his apartment.

[45]      She said they arrived at about 8:00 p.m., explaining they had left a teen centre at 7:30 pm when it closed and stopped at a liquor store on the way to the apartment. Mr. Johnson bought them “mickeys” of Jack Daniels, which she thought contained 750ml of liquid. She said she drank all of her bottle and then started drinking Mr. Johnson’s, which made him upset. She said she drank the mickey over three to four hours and went to bed near midnight. She also smoked a ‘joint’ with others on the balcony. She had never drank that much alcohol before. She said she was very intoxicated and could only recall parts of the evening, some before the incident and some after. She said was not sure what she recalled because of the gaps in her memory. Some important aspects of her testimony included references to what others, including Mr. Johnson, had told her about that evening.

[46]      She said M.S. left and she and her friends drank and had fun for a few hours. She started to pass out on a couch and Mr. Johnson was upset with her. She said she knew she went to a bedroom and was going to go to sleep. The next thing she recalled she had someone in front of her, and that her recollection was ‘gappy’, which I understood as intermittent and spotty. She said she did not know what happened. She said she was not conscious. She assumed she went to sleep. She recalled at one point he was over her and then later she was on her knees on the ground and that she was having her hair pulled onto “his stuff”, with her mouth on his penis, and she said her head was being pulled back and forth. She said she did not recall how she got on her knees because she was asleep.

[47]      She said that M.S. did not ask for her consent, did not ask her anything, because she did not recall it. Then Mr. Johnson came in and started hitting M.S. She said M.S. said “this is what I do”. She said that Mr. Price gave her a shirt then shortly after the police came. Later she said that she did not know that Mr. Johnson and M.S. had left. She said she was still feeling very drunk when she walked out into the living room. She also testified that police went into the room where she was and when they went out no one was there. Her reference to “room” must have meant the bedroom.

[48]      She said when she woke up the next day she told her parents, went to the police station and then the hospital but was sent home and told to return the next day. She did, was told again no one could assist and told to return again that evening when finally someone did assist her with an examination. She recalled being bruised everywhere, that she could not recall how she got the bruises, and had a lump on her head she said was from the Accused pulling her hair. She said she has fallen when drunk and could have been bruised that way.

[49]      In cross-examination, she said she had no plan to drink the entire bottle, but she planned to drink a good portion of it, perhaps a quarter of it. She said they got two bottles so they would each have one, but she was planning to go to work the next day. She was certain a mickey had 750ml of liquid, but said it was smaller than a wine bottle, and eventually agreed she was not sure. She thought she went to the bedroom between midnight and 2:00 a.m. because one friend had a midnight curfew and he left. She said she recalled Mr. Johnson with her on the way to the bedroom but did not recall how she got there. She recalled Mr. Johnson was annoyed at her for drinking some of his liquor. She agreed when she went to the bedroom she could have bumped into furniture and fallen to the floor. She thought a number of her friends were still there when she went to the bedroom.

[50]      She said the light was on in the bedroom when Mr. Johnson was attacking M.S. She was certain that Mr. Johnson did not pull her off, but pushed M.S. She could not say how she got on the floor, or even if she recalled being on the floor. She did not recall talking to Cst. Drake. She said she walked to the police car and stumbled a lot. She said she talked to Mr. Johnson before she gave a statement to police and learned he went to get cigarettes. She said he was upset with her at first, but then he calmed down and they went to the police station. She recalled he was glaring at her when he was arrested by police. She said she could understand why Mr. Johnson might think she cheated on him, and that they discussed it after he returned from the police station. She denied it was an aspect of their break-up.

[51]      She said she did not remember talking to police when they came to the apartment. She said her statements to police on December 15, 2018, were true. She said in that statement that she went to sleep on the bed with clothes on, she next recalled being naked and M.S. naked, and she was not sure what happened. She said she was choking on his penis but also said she was sucking on it. She could not say how long it was between her recollection of M.S. looking over top of her and being naked on her knees. She could not recall if her hand was on his penis. She said her jeans were tight and she had to struggle to put them on and take them off. She thought she would not be able to take them off if she was drunk, but had no recollection of how they got off or when. Later she said she was able to put them on in the bedroom, with a little more difficulty than usual, even though she was very drunk. She recalled Ms. Phoenix was at the party, and denied she was jealous of her, although she acknowledged she had been jealous of her years before. She also said she was irritated by Mr. Johnson and Ms. Phoenix hugging at her residence, and she asked Ms. Phoenix to leave after Mr. Johnson was arrested. She said she was also angry at Mr. Johnson for leaving her at the party.

[52]      I am sympathetic to N.F.’s predicament: she was intoxicated and her boyfriend left. She has limited recall of events, due to intoxication and, as she rightly pointed out, the three years that passed before she could testify about that evening. Her dissatisfaction with that time is a specific example of society’s interests in ensuring trials are held in a timely way. The result is that N.F. has very limited recollection of the night, with significant gaps, especially with respect to the incident.

[53]      Her testimony was not internally or externally consistent. Her recollection was tainted by conversations with others, and she could not separate her recollection from what others had told her. She was honest, saying she was not sure of many things, but was sure that M.S. was over her and then later, when Mr. Johnson started attacking him, she was on her knees on the floor and M.S. was forcing her mouth on his penis. However, I prefer Mr. Johnson’s testimony on that point. He was not as intoxicated. That is not to say that his evidence is without significant reliability issues. It is. But he recalled she was on the bed, actively engaged, with her hand on his penis. He did not get M.S. off her, but pulled her away from performing fellatio on M.S., onto the floor. He would not have thought she was cheating on him if M.S. was forcing her head back and forth, as she recalled.

[54]      To summarize the important aspects of the Crown’s case, based on the evidence I accept and find, there was some evidence that N.F. may have wanted to cheat on her boyfriend, but it is far from compelling. N.F. was very jealous of Ms. Phoenix, and Mr. Johnson was upset with N.F. at the party. M.S. does not have to prove a motive.

[55]      M.S. and N.F. likely arrived around 8:00 p.m. She drank what was for her a significant amount of alcohol. It was far less than 750ml, which would be a full sized bottle. She was awake and could talk, but was obviously quite intoxicated and sleepy. It was well after midnight that she went to sleep in the bedroom with her boyfriend’s help. Mr. Johnson knew her well, sober and intoxicated, and thought she would be able to walk home in about an hour. In other words, he thought she would be less tired, more sober and would be capable of walking 25 to 35 minutes to their home. He left to get cigarettes. He was gone for about an hour. Since N.F. told Cst. Drake that Mr. Johnson was with Mr. Price and Mr. Peters outside smoking a cigarette, she knew that Mr. Johnson had left to smoke, which was information he must have given her before he left her in the bedroom to sleep.

[56]      Mr. Johnson and N.F. both had poor recall and significant gaps in their memory from alcohol and passage of time. N.F. admitted to Mr. Johnson the morning after the incident, and at trial, that she was not sure what she remembered. Her narrative was influenced by what others had told her. So was Mr. Johnson’s. 

[57]      The video showed that Mr. Johnson chased M.S. out of his apartment about 3:22 a.m. Mr. Johnson was attacking M.S. for less than a minute in the apartment. Using his time estimates, that means he left the apartment about 2:20 a.m. However, Mr. Johnson was very inaccurate with his time estimates, which were generally far shorter than the actual time, except perhaps for how long he attacked M.S. in the apartment. It would be more likely that Mr. Johnson was gone for more than an hour, and N.F. slept for more than an hour. N.F. has virtually no recollection of what transpired from when she went into the bedroom until the memory of being on her knees in the middle of a sexual act.

[58]      When Mr. Johnson returned, there were two others he knew that were asleep in the living room. When he went into the bedroom, the light was on. N.F. would have been able to readily see who she was with. Mr. Johnson and M.S. looked nothing alike. He saw her naked and actively performing fellatio on M.S. He did not see M.S. forcing N.F.’s head in any way. Mr. Johnson’s initial thought was that N.F. was cheating on him. Mr. Johnson continued to think N.F. might have cheated on him, despite having a conversation about what had happened with N.F. It was a lingering concern that was part of his reason for ending their relationship. N.F. accepted that perspective had some merit.

[59]      Mr. Johnson pulled N.F. off M.S., then beat and chased M.S. in an intoxicated rage. Mr. Johnson only had a brief glimpse of N.F. after he had pulled her off the bed and she was on the floor. She may have said “what’s wrong?”, been swaying and looked confused, but why she may have looked that way and said that could have been from being thrown from the bed as much as being unsure of her surroundings.

[60]      M.S. called police to report he had been severely assaulted. Mr. Johnson and N.F. did not call police.

[61]      N.F. was able to get dressed on her own, including putting on her tight pants. She could dress, and undress, even while intoxicated, tired, and/or both. She did not recall Cst. Drake talking to her. She did not recall much about her interaction with Cst. Stevenson. Neither officer noticed she was particularly intoxicated until she was in the police vehicle. She could have drank more alcohol after the police left the apartment.

[62]      She said she walked to the police car, which was from the third floor. Cst. Stevenson had no recollection of how she got there. Since he wanted to engage her in conversation, I conclude he would have talked with her on the way to the police car. I conclude N.F. was drunk, but did not appear overly intoxicated and was able to converse with police intelligibly and coherently. Cst. Stevenson did not think she was so intoxicated that she was unsafe, incapable of walking, or that there was any risk of her getting sick in his car. He put her in the front seat to talk with her, expecting she would be able to continue to converse rationally and coherently as she had been. She kept falling asleep in the police car and was slurring her words. That may have been from intoxication, being tired in the middle of the night, or both. She was able to get to her downstairs apartment by herself.

[63]      The Crown argued that N.F. did not have an operating mind, that is, she was incapable of consenting; and that she did not consent. If the Crown proves beyond a reasonable doubt that N.F. did not have an operating mind capable of consenting, or did not agree to the sexual activity, then the Crown has proven a lack of subjective consent.

[64]      The Crown’s argument that N.F. was incapable of consenting is not supported by any expert opinion evidence regarding intoxication and capacity to consent. Although it may be supported by Mr. Johnson’s testimony that she said “what’s wrong” and looked confused, coupled with being intoxicated before she went to sleep and seeming so after she got into the police car, the evidence is far from proof beyond a reasonable doubt.

[65]      It is contradicted by the fact that N.F. got dressed by herself; spoke to two police officers who had no concerns about her state of intoxication; could have drank more alcohol after speaking to police; walked to the police car unaided and without her state of intoxication being obvious to a trained police officer with significant experience in dealing with intoxicated people; and was able to converse with that officer rationally. I am certain Cst. Stevenson would have noted if she needed assistance and would not have put her in the front seat of his car if he thought she was so inebriated she was incapacitated.

[66]      The mere fact that N.F. cannot recall various times and events does not mean she did not have an operating mind. As the Crown acknowledged, a lack of recall is just as consistent with an operating mind and an inability to retrieve a memory as it is with an inability to make a memory, presumably reflective of a non-operating mind. The fact that N.F. had ‘flashes’ of recollection, for example M.S. being over her, suggests that she had the ability to make memories, so she may only be unable to retrieve them.

[67]      I have considered N.F.’s testimony that she was being forced onto M.S.’s penis. Her claim of a sore throat is supportive of that perspective. Yet it is contradicted by Mr. Johnson’s testimony; that she did not know how she got many bruises; and that she admittedly could have fallen. I cannot reconcile her version with her boyfriend’s observations. I prefer his testimony as he had better recall. Considering her apparent full participation in the sexual activity and the problems with testimony I have referred to, I cannot conclude that she was asleep or so intoxicated as to be incapable of consenting.

[68]      That sexual activity showed that N.F. appeared to understand the sexual act; her active participation is evidence of knowledge that she could refuse to participate in the sexual activity. With respect to the specific identity of the other person, the “what’s wrong” statement and what Mr. Johnson said was a look of confusion could support the argument she did not know who it was. Yet Mr. Johnson only looked at her for a brief moment before attacking M.S., and the underlying aspects that led to his conclusion she had a confused look were not explored. I do not place much reliance on that testimony.

[69]      On the other hand, N.F. and M.S. were naked, which would have taken some time to achieve; M.S. looks nothing like Mr. Johnson; and there was plenty of light. There is enough evidence to indicate she may have known, and likely knew, with whom she was having sexual activity. The Crown did not prove the absence of a factor beyond a reasonable doubt. The Crown has failed to prove she was incapacitated such that she was incapable of consenting.

[70]      Turning to subjective consent, the evidence does not support the submission. N.F.’s testimony that she did not consent was really a statement that she would not have consented, because she had no recollection of the actual events. Her evidence was really a statement that she did not think that she would have consented. It was not evidence of her state of mind at the time, it was her opinion of what she thought it was, without in fact knowing what she thought, said or did.

[71]      There is no reliable direct evidence of N.F.’s state of mind regarding consent. It is circumstantial: N.F. would not have done so when sober. But it is well known that people use alcohol to diminish inhibitions, for example, to interact more easily in social situations. Courts regularly hear about people doing things they would not otherwise do because of intoxication and their diminished inhibitions.

[72]      The circumstantial evidence loses force with the diminished inhibition from alcohol consumption. The submission of lack of consent loses force in light of Mr. Johnson’s real and longstanding doubt about N.F.’s stated lack of consent; and N.F.’s acceptance that in the circumstances, that doubt was understandable. I too have a reasonable doubt. The Crown has failed to prove lack of subjective consent beyond a reasonable doubt.

[73]      Section 273.2 of the Criminal Code says that an alleged mistaken belief in consent will not provide a defence where the accused was reckless, wilfully blind, or did not take reasonable steps in the circumstances known to them at the time to determine that the complainant was consenting. An accused must take steps that are objectively reasonable. Steps based on rape myths or stereotypical assumptions are not reasonable. Relying on silence, passivity, or ambiguous conduct is not reasonable. The more invasive the sexual activity in question and the less familiar the people are with each other, the greater the risk of misunderstanding and mistake. In those circumstances, a reasonable person would take greater care in confirming consent to the proposed sexual activity.^[vii]

[74]      Even if incapacity and/or lack of subjective consent was proved, the Crown has failed to prove that M.S. did not take all reasonable steps to ascertain consent. His evidence was that he went into his bedroom and found N.F. in his bed, awake, with her eyes open and giggling. He asked if she wanted to make out. She agreed. He asked for consent to further sexual activity and got affirmative responses. That evidence was not discredited such that it is incapable of belief. Mr. Johnson’s evidence of active participation by N.F. corroborates M.S.’s evidence. So does his repeatedly saying “what did I do?” as that suggests he did not think he was doing anything wrong. I would find that M.S. had an honest but mistaken belief in communicated consent.

[75]      The Crown has failed to prove beyond a reasonable doubt M.S.’s guilt. M.S., you are acquitted.

[76]      Paragraph 41 should read: