R. v. Charlebois

2025 BCSC 1896 R. v. Charlebois

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Charlebois, 2025 BCSC 1896 Date: 20250926 Docket: 57624 Registry: Vernon Rex v. Dalton Charlebois Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence that could identify a complainant or witness, referred to in this judgment by the initials V.S. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Justice Fowler Oral Reasons for Judgment Counsel for the Crown: T. Zanatta Counsel for the Accused: N.C. Jacob Place and Dates of Trial: Vernon, B.C. August 18-21, 2025 Kelowna, B.C. August 22, 2025 Place and Date of Judgment: Vernon, B.C. September 26, 2025 Table of Contents INTRODUCTION.. 3 LEGAL PRINCIPLES. 4 Presumption of Innocence and Proof Beyond a Reasonable Doubt 4 Offence Charged - Sexual Assault. 5 Consent 6 Capacity to Consent 8 Mens Rea and Honest But Mistaken Belief in Communicated Consent 9 Legal Principles Regarding the Assessment of Credibility and Reliability of Witnesses. 11 Myths and Stereotypes. 18 Evidence of Other Sexual Activity Admitted Pursuant to S. 276 of the Criminal Code. 19 OVERVIEW OF THE EVIDENCE. 19 V.S. 19 Evening/Morning of September 27/28. 20 Briony Drummond. 29 Dalton Charlebois. 30 Josh Erwin. 39 ANALYSIS. 42 CONCLUSION.. 53 Actus Reus. 53 Mens Rea. 54

INTRODUCTION [1] On the evening of September 27, 2020, until the very early hours of September 28, 2020, the accused, Dalton Charlebois [Mr. Charlebois] and the complainant, V.S. spent the night drinking heavily with and in the home of two friends, Briony Drummond [Ms. Drummond] and Josh Erwin [Mr. Erwin]. [2] V.S. had recently started renting a room from Ms. Drummond because she was having issues with her parents. Mr. Charlebois and V.S. were acquainted with each other but were not friends. [3] Ms. Drummond was the first to go to bed, leaving the others to continue drinking. Eventually V.S. went to bed, leaving Mr. Charlebois and Mr. Erwin to continue to drink and chat. What happened next is where the evidence begins to diverge. V.S. says she went to bed alone, sent a video message to a friend from her bed, wherein she expressed relief that she had not gone to bed with Mr. Charlebois, and "passed out" before waking up to find Mr. Charlebois sexually assaulting her. [4] Mr. Charlebois testified that he went to the bedroom of V.S. with her, where they undressed, continued to "make out" and then engaged in consensual sexual intercourse, before falling asleep. [5] Mr. Charlebois is charged with a single count of sexual assault. [6] The Crown called two witnesses, V.S. and Ms. Drummond. Mr. Charlebois testified in his defence and called Mr. Erwin as a witness. [7] The defence

submits that Mr. Charlebois was a credible witness and that his evidence should be accepted or at least raise a reasonable doubt. They also submit that V.S. was generally an unreliable witness, who was not credible at times. [8] The Crown submits that I should accept the evidence of V.S. and reject the evidence of Mr. Charlebois. The Crown argues that Mr. Charlebois's evidence was inconsistent with the evidence of other witnesses and implausible considering V.S.'s expression of disinterest in Mr. Charlebois, and her apparent degree of tiredness and intoxication. [9] I begin these reasons with a discussion of the legal principles that govern sexual assault cases, followed by a detailed summary of the evidence of the four witnesses, before setting out my analysis and conclusion.

LEGAL PRINCIPLES Presumption of Innocence and Proof Beyond a Reasonable Doubt [10] It is fundamental to every criminal trial that the accused is presumed to be innocent. The Crown bears the onus to displace that presumption of innocence by proving beyond a reasonable doubt each element of the offence with which the accused is charged. [11] The accused does not have to prove anything. The burden of proof always rests with the Crown and never shifts to the accused. [12] Proof beyond a reasonable doubt means that before the accused can be convicted of an offence, I must be sure of his guilt. Proof beyond a reasonable doubt is not the same as absolute certainty, but it is much closer to absolute certainty than it is to a balance of probabilities. R. v. Starr, 2000 SCC 40, at para. 242. [13] The standard of proof beyond a reasonable doubt applies to each element of the offence but does not apply to individual pieces of evidence: R. v. Morin, [1988] 2 S.C.R. 345, 1988 CanLII 8 (S.C.C.), at para. 11. [14] A reasonable doubt is one based on reason and common sense. It is not an imaginary or frivolous doubt, but rather it is one that is logically derived from the evidence or the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, 1997 CanLII 319 (S.C.C.), at para. 39. [15] I am permitted to make a finding of guilt, in other words, to conclude that the Crown has proven its case

beyond a reasonable doubt, based on the uncorroborated evidence of the complainant: R. v. A.G., 2000 SCC 17, at para. 30. [16] Most of the evidence in this case was direct evidence, in other words, witnesses testified about what they observed or what they did. However, because there were gaps in the recollections of all the witnesses, which is not unexpected given the passage of time and the extent of alcohol consumption, it may be necessary to draw inferences to bridge gaps in the direct evidence. Therefore, I must remain mindful of the admonition that inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, 2016 SCC 33, at para.

35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. Offence Charged - Sexual Assault [17] Mr. Charlebois stands charged that from the 27th day of September 2020 to the 28th day of September 2020, inclusive, at or near Vernon, British Columbia, he did sexually assault V.S. contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. [18] The offence of sexual assault requires the Crown to prove beyond a reasonable doubt both the actus reus and the mens rea of the offence. [19] The actus reus is comprised of the following elements: 1. The accused applied force to or touched the complainant directly or indirectly; 2. The touching or application of force by the accused was of a sexual nature; and 3. The complainant did not consent to the sexual activity in question. [20] The mens rea of sexual assault is comprised of the following elements: 1. The touching by the accused was intentional; and 2. The accused knew, was reckless, or was wilfully

blind, that the complainant did not consent to the sexual activity in question. [21] Therefore, a conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that Mr. Charlebois committed the actus reus and had the necessary mens rea. The actus reus of sexual assault requires the Crown to prove beyond a reasonable doubt that the accused touched the complainant, V.S., in a sexual way without her consent. For the mens rea of sexual assault, the Crown must prove beyond a reasonable doubt that at the time the accused touched V.S. in a sexual way, he intended to touch her and knew of, or was reckless of, or was wilfully blind to, V.S.'s lack of consent: R. v. Barton, 2019 SCC 33, at para. 87. [22] Because it is acknowledged by Mr. Charlebois that he applied force to V.S. or touched V.S. in a manner that was of a sexual nature, this summary of the law of sexual assault will now focus on the third element of the actus reus, the absence of consent. Consent [23] The Criminal Code has specific provisions governing the meaning of "consent" for the purposes of sexual assault: [24] Firstly, in respect of assault generally s. 265 of the Code states: Assault 265(1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a

gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [25] In addition, s. 273.1 of the Code addresses the meaning of consent in sexual assault. Meaning of consent 273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Consent (1.1) Consent must be present at the time the sexual activity in question takes place. Question of law (1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law. No consent obtained (2) For the purpose of subsection (1), no consent is obtained if (a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the

activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. [26] Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. It is the conscious agreement of the complainant to engage in every sexual act in a particular encounter. Consent must be freely given and must exist at the time the sexual activity occurs: Barton, at para. 88. [27] Consent can be revoked at any time, albeit that the complainant need not express either her lack of consent or revocation of consent, for the actus reus to be proven: R. v. J.A., 2011 SCC 28, at para.

37. In other words, it is the presence of consent, rather than its absence, that must have been affirmatively communicated by the complainant's words or actions for each sexual act: R. v. Goldfinch, 2019 SCC 38, at para. 44. [28] Consent is not analysed in the abstract, but rather it must be linked to the specific physical act or the sexual nature of the activity in question: Barton, at para. 88. [29] For the actus reus, the focus is on the complainant's state of mind -- did she want the sexual touching to occur? If a complainant testifies that they did not consent to the sexual touching, and the trier of fact accepts this evidence, then the actus reus is established: Barton, at para.

89. The complainant need not express their lack of consent or revocation of consent for the actus reus to be established: J.A., at para 37. Capacity to Consent [30] It is a precondition for subjective consent that the complainant had the capacity to consent. In R. v. G.F., 2021 SCC 20, the Supreme Court of Canada articulates the parameters of capacity as follows: [55] As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent itself. Since subjective consent must be linked to the sexual activity in question, the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identity of their partner: Barton, at para. 88; Hutchinson, at paras. 54-57. [56] There is one further requirement. Because subjective consent requires a "voluntary agreement", the complainant must be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: Criminal Code, s. 273.1(1). At the very least, a voluntary agreement would require that the complainant exercise a choice to engage in the sexual activity in question. In this narrow sense, in order to voluntarily agree to the sexual activity in question, the complainant must understand

that saying "No" is an option. In J.A., this Court held that consent requires that the complainant have "an operating mind" at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43-44. Thus, an unconscious complainant could not provide contemporaneous consent. It follows that where the complainant is incapable of understanding that they have this choice to engage or refuse to engage, they are incapable of consenting. Accordingly, a complainant who is unable to say no, or who believes they have no choice in the matter, is not capable of formulating subjective consent: see R. v. Al‑Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 60, citing R. v. Daigle (1997), 1997 CanLII 9934 (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.), aff'd 1998 CanLII 786 (SCC), [1998] 1 S.C.R. 1220. [57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant's partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. [58] The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a

reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. [31] Quite obviously, a person who is unconscious or sleeping is incapable of consenting to sexual activity: R. v. A.R., 2025 BCSC 1594, at para.

36. Mens Rea and Honest but Mistaken Belief in Communicated Consent [32] For the mens rea, and specifically for the defence of honest but mistaken belief in communicated consent, consent means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused." Barton, at para.

90. In considering the mental state of the accused the "question becomes whether the accused honestly believed the complainant effectively said "yes" through her words and/or action": R. v. Ewanchuk, [1999] 1 S.C.R. 330, 1999 CanLII 711 (S.C.C.), at para. 47. [33] Before relying on the defence of honest but mistaken belief in communicated consent, the accused must first show that there is an air of reality to the defence. The judge must consider whether there is any evidence upon which a trier of fact, acting reasonably, could find that the accused, firstly, took reasonable steps to ascertain consent and secondly, honestly believed the complainant communicated consent. If the air of reality test is satisfied, then the onus shifts to the Crown to disprove the defence beyond a reasonable doubt. [34] The parameters of this defence are in part prescribed by s. 273.2 of the Code: Where belief in consent not a defence 273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused's belief arose from (i) the accused's self-induced intoxication, (ii) the accused's recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (b) the accused did not take

reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (c) there is no evidence that the complainant's voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [35] An accused cannot base their mistake of fact defence on beliefs about consent that are mistakes of law. It is an error of law to assume consent was implied by the circumstances, by the relationship between the accused and the complainant, or by ambiguous conduct. It is an error of law to rely on the belief that the complainant gave "broad advance consent to sexual activity of an undefined scope." And it is an error of law to infer consent from a belief about the complainant's propensity to engage in sexual activity: Barton, at paras 98-100. [36] The accused cannot rely on the defence unless they took reasonable steps to ascertain consent. The steps taken must be objectively reasonable, and the reasonableness of those steps must be assessed considering the circumstances known to the accused at the time. The focus of the inquiry must be on the steps actually taken by the accused to ascertain the complainant's consent as opposed to the accused's pre-existing beliefs about what constitutes consent. In this regard, the Supreme Court identified a non-exhaustive list of 'steps' that are clearly not

reasonable, as well as circumstances in which the threshold for what is reasonable may be elevated: Barton at para. 107: [107] For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. This is a particularly acute issue in the context of unconscious or semi-conscious complainants (see Sheehy, at p. 537). [108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one

another, thereby raising the risk of miscommunications, misunderstandings, and mistakes. At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. Legal Principles Regarding the Assessment of Credibility and Reliability of Witnesses [37] In this case the accused contests the lack of consent element of the actus reus. More specifically, the accused contests the complainant's claim that she did not subjectively consent: The complainant says she did not consent; the accused argues that this claim of an absence of consent is not credible. [38] The accused also submits that his evidence should be accepted, as it proves that the complainant did in fact consent, or at a minimum, it raises a reasonable doubt about her claim of a lack of consent. [39] When a complainant testifies that she did not consent, and the accused contests this, the court must assess the credibility and reliability of the complainant's evidence. As explained in Ewanchuk: [29] While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not

want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [30] The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [40] Where the accused testifies, the analytical framework set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93 (S.C.C.), is intended to ensure that the process of reviewing the evidence is not a credibility contest, the act of choosing one version of events over the other: 1. If I believe the evidence of the accused, I must acquit; 2. If I do not believe the testimony of the accused but am left with a reasonable doubt, I must acquit; and, 3. Even if I am not left with a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I

am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [41] Furthermore, since W.(D.), appellate courts have suggested a fourth step: where the trier of fact, after careful consideration of all the evidence, is unable to determine whom to believe, the accused must be acquitted: R. v. C.W.H., 68 C.C.C. (3d) 146, 1991 CanLII 3956 (B.C.C.A.). [42] A trier of fact can accept some, all or none of a witness's evidence, so rationally the W.D. instruction, particularly the first two steps, must be in reference to exculpatory evidence. This point is helpfully articulated in A.R., at para. 49: [49] I also note that the first two elements of the W.(D.) analysis "assume that the [trier of fact] should decide whether or not they believe the exculpatory evidence of the accused": R. v. C., 2004 NSCA 135 at para. 23 (emphasis added). Yet, in certain cases an accused person may provide both inculpatory and exculpatory evidence: see e.g., R. v. J.H.S., 2008 SCC 30 at para.

10. That being so, it remains my overarching task to determine if I am left with a reasonable doubt as to the accused's guilt, after considering his evidence (whether inculpatory or exculpatory) in context, and considering the evidence as a whole: see R. v. Matthias, 2009 BCSC 1729 at para. 102 (albeit in reference to a charge of murder). [43] The most fundamental point to be drawn from W.D. is that a lack of credibility on the part of the accused does not equate to proof of his guilt or automatically lead to the conclusion that the complainant is credible. [44] In this case I am required to assess the credibility and reliability of the conflicting evidence of the accused and the complainant. Because the accused has testified, I must remain ever vigilant to avoid treating conflicts between the accused's evidence and that of the complainant, and other witnesses, as merely a binary choice between two versions of events, often referred to as a credibility contest, as such would undermine the presumption of innocence, and is otherwise incompatible with the Crown's burden to prove guilt beyond a reasonable doubt. [45] That does not mean of course that the evidence of the accused is assessed in isolation. It does not offend the presumption of innocence, or undermine the burden of proof, to disbelieve all or some of the evidence of the accused because it conflicts with other cogent or

credible evidence: R. v. Redden, 2021 BCCA 230, at paras. 80-81. [46] The concern about avoiding a credibility contest, while assessing the evidence of the accused in the context of all the evidence, is explained in R. v. Pangan, [1996] B.C.J. No. 2616, 1996 CanLII 2461 (B.C.C.A.), at para. 40: [40] It is important to examine what we mean when we say that "a trial is not a credibility contest" because in some ways that statement can be misleading. The jury has two functions - to weigh the evidence for the purpose of reaching conclusions of fact, and, to apply the law to the facts that they find. When the jury engages in the first function - weighing the evidence - a trial is, in a sense, a "credibility contest". In a case such as this where the accused and the complainant give opposing versions of what occurred, the jury must try to determine who and what to believe, and, who and what not to believe. The jury cannot convict unless it accepts the evidence of the complainant as true, and rejects the evidence of the accused as untrue. The vital point is that the jury must not be left with the impression that they have no choice but to pick one version of events over another. The members of the jury are entitled to reach the conclusion that the issue of credibility cannot be resolved. Once the members of the jury have reached whatever conclusions they choose to draw from the

evidence they must then apply the law to their findings of fact or their lack of findings, as the case may be. It is here that they must apply the law as expressed in R. v. W.(D.), supra. [47] The application of the methodology set out in W.D. is discussed in R. v. P.A., 2024 BCCA 93, at paras 31-37: [31] Having said that, the law recognizes that in deciding whether the Crown has met its burden of proof, the fact that a judge or jury has assessed the credibility and reliability of the Crown's witnesses before they have assessed the evidence of the defence will not of its own amount to error: R. v. Gerrard, 2022 SCC 13 at para. 2; R. v. C.L.Y., 2008 SCC 2 at paras. 11-12 [C.L.Y.]. The W.(D.) framework need not be "religiously followed": C.L.Y. at para.

7. See also R. v. J.H.S., 2008 SCC 30 at para. 13; R. v. Boucher, 2005 SCC 72 at para. 29; R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 533, 1994 CanLII 76. [32] Instead, what is critical is that the trier of fact understand that the verdict(s) cannot be grounded in a preference or choice between the evidence of the Crown witnesses and that of the accused. The fundamental question to be answered in every case is whether, on the whole of the evidence, the judge or jury is left with a reasonable doubt about the guilt of the accused: C.L.Y. at para. 8; R. v. Vuradin, 2013 SCC 38 at para. 21. [33] The law is also clear that the evidence of the Crown's witnesses and any evidence adduced by the defence, including the testimony of the accused, must not be examined in isolation. As aptly stated by Justice Fichaud in R. v. Lake, 2005 NSCA 162 at para. 22: "The analysis of both the accused's testimony and the Crown's evidence is done with full knowledge of all the evidence that has been adduced at the trial" (emphasis added). [34] For that reason, it is acceptable for judges and juries to compare and contrast the evidence of the complainant and the accused when conducting their credibility and reliability assessments: R. v. A.J.K., 2022 ONCA 487 at para. 32 [A.J.K.]. There is nothing inherently troublesome about doing so. It does not mean that the trier of fact has chosen the evidence of one

over the other, which would be impermissible. Rather, by comparing and contrasting the evidence, judges and juries assess the strength and the frailties of the testimony provided by each witness with reference to, and in light of, their respective narratives and the remainder of the case. This exercise " will often reflect a proper consideration of an accused's evidence in light of the evidence as a whole ": A.J.K. at para. 32, emphasis added. See also R. v. Redden, 2021 BCCA 230 at para. 81; R. v. Arno, 2022 SKCA 55 at para. 11; R. v. Garford, 2021 ABCA 338 at para. 32. [35] Comparing the evidence of the complainant and the accused to understand where it diverges, where it might converge, and the extent to which each witness's testimony is consistent or inconsistent with other parts of the evidence, is a natural part of the holistic assessment a trier of fact must apply when deciding whether the Crown has met its burden of proof: Gerrard at para. 2; R. v. J.M.H., 2011 SCC 45 at para. 31 [J.M.H.]; R. v. Morin, [1992] 3 S.C.R. 286 at 295-296, 1992 CanLII 40. [36] When comparison and contrast has occurred and the evidence has properly been considered as a whole, the acceptance of a complainant's testimony and of other Crown evidence that is inconsistent with the accused's denial of wrongdoing can, without more, provide a sufficient explanation for disbelieving the accused or for

finding that the evidence of the accused does not raise a reasonable doubt: R. v. Van Deventer, 2021 SKCA 163 at paras. 21, 25; R. v. Li, 2023 BCCA 47 at para. 86; Redden at para. 81; Vuradin at para. 19; R. v. J.J.R.D. [2006], 218 O.A.C. 37, 2006 CanLII 40088 at paras. 42-43 (C.A.), leave ref'd, [2007] S.C.C.A. No. 69. [37] This is not because the trier of fact has simply preferred the testimony of the complainant over that of the defence and made a choice between the two. Rather, it is because the acceptance of the complainant's evidence will have necessarily considered and accounted for all of the other evidence in the case, including any evidence adduced by the defence, and the judge or jury will have asked whether that evidence was to be believed or raised a reasonable doubt. The comparing and contrasting of evidence will have also facilitated the trier of fact's identification and analysis of conflicts between the Crown's evidence and the defence evidence and their determination of whether any unresolvable conflicts left them with a reasonable doubt: R. v. Challice, [1979] 45 C.C.C. (2d) 546 at 556 (Ont. C.A.), 1979 CanLII 2969. [48] There is no presumption that any witness is telling the truth. The evidence of all witnesses, including the accused, must be assessed in the context of all the evidence: R. v. Hurst, 2019 BCSC 307, at para. 10. [49] The memories of all the

witnesses in this case were impacted by the passage of time and the effects of alcohol. It is therefore helpful to reiterate that credibility and reliability are different concepts: credibility focusses on the believability or veracity of a witness's evidence, whereas reliability is concerned with the witness's ability to accurately observe, recall and recount the events in issue. A credible witness may be unreliable; a witness who is not credible cannot give reliable evidence: A.R., at para. 51. [50] As well as impacting memory, alcohol may cause people to behave in ways they otherwise would not if they had been sober. Therefore, additional care is required when assessing the evidence of someone who was intoxicated at the time of an incident, especially when they have only a partial memory of an incident and make statements about what they would have done to fill the gaps in their recollection: R. v. Al-Akhali, 2025 ONCA 229, at para. 54. [51] In R. v. Kruk, 2024 SCC 7, Martin J., for the majority of the Court, considered the importance of common sense in assessing the credibility and reliability of witnesses at paras. 71-75: [71] Testimonial assessment is largely based on inductive reasoning and the particular circumstances of the case: it requires the trier of fact to make assessments based on probable interpretations of the evidence (R. v. Calnen, 2019 SCC 6, [2019] 1

S.C.R. 301, at para. 111; R. v. Munoz, (2006), 86 O.R. (3d) 134 (S.C.J.), at para. 23). Testimonial assessment therefore necessarily depends on the life experience a trial judge brings to their task, which, in turn, informs the common-sense inferences they draw from what they see before them. [72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff'd 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact "must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses" (para. 6). Finally, in R. v. S. (R.D.), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges -- though of course not a substitute for evidence, and subject to appropriately circumscribed limits -- "is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility", and assists with a "myriad of decisions arising during the course of most trials" (para. 13). Reasoning

about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment. [73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of "the way things can and do happen"; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or "inherently improbable" (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well established principles guiding credibility assessment -- including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth -- and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was

credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as "hmm ... let me see", long pauses, or failure to provide much detail). [74] In J.C., the court held that there is no bar on relying on common sense or human experience to identify inferences arising from the evidence -- otherwise, circumstantial evidence, which depends on bridging gaps between the evidence and the inference drawn using human experience, would not be admissible at all. The court also correctly observed that there is no bar on using human experience to draw inferences from evidence. Otherwise, many other well-established principles of evidence -- such as the idea that fleeing the scene or destroying evidence after a criminal offence is generally proof of concealment of guilt -- would also be put at risk. [75] Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on "ungrounded" assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the

immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions. [52] In R. v. P.A., 2024 BCSC 282, at para. 36, Madam Justice Watchuk conveniently set out a non-exhaustive list of factors courts have considered in assessing credibility and reliability: (a) The witness's ability to observe the events, record them in memory, recall, and describe them accurately. (b) The external consistency of the evidence. Is the testimony consistent with other, independent evidence which is accepted? (c) The internal consistency of the evidence. Does the witness's evidence change during direct examination and cross examination? (d) The existence of prior inconsistent statements or previous occasions in which the witness has been untruthful. (e) The "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? (f) Motives to lie or mislead the court, namely bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage and should not be considered when assessing an accused's testimony. (g) The attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive, or neutral? In assessing demeanour, a judge should

consider all possible explanations for the witness's attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, it is unwise to rely on this factor alone. Myths and Stereotypes [53] The law recognises that assumptions about human behaviour are not unbridled. The courts have stated in clear and unequivocal terms that myths and stereotypes about sexual assault complainants have no place in the adjudicative process. Some discredited myths and stereotypes about sexual assault complainants include: [See Kruk, at para. 36] a. A complainant who remained passive or failed to resist must have consented. b. A victim of sexual assault will scream and yell when the assault is happening. c. A victim of sexual assault will physically resist and fight back. d. Victims of sexual assault will behave in a certain, specified manner, for example they will avoid the accused or tell someone right away. [54] The behaviour of a person after a traumatic event such as sexual assault is not predictable. For example, the fact someone delayed reporting is not a basis upon which to conclude they are not credible. In R. v. DD, 2000 SCC 43, Justice Major stated at para. 65: [65] A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault

will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. [55] Further in R. v. A.D.G., 2015 ABCA 149, the Alberta Court of Appeal stated at para. 33: [33] No inference should be drawn regarding a complainant's credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided "without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma": R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD, 2000 SCC 43 at para 63, [2000] 2 SCR 275. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Evidence of Other Sexual Activity Admitted Pursuant to s. 276 of the Criminal Code [56]

Some of the evidence of the accused, as well as suggestions made to the complainant during cross-examination, about sexual activity on the couch before the incident in the bedroom, was only admitted after I ordered a hearing be held to determine its admissibility. This evidence was admitted for the sole purpose of testing the credibility of the complainant's evidence about what happened earlier in the evening. [57] Admissible evidence of other sexual activity cannot be used to support an inference that the complainant consented to subsequent sexual activity, nor can it be relied upon as a basis upon which to conclude that the complainant is generally less worthy of belief.

OVERVIEW OF THE EVIDENCE [58] I will now provide a detailed summary of the evidence of the witnesses in the order in which they testified. My failure to mention a piece of evidence in this summary does not mean I have not considered it. I emphasize that I have arrived at my decision in this case after a careful consideration of all the evidence. V.S. [59] In September 2020, V.S. was 19, working at North Westside Fire Rescue [Firehall], in Vernon, BC. She grew up on Westside Road with a lot of people who also joined the Firehall. [60] V.S. knew the accused Mr. Charlebois from the Westside Road community and from the Firehall, where Mr. Charlebois also worked. She recalled seeing Mr. Charlebois at Firehall social events. V.S. described Mr. Charlebois as "considerably older than me" - "he's at least five years older than me." She did not consider Mr. Charlebois a friend, although she did 'follow' him on Instagram. [61] V.S. also met Ms. Drummond at the Firehall. Approximately two months before September 2020, during a period of V.S.'s life when she was having "issues" with her parents, Ms. Drummond offered to rent V.S. a room in the house she lived in with her spouse, Mr. Erwin. [62] V.S. testified that her bedroom contained a queen-sized bed pushed into the corner on the left and opposite wall to the door. Next to the bed was a 'cubicle' or dresser, a closet and a television.

There was also a window above the cubicle. Evening/Morning of September 27/28 [63] V.S. testified that she completed her shift at Rosters Sports Club in Vernon at around 9 p.m. and started to drive home. V.S.'s plan was to do some schoolwork and go to bed. [64] When she walked into the house she was surprised to see Mr. Charlebois. She recalled they both looked surprised to see each other. V.S. did not know that Mr. Charlebois knew Mr. Erwin and Ms. Drummond. V.S. disagreed with the suggestion that she was happy to see Mr. Charlebois. [65] She recalled that there was some food and open drinks on the coffee table. It appeared to V.S. that they had all begun to drink before she arrived, so she started to drink. The mood was friendly and lighthearted. Later they started to play a drinking game, in which the two women and then the two men went to the kitchen to mix different shots. [66] Everyone was drinking shots at the same time although they were not drinking them "back to back". She did not remember how many shots she had in total. She acknowledged she could not remember what else she was drinking. She was quite certain that Mr. Erwin and Mr. Charlebois were drinking beer between shots. She could not confidently say how many drinks she had during the evening. [67] V.S. testified that she had been texting with her sister all night. At 11:48 pm on September 27, V.S. sent a video

message to her sister from what appears to be the bathroom. V.S. tells her sister that "Dalton is here, I am really partying and getting drunk". Reviewing this video, I find that V.S. was mildly intoxicated at this time. [68] At 1:32 a.m. V.S. sent a video message to her friend, Maisa, while she was in the bathroom apparently urinating. From the appearance of her droopy eyelids, V.S. appears to be sleepy, whether from tiredness or intoxication, or both is unclear. V.S. tells her friend: "Ok, I am really fucked. This guy from the firehall, he was on it like a year ago, he's here and he wants to fuck me, I don't know man." She was referring to Mr. Charlebois. [69] In cross-examination, V.S. acknowledged that "I don't know man" meant she was uncertain, at that time, whether she was going to have sex with Mr. Charlebois. Throughout the course of the night, she perceived that Mr. Charlebois was sexually interested in her because he was flirting with her and putting his hand on her leg while the others were encouraging them to kiss. V.S. had no recollection of sitting on top of Mr. Charlebois. She testified that it did not sound like something she would do but could not confirm whether it happened or not. [70] V.S. was asked if she had said anything about the two of them planning to have sex: A: I do not recall me saying anything about the two of us having sex. And I would not have

said anything about that. Q: Why not? A: Because not only was I not sexually experienced at the time, Dalton was somebody who was highly advised for me to stay away from, based on his actions in his personal life. [71] In response to suggestions during cross-examination that she was physically attracted to Mr. Charlebois, V.S. responded, "not whatsoever"; Mr. Charlebois "is the type of person [she] would never want to have any type of sexual activity with." V.S. disagreed with the suggestion that if she had had consensual sexual activity with Mr. Charlebois, it would have negatively affected her reputation with her family, because she did not have a good relationship with her parents anyway. [72] V.S. testified that she could not remember 'making out' or kissing Mr. Charlebois. She could not definitively say she did not kiss Mr. Charlebois because her memory was impaired by alcohol, but agreed it is possible she did 'make out' with him on the couch. [73] It is important at this stage to make note of the very limited relevance of the evidence of other sexual activity. The evidence of making out or kissing on the couch was admitted pursuant to s. 276 only for the very limited purpose of assessing the credibility of the complainant [74] I note also that the comment by the complainant that she was not sexually experienced at the time, was a spontaneous comment in response to an

open-ended question. I am satisfied that counsel was not trying to elicit evidence about the complainant's prior sexual history. However, it is a reminder that counsel should be cautious using open ended questions in cross-examination, particularly where there is a risk that a complainant may volunteer evidence in response to the question about their sexual experience. [75] Neither the Crown nor the defence made submissions about the use that could be made of this evidence, for example, whether it can be relied upon to support the complainant's assertion that she was not thinking about having sex with the accused. [76] The law is now clear that all prior sexual activity evidence, including evidence that a complainant has not engaged in sexual activity, whether tendered by the Crown or the defence, should be screened to ensure that it has significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice. The evidence of V.S. that she was not sexually experienced cannot be used to support the myth that her sexual inexperience means she was less likely to have consented: R. v. Kinamore, 2025 SCC 19, at paras. 71-73. [77] I consider this portion of her evidence to have no probative value and will not rely upon it. [78] Equally importantly, whatever sexual activity occurred earlier in the evening cannot be relied upon to

support an inference that the complainant was more likely to have consented at the time of the alleged sexual assault. It is an error of law to assume consent was implied by the circumstances, by the relationship between the accused and the complainant, or by any ambiguous conduct. Specifically, it would be an error of law to rely on a belief that by making out with the accused the complainant gave advanced consent to further sexual activity, or to infer she consented to subsequent sexual activity from a belief about the complainant's propensity to engage in sexual activity based on any kissing or flirting on the couch. [79] V.S. testified that she had a shift starting at noon, so she and Ms. Drummond decided to go to bed, leaving Mr. Charlebois and Mr. Erwin in the living room. She described her level of sobriety as "nowhere near sober quite intoxicated." She recalled wearing sweatpants and a hoodie to bed, and that she was under a blanket and a duvet. The door to her room was closed but not locked. She went to bed alone. [80] At 1:43 a.m. shortly before she "passed out" she sent another video message to Maisa. The video captures V.S.'s face as she is lying in bed, her eyelids appear to be mainly shut, opening only partially and slowly. She is speaking slowly, akin to mumbling. V.S. is obviously having difficulty holding the phone stationary while she is recording the

video. [81] During the video message V.S. says: "I'm so fucking drunk, I went to bed without Dalton, thank fuck. I am literally the drunkest I have been in a really long time. I have to work tomorrow at 12, I'm going to off myself. Fuck that. Anyways, goodnight, I love you . hear the background, yeah that was my night". [82] V.S. testified that the voices you can hear in the background of the video message are Mr. Charlebois and Mr. Erwin, who had remained in the living room. V.S. confirmed she said she was going to "off herself" to be dramatic, frustrated that she was going to be hungover in the morning. She testified that the statement "thank fuck" was "more of a relief statement relieved that [she] did not go to bed with Dalton." She explained that she was relieved that she was finally in bed by herself and no longer had someone "making passes at me." V.S. testified that after sending this video to Maisa, she "passed out." [83] It is readily apparent from reviewing this video that V.S. is very intoxicated, and that her level of consciousness is waning. However, V.S. was still able to competently operate her phone by choosing to save the video before using Snapchat to send it. Despite a distinct memory of going to bed wearing a hoodie, from the video it is clear V.S. was wearing a 'tank top' to bed and not a hoodie. [84] In cross-examination it was suggested to V.S. that

after going to bed she may have got up to get a glass of water, to get some food, to tell Mr. Erwin and Mr. Charlebois to be quiet or to go to the bathroom. V.S. emphatically denied each suggestion. It was also suggested to V.S. that she had got out of bed because she was feeling sexually attracted to Mr. Charlebois and she wanted to be with him, to which she responded: "I did not get out of bed to go be with Dalton, because I was not sexually attracted to him". [85] It was suggested to V.S. that she went into her bedroom with Mr. Charlebois, to which she responded: "I would strongly deny that suggestion. I specifically went to sleep by myself and expressed that to my sister, that thank fuck that I went to sleep without Dalton." [V.S. confirmed the message was sent to Maisa and not her sister]. [86] V.S.'s next recollection was waking up to a person on top of her, holding her down. It was still dark, but from the light that came in through the bedroom window she could see it was Mr. Charlebois. Although she went to bed clothed, she awoke naked. Mr. Charlebois was straddling her, his legs either side of hers, and he had his hands pressing down on her chest, near or on her collar bones, his penis was inside her vagina, and he was thrusting. [87] In cross examination she clarified that she "didn't specifically take note of where his legs were, but if you can imagine a man sexually

assaulting a woman while she's laying on her back. That was the position that we were in. He was on top of me. In a fashion that would allow him to insert his penis inside of my vagina while I was sleeping." [88] V.S. recalled Mr. Charlebois removing his penis, flipping her over, and continuing to insert his penis inside of her from behind. She initially testified that she did not know if his penis was in her vagina or her anus, before saying she was quite confident it was not her anus because she would have noticed. She recalled that she was not awake through the "entirety". [89] V.C. never told Mr. Charlebois that she wanted to have sex with him. She could not recall telling him to stop. She could not remember if he said anything to her. [90] In cross-examination, V.S. confirmed that it was her "belief" that Mr. Charlebois was having sex with her while she was "passed out". She conceded she could only remember "bits and pieces from the sexual encounter"; she denied the suggestion that she could not remember anything about the "sexual incident" with Mr. Charlebois. [91] It was suggested to V.S. that Mr. Charlebois never held her down, never flipped her over, did not penetrate her from behind, and never had anal sex with her, all of which she denied. She also denied that they had undressed each other, engaged in mutual kissing on the bed, or that consensual sexual intercourse

ended because Mr. Charlebois lost his erection. Furthermore, V.S. denied that she "gestured" for Mr. Charlebois to continue to have sex with her from behind by voluntarily rolling over and raising her buttocks. [92] Her next memory was waking up in the morning. Mr. Charlebois was awake beside her. She recalled he said, "how hot would it be if we got it on right now while they [Ms. Drummond and Mr. Erwin] were cooking breakfast ..." V.S. testified that she must have turned down the pass. [93] V.S. described having a lot of pain in her vagina and anus; she could barely walk or sit down, and it really affected her when she was driving. It hurt to go to the bathroom. This lasted for a week. [94] In cross-examination it was suggested that she did not really remember what had happened during the night, but rather she drew an inference about what had happened from the pain. She responded: A. I recalled waking up in the middle of the night to Dalton on top of me, holding me down, and then he had flipped me over. And I recalled zoning out on my cubical while he continued to assault me. At the time that I was awake and in that moment, I could not conceive that I was awake and that was happening to me, so in that moment I thought it was a dream and the next morning once I woke up naked beside him after I had gone to bed by myself fully clothed, I realized that instance where I had woke up

was really in fact not a dream and I had woken up to him sexually assaulting me. [95] After they both got out of bed and put clothes on, they went into the living room where they were greeted by Ms. Drummond, Mr. Erwin and another man. Someone made the comment "How was your night?" V.S. "removed herself from the situation" and went to sit on the patio. She overheard Ms. Drummond ask Mr. Charlebois how his night was, to which he commented that he had woken up to her birth control alarm, laughing at that being a good sign, insinuating that he and V.S. had sex together. V.S. agreed that the tone in the morning at breakfast was lighthearted among all the people there, including Mr. Charlebois. [96] V.S. stated that she was still drunk when she woke up and that she felt like a zombie. [97] V.S. testified that she went outside and started her vehicle. Mr. Charlebois came to the driver's side, kissed her, and said that he hoped she had a good day at work. In cross-examination V.S. agreed that she may have hugged Mr. Charlebois back but denied that they kissed each other. [98] Later in the day Mr. Charlebois messaged her, asking if she remembered more of yesterday than he did. She responded that she did not, although she was not being truthful when she said that. V.S. assumed that Mr. Charlebois was texting to "assure I didn't remember what happened the night before." V.S. told both

her sisters later that day about what had happened to her. [99] In cross examination it was suggested to V.S. that the morning after the incident she was not sure that an assault had occurred: Q: When you were at work the next morning after the incident, you still weren't sure that an assault had occurred, correct? A: In what sense? Q: You weren't really sure what had happened the next morning at work. A: I was in shock, although I probably didn't want to admit it, I knew that he had sexually assaulted me. I could feel the effects of that. Q: There were times after the fact that you thought that maybe you had done something to give him the impression that you wanted to have sex with him, yes? A: There was nothing, no impression I gave him that said come into my bedroom while I'm sleeping and sexually assault me. So no, I would say no. Q: You sometimes felt like it was your fault correct? A: I grappled with the situation and the shock and utter disgust that I felt within myself because of what happened, I never truly believed that there was anything that I had done to ask for that to have happened to me, no. Q: After the fact you had felt like um, the incident was like a fever dream, yes? A: Yes, the incident where I woke up, the part that I woke up for with him on top of me and us not exchanging words, and then him flipping me over, in that moment when I woke up I could not

conceive that I was actually awake and that that was reality, so it felt as though I was dreaming in that moment. Q: I'm going to suggest to you in fact, that it could have been a dream. A: I am going to deny that suggestion based on how I felt the next morning physically in regards to my vagina and my anus. [100] In cross-examination, V.S was asked about why she did not go to the doctor. Initially, V.S. testified it was because "the thought of somebody looking at my private parts after what had happened to me repulsed me." She then testified that the thought of going to the doctor, or the hospital, never crossed her mind because she did not think she knew the details of what to do after being sexually assaulted. Although she may have known back then it was possible to have a sexual assault examination done, she was not certain she did. Ultimately, V.S. said she was focussed on getting to work and that she was still in shock dealing with what had happened the night and morning before. She denied that the reason why she did not go to the doctor was because she did not in fact have any injuries. [101] V.S. testified that she also had small bruises along her collarbones, below her neck. In cross-examination, V.S. recalled that she took photographs of those bruises a couple of days later but deleted them because she did not want to keep seeing them on her phone's camera roll. She

agreed that she could have saved the photos in some other folder or on a USB, or even sent them to somebody else, however, she did not because she had "no intention of dealing with this encounter." [102] V.S. testified that it was never her intention to go to the police but after suffering from anxiety and going to see a therapist she finally found the courage to go to the police in January 2023. Briony Drummond [103] Ms. Drummond was 33 years old in 2020 and lived in Vernon with her partner Josh Erwin. She confirmed that she had known Mr. Charlebois for several years. She knew V.S. from the Firehall. V.S. started living with her and Mr. Erwin in August 2020. [104] Ms. Drummond could recall the occasion when Mr. Charlebois and Mr. Erwin were hanging out at her house because it had only happened once. Her recollection was that she got home from work at about 5 p.m. to find Mr. Charlebois and Mr. Erwin drinking after they had been dirt biking. She recalled eating "something" and then having a few drinks. V.S. arrived home a few hours later. [105] Ms. Drummond described the evening as a 'normal get together - drink, food and banter'. They were listening to music, chatting and having shots - just friends having a good night. She had maybe two or three shots. She did not recall anyone being "insanely drunk". She could not recall any drinking games but did say they were drinking

shots from liquors that were left on top of the fridge. [106] Ms. Drummond recalled that she was the first to go to bed. She could not remember the exact time but thought it was "maybe 10 p.m." She recalled that Mr. Erwin came to bed at some point, "maybe after midnight". [107] In cross-examination Ms. Drummond agreed that the evening was friendly. V.S. seemed happy to see Mr. Charlebois and they were getting along well catching up as friends do. She thought there was a little flirting - which she clarified to mean they were "chatting, looking at each other, laughing, just normal social things." The couch was 'L' shaped, Mr. Charlebois and V.S. were sitting on one side, close together, but not snuggling up. She did not see V.S. sitting on Mr. Charlebois, playing with his hand or any kissing. [108] Ms. Drummond recalled that she was the first to get up in the morning. She got some water and went out onto the deck. She then made herself some toast. She could not recall making food for everyone else. She saw Mr. Charlebois and V.S. come out of her room - she did not know who came out first. The overall tone was lighthearted, very normal. Everyone was joking about the two of them "hooking-up". She recalled everyone laughing when Mr. Charlebois made a comment about waking up to V.S.'s birth control alarm, the implication being he and V.S. had sex the night before. Overall, both V.S.

and Mr. Charlebois were being lighthearted - there were "no bad vibes", "no tension", "just normal to me." Dalton Charlebois [109] Mr. Charlebois is currently 29 and was 24 at the time of the incident. He has a grade 11 education and has completed many work related courses. He is currently employed for a diamond drilling company at a gold mine in northern British Columbia. He is in a common-law relationship. [110] Mr. Charlebois's first memory of September 27, 2020, was being at home and then doing yard work, cleaning up the mess from a willow tree. He was contacted by his friends Mr. Erwin, Tyler and Bob, to go out on a boat. They picked him up around noon. They tried to go fishing for a bit. [111] While on the boat, Mr. Charlebois had two to three beers or seltzers throughout the course of the afternoon "as did everyone else." These drinks were in standard sized cans, and 3-5% alcohol "depending, I'd imagine." [112] Mr. Erwin messaged Mr. Charlebois to come to his house. He arrived between approximately 4 and 5 in the afternoon. Mr. Charlebois said that he had a memory of arriving at the house: it was a beautiful day out, Josh was there in the garage or shop, they began to socialize, talking about bikes and riding trails in the area, and drinking beer. He recalled that the garage was adjacent to the house, so they may have been "meandering" between the deck and the garage. In

cross-examination he testified that he had two to three beers in the garage. [113] After Ms. Drummond arrived, they had more drinks and "she made us some food", and between 6 and 7 p.m. they "took it inside" and started watching videos. They were socializing, "nothing out of the ordinary". They had some snacks, "appy style oven cooked food" and chips and dips. Mr. Charlebois testified that he could not remember specifically what they were eating, but then recalled it was chicken wings or 'mozza' sticks. [114] Everyone was hanging around on the couch when V.S. came in the door carrying schoolbooks. He estimated V.S. arrived at 8'ish. As of September 27, 2020, he described V.S. as somewhere between an acquaintance and a friend; she was more than someone you would see on the street and have a quick conversation with, but not necessarily a close friend. [115] Mr. Charlebois did not know she lived there; they both exchanged a surprised look as neither expected to see the other. They all started socialising and V.S. sat down on the couch and started drinking. The tone was friendly; everyone was having a good time. Mr. Charlebois described how he had not seen V.S. since the Firehall. In cross-examination he said that they were drinking heavily after V.S. arrived. [116] At around 9 to 9:30 they started to make and drink shots, quite steadily for a short period of time until they had

consumed between 6 and 8 shots each. There was an abundance of alcohol on top of the fridge, and it was a free for all, whatever they decided to put into a glass. They would take turns back and forth into the kitchen, choosing whatever they wanted to fill four shot glasses with and then bringing them back to the table by the couch, where they would all "shoot them back". There were intermittent breaks for short periods between shots, it was "pretty heavy on." The shot making game continued for one to two hours, and they all likely drank other things in between. [117] Mr. Charlebois testified that during the evening V.S. continuously became friendlier. She was sitting "directly adjacent" on his right side, their legs were touching, and she was playing with his right hand. They were flirtatious throughout the evening, the "tension in a sense continued to build throughout the evening." At one point V.S. sat on his lap and they started kissing and "making out". He described making out as "vigorous and continuous kissing." [118] Mr. Charlebois was not aware if anyone else was present when they were making out. He did not know if the making out occurred before or after Ms. Drummond went to bed. [119] Mr. Charlebois's "next memory" after making out, was V.S. and him going down the hallway to her bedroom, where once they entered, they were standing and continuing to make out by the

side of the bed. The lights were off. He had "no idea" where Mr. Erwin was when he went to V.S.'s bedroom. In cross-examination he stated: Q. So you don't recall whether V.S. came out of her bedroom and got you from the couch or where you were? A. Well, I only remember us going to the room together, I don't know how that correlated as to the timeline, whether she came out specifically to get me or she was going to the bathroom, or whatever, but I remember us walking to the room and just proceeding, uhm I don't know where Josh was, I honestly don't remember. [120] Mr. Charlebois has no memory of V.S. going to her bedroom at any other point in the evening. When it was suggested to him in cross-examination that V.S. went to bed earlier in the evening than him, he testified, "I cannot confirm nor deny that. I don't know what she was doing throughout the evening at points." [121] Mr. Charlebois was wearing jeans and a T-shirt, that he brought with him on the boat. V.S. started to take his shirt off, "from the bottom up I suppose lifted my arms and she pulled it off." He removed her shirt "quite similarly", before V.S. pulled him "backways" onto the bed. V.S. then removed her pants and he removed his pants. At that point they were still making out. [122] Mr. Charlebois then testified that V.S. "was laying on her back, that's when I heard we began to have vaginal intercourse. V.S. was

laying on her back and I was between her legs. Uhm, that didn't last very long as I couldn't even keep an erection at the time. V.S. then rolled over, uhm and propped herself to me and I couldn't even use my penis at the time, uhm, so from what I can recall there was no penetration when she had rolled over. We both exchanged a chuckle about it. I rolled over onto the right side, she curled up onto my shoulder and uhm we both continued to pass out." [123] Mr. Charlebois was asked whether at the time he had a belief that V.S. wanted to have sex with him: "Yes, I did. We were having a great time in the living room, we were making out on the couch, she led me to her bedroom, she was taking my clothes off, uhm she continued to kiss me, and pulled me into the bed, prior to us engaging in sexual activity, so yes, yes I did". [124] In respect of how intercourse was initiated, Mr. Charlebois testified that "we were now laying on the bed, making out and she had her legs up in the air and I inserted my penis in her vagina, while making out she yeah." [125] In cross-examination he gave this evidence: Q. You said when you were kissing in the bedroom, she pulled you onto the bed correct? A. That's correct. Q. And you took that as an indication she wanted to have sex with you? A. Well we were making out at the bedside, and she pulled me on top of her as she took off her pants and underwear

after removing my shirt and continued to make out with me in the bed, uhm that was my understanding of implied consent as we were now on top of each other naked and she was continuing to make out with me, we were both now naked in her bed. Q. You placed your penis in her vagina? A. That is correct. Q. So you never once verbalized, do you want to do this? A. I don't recall that we did or we did not have verbal communication at that time. Q. And as you testified earlier that you were extremely intoxicated at this point? A. Not extremely, but I was fairly intoxicated. Q. V.S. was extremely intoxicated, correct? A. That's subjective. I mean she was intoxicated, but she was coherent and reciprocal of everything that we were engaging in. [126] It was suggested to Mr. Charlebois that in the video message V.S. sent at 1:43 a.m. V.S. looked extremely intoxicated. He responded: "I mean she definitely looks intoxicated I can't speak to her level of alcohol tolerance or implication on her." He agreed she appeared to be slurring her words, but he suggested she had her eyes open during the video. He was asked if her level of alertness was the same as when he was in the bedroom with her: "No she was very coherent and reciprocal with everything; her to be standing and leading me to her room and making out with me at her bedside, removing my clothes, uhm, her motor skills were entirely

intact." [127] Mr. Charlebois denied ever having his hands on her chest or collar bone area, recalling that he had one hand on her hip and the other on the "bedside." He also denied turning her over. He recalled that she turned over on her own, had her buttocks in the air, but he did not have an erection at all so there was "no insertion at that point"; they chuckled, and it was more of an embarrassment than anything. He interpreted her propping herself up as meaning she still wanted to have vaginal intercourse. He denied that they ever had anal sex. [128] In direct examination, Mr. Charlebois described V.S.'s level of alertness throughout their sexual activity as her being "conscious and engaged in everything we were doing at that time. V.S. was reciprocal with every action that we engaged with one another." At no time during the sexual activity did she pass out. He did not have sex with her while she was sleeping. [129] When it was suggested to Mr. Charlebois in cross-examination that V.S. woke up to find him engaging in sex with her, he responded: "I disagree with that, as we've previously stated she was conscious and reciprocal of all actions that occurred, all of which has been previously documented." [130] In cross-examination it was suggested to Mr. Charlebois that at no time did V.S. tell him she wanted to have sex. He responded as follows: "Uhm, she never verbally

vocalized from what I recollect as I mentioned earlier, there very well could have been conversation at a point, but there was definitely physical implications that progressed right to the point where she brought me to her room, unclothed me, continued to engage in uhm sexual activity, foreplay etc. up until the event." [131] It was then suggested to Mr. Charlebois that V.S.'s behaviour earlier in the night led him to think V.S. wanted to have sex with him: A. Uhm, I would not necessarily say that it led me to believe she wanted to have sex with me. We, uhm had social evening, as previously described, certain things that led to us to have consensual sex with each other and at no point did I assume that was the case or foreshadow, uhm, being in that situation. Q. And you never asked her with any words whether she was consenting to have sex with you? A. I cannot affirm or deny, as I mentioned, there may have been conversation, but I cannot confidently affirm that. [132] Mr. Charlebois testified that the next morning V.S. was still curled up on his right shoulder when he woke up to a 'chime' alarm on her phone which said, "take your birth control or something along that nature." He did not want to wake her so he "kind of snuck out from under her shoulder", stood up, put clothes on and "exited the bedroom." He denied saying "so hot if we got it on right now" or otherwise trying to

initiate sex again in the morning. [133] Mr. Erwin and Ms. Drummond were making food. He recalled someone asking, "how was your night," to which he responded, "well I woke up to her birth-control alarm going off - I guess that's a good sign". They all had a good laugh about it. Mr. Charlebois was asked what he meant when he said the "joke about the birth control alarm", and he responded as follows: A. I didn't mean anything derogatory, I didn't mean it in a negative manner by any means, we'd had consensual sex with each other the night prior and uhm I didn't intend on having any sexual intercourse with anybody at any point, uhm, yeah it's a proactive measure of contraception, that's out there, it was a lighthearted joke with regards to the situation." [134] In cross-examination, Mr. Charlebois agreed that the joke about birth control insinuated that he had had unprotected sex with V.S. [135] V.S came out of the bedroom not long after Mr. Charlebois, and "she was conversating and socializing with everyone" at the table in the kitchen. Food was being cooked in the kitchen. According to Mr. Charlebois everybody was having "another nice morning, everybody was just sitting there it was lighthearted, there was no negativity or tension or anything of the sort that you'd expect with an accusation like this." [136] Mr. Charlebois understood that V.S. had to go to work; she gathered her

belongings and went out to her car. Mr. Charlebois went out to say goodbye. V.S. rolled down her window, he asked how she was doing, and she said "hungover, whatever, something along those terms". He reached in and gave her a hug, and she hugged him back. As he was pulling away, they looked at each other and they "pecked each other on the lips". He wished her a good day, and she departed. He then went back into the house where he stayed until Tyler drove him home, "later that day - afternoon - whatever it was." [137] In cross-examination it was suggested to Mr. Charlebois that he had initiated the hug, to which he responded: "Uhm, well we lightheartedly had a good morning discussing the prior night's events and so on, and um I would hug my mother or friends goodbye after having seen not seen them for a while, and having had social interactions with any one of my friends and family, that was no different." [138] Mr. Charlebois was shown the video message V.S. made before she fell asleep. He agreed that the video was from that evening, and he recognized Mr. Erwin's and his voices in the background. He was asked the following questions: Q. Do you accept that V.S. would have gone to bed at some point? A. Seems that she was in bed at some point. Q. Do you remember her going to bed? A. I do not remember her going to bed. Q. Do you know if the making out was before or after this

video? A. I could not tell you. Q. Are you able to say if the sexual activity that you have described, in terms of having sex, occurred before or after this video? A. I would say it happened after that video. Q. Why would you say that? A. Josh and I were still up in the kitchen at the time uhm. [139] Mr. Charlebois acknowledged that his memory of parts of that night was impacted by his alcohol consumption. [140] Mr. Charlebois messaged V.S. later in the day to ask how her day was and whether she was hungover. He did this because the rest of them had been sitting at the house discussing how each of them had parts of the night that were foggy, and they were hungover, so reaching out seemed like the polite thing to do. [141] After being shown exhibit 5 (screenshots of Instagram messages), Mr. Charlebois testified that this was the conversation he had with V.S. the next morning. He was asked what his purpose was in sending the message, "But in all seriousness, do you remember more of yesterday than I do 😂", and he testified that he was asking her how she was doing because he wanted to see how she was doing at work, he had "no mal intention to any of these messages, no underlying narrative to these messages by any means". [142] Mr. Charlebois testified that he did not hear any more from V.S. after the Instagram messages, until he saw her at a bar where she was working. V.S.

threatened to get a restraining order against him. He testified that none of it made any sense to him, he never thought that there would be any ill-feelings. [143] In cross-examination Mr. Charlebois clarified that when he said parts of the night were foggy, he was talking about the conversations they were having, but events were largely clear. He then testified as follows: Q. After September 27 and 28, did not think about this night again, did you? A. I didn't, no, it didn't mean anything of significance to me. Q. Ok, after the messages you did not speak with V.S. again. A. Not after I saw her at Rosters. Q. Did not think about the night with her again until the police showed up? (Mr. Charlebois testified that the police came to his house in April 2024). A. No, I mean, I was in my mid 20's, I had numerous sexual encounters over my youth. It was in my mind consensual between the pair of us. She was reciprocal and we both engaged the night together and it was no different to any other sexual encounter I'd had prior, so it held no merit in my mind as to why it was significant. [144] Mr. Charlebois denied that his memory was impacted by the four years that passed before he was contacted by the police because "everything was pretty straightforward." Josh Erwin [145] Mr. Erwin is 34. He lived with his spouse, Ms. Drummond, at their residence where the incident took place. [146] He

had little recollection of what happened during the day on September 27, 2020. He believed he had simply been lounging around the house; he had no recollection of going out on a boat. [147] He recalled Mr. Charlebois "popping in" around dinner time after he had been visiting a neighbour, Tyler Black, who lived about 100 metres away. He had no vivid memories of what exactly happened. He believed they were "catching up, conversing", but could not remember where on the property. He had only met Mr. Charlebois a few times prior. He could not remember whether they were drinking at this point. [148] Eventually, either Ms. Drummond or V.S. got home, he was not sure who arrived first, but he thought they arrived shortly after Mr. Charlebois, and if he had to guess, "they all arrived around dinner time . 5 or 6 if he had to guess." [149] Ms. Drummond knew V.S. from the Firehall; he did not know her. They had offered V.S. a room as a safe space to stay as she was having problems with her dad. He thought V.S. had been there for three or four months. [150] When "the girls got home" they all started socializing, conversing together. He could not recall anything particular about V.S. when she arrived other that she seemed to know who Mr. Charlebois was. They were chatting a lot - it was obvious that they knew each from the Westside. The tone was very friendly. He could not recall if they had

any food, but they quickly started making mixed drinks after "the girls got home." [151] He recalled that V.S. and Mr. Charlebois were "reminiscing'; she was showing him sympathy about a past relationship. It was a 'lighthearted organic conversation' nothing aggressive, 'good catch-up conversation', more on the intimate side of things. [152] He testified that Ms. Drummond was the first to go to bed. He thought if the "girls got home at 6" they were probably all out of there by 11 p.m. Once Ms. Drummond went to bed, the conversation continued and became more intimate between V.S. and Mr. Charlebois, who were now getting closer on the couch. He recalled coming back from the kitchen and seeing them kissing, intimately, very mutual and natural. It was "progressing naturally that way." He could not recall if they had their arms around each other but maybe they had an arm around each other. He did not see V.S. sitting on Mr. Charlebois's lap or playing with his hand. He described the kissing he observed as making out, lasting minutes. [153] The night did not go on much longer after he observed them kissing. V.S. went to bed first, leaving him and Mr. Charlebois to chat. Mr. Erwin had a vague recollection of going to bed. He could not remember exactly what he told Mr. Charlebois but it was along the lines of "he's got a couch or a bed", by which he meant Mr. Charlebois "could sleep on

the couch or try [his] chances in there, get a cuddle", in V.S.'s bedroom. He testified that he did not have a clear memory of the whole night, but his recollection of walking one way and seeing Mr. Charlebois knocking on her bedroom door, was as clear as it would get. [154] Mr. Erwin testified that during the night he vaguely recalled hearing through the shared wall, 'moaning and sounds pleasurable enjoyment going on', which sounded very feminine. He inferred it was coming from V.S. It was probably around 11:15, and he recalled saying to Ms. Drummond "sounds like they're having a good time." [155] In the morning, Tyler Black showed up at 7 or 8 in the morning. He recalled V.S and Mr. Charlebois getting up and there being nothing out of the ordinary in the morning, except his perception of "subtle tones of embarrassment", by both parties. After about an hour, Mr. Charlebois walked her out to her car and said goodbye. He could not remember any of the conversation. He testified that as "regretful as it may have been, sure, but aggressive, assaulting not at all." He had no other memories of that morning. [156] Mr. Erwin did not see any injuries on V.S. in the morning or in the weeks following and she did not mention anything. He could not comment on Mr. Charlebois or V.S.'s sobriety level. He described himself as intoxicated but not paralytic or falling over. [157] Mr. Erwin

testified in cross-examination that he did not have a memory of V.S. going to bed, he was just assuming that she did. He could not recall V.S. leading Mr. Charlebois to the bedroom. His last memory was of Mr. Charlebois and him going to bed and V.S. was not there. He agreed that it was his idea to suggest that Mr. Charlebois knock on the bedroom door, and that he might "get a cuddle in there." [158] Mr. Erwin agreed that he told the police in June 2024 that he did not remember very much; "details and dates and things like that were fairly vague at times." He "perhaps" told the police that there "may have been some kissing"; he was not sure if he told the police about them making out on the couch. He acknowledged that he did not remember much from that date. For example, he was not sure if the boat trip was the same day or another day before or after. During cross-examination he was not sure of the year in which the incident he was testifying about occurred. [159] He testified he first met Mr. Charlebois in 2018 or 2019 and probably had "hung out" with him only two or three times before the incident. He considered him an acquaintance then, but a friend now. [160] He agreed that in the last year he had talked to Ms. Drummond about that night, but not in too much depth. He acknowledged that he had not thought about this night until 2024 when he was contacted by the police; he did not think there would be a police call. He denied fabricating his evidence and although he considers Mr. Charlebois a friend, they have not spoken since the allegations were made.

ANALYSIS [161] I must not assess the evidence of any witness in the abstract; I am to consider the evidence of each witness in the context of the evidence as a whole. The cogency of evidence from one witness is a permissible basis upon which to reject other evidence. [162] In assessing all the evidence, it is important to note that Mr. Charlebois does not deny that he had sexual intercourse with V.S. The issue for me to decide is whether the Crown has proven beyond a reasonable doubt that V.S. did not subjectively consent to any sexual touching. [163] Mr. Charlebois testified that after Ms. Drummond had gone to bed, V.S., Mr. Erwin and he continued drinking for an amount of time after that. Ms. Drummond confirms that she was the first to go to bed. V.S. testified that she went to bed at the same time as Ms. Drummond. I find as a fact that V.S. stayed up quite a bit longer continuing to drink. [164] Mr. Charlebois testified that he "made out" with V.S. on the couch. V.S. testified that she could not remember making out with Mr. Charlebois but acknowledged that it was possible. Although I am concerned about the reliability of Mr. Erwin's recollection, considering that he acknowledged telling the police that he "may have" seen only some kissing, I accept that Mr. Erwin's evidence corroborates Mr. Charlebois and that he and V.S. were in fact kissing on the couch. [165] I ruled

after a voir dire that any "making out" evidence was admissible for the limited purpose of assessing the credibility of V.S.'s evidence. [166] I am satisfied based on all the evidence that V.S. was highly intoxicated and that this undoubtedly has impacted her recollection of events. I accept her evidence that she has no specific recollection of kissing or "making out" with Mr. Charlebois. Her concession that it is possible she was "making out" with Mr. Charlebois means that the use of this evidence to undermine V.S.'s credibility, either about the kissing, or overall, is very limited. However, her failure to recall something which I accept did take place, does raise concerns about her recollection of events and therefore the reliability of her evidence. [167] Mr. Charlebois testified that his "next memory" after making out with V.S., was the two of them going down the hallway to her bedroom. His evidence about how this unfolded was vague. He did not know whether she came out specifically to get him or whether she was going to the bathroom. He also had no memory of V.S. going to her bedroom earlier in the evening, stating in cross-examination "I cannot confirm nor deny that. I don't know what she was doing throughout the evening at points." [168] The vagueness of this recollection contrasts with some surprisingly detailed parts of his evidence, for example that he was doing yard

work in the morning that day cleaning mess from the willow tree. That said, I accept and am mindful of defence counsel's admonition that there is no benchmark for an 'appropriate' level of detail in a witness's recollection from which to make assessments of credibility or reliability. [169] Mr. Charlebois's evidence of how he ended up in V.S.'s bedroom differs markedly from V.S.'s evidence and significantly from what Mr. Erwin was able to recall. [170] At 1:43 a.m., eleven minutes after sending a video message to her friend, Maisa, from the bathroom while she was urinating, V.S. sent one final video message to Maisa. Of course, the words uttered in this video are hearsay. I have not heard any submissions from counsel about whether what V.S. said is admissible for the truth, or whether the only use I can make of this evidence is to assess V.S.'s state of mind, level of consciousness or degree of intoxication at the time the video was sent. [171] Having reviewed all the evidence, I am satisfied that I can use what V.S. says in the video message for its truth for the following reasons. During the video, V.S. tells Maisa "I'm so fucking drunk" and she "is literally the drunkest I have been in a long time." It is quite apparent from reviewing the video that V.S. is very intoxicated. I accept that this is an indication that her statements to Maisa are reliable. In addition, and most

importantly, I am satisfied that during cross-examination V.S. effectively adopted as being true what she told Maisa in the video. [172] It is also questionable whether what V.S. said in the video is in fact hearsay. Statements of a mental or an emotional state, including statements of intention, are admissible as an exception to the hearsay rule where the statement is relevant, made in a natural manner and not under circumstances that are suspicious: R. v. Griffin, 2009 SCC 28, at para.

59. I have no reason to be suspicious about the statements made in this video message. It was not suggested to V.S. that what she said to Maisa was untrue, or that she was 'faking' her tired or intoxicated appearance. It is also important to note that this video message was made before any of the acts with the accused occurred. In other words, there can be no suggestion the video message was made to respond to something that had already occurred. [173] In addition, a complainant's statements to others about her emotional state may be admitted as circumstantial evidence, particularly in sexual assault cases where the complainant's consent is in issue: R. v. J.S.S., 2016 BCCA 411, at para. 47. [174] It is very important that I not use these prior consistent statements to bolster the credibility of V.S.'s testimony: Repetition in court of what V.S. told her friend, or repetition in court of the same state of mind displayed in the video to her friend, does not make the in-court testimony of V.S. more credible. [175] V.S. testified that she sent this video moments before she passed out. Based on the condition of V.S. that I observed in the video I am satisfied that this is true. Mr. Charlebois suggests that within a short period of time after sending this video, V.S. got out of bed to get food, water or go to the bathroom, and then took Mr. Charlebois into her bedroom. V.S. denied

each of these suggestions in her testimony. I note also that she had already used the bathroom eleven minutes before she sent the 1:43 a.m. video. [176] I accept V.S.'s denials that she got out of bed after sending this video as being true. Given her condition, apparent in the video, it defies common sense that moments later she would get out of bed and escort Mr. Charlebois to her room. My reliance on common sense to assess this video, and thereby the credibility of V.S.'s evidence, is consistent with the process of testimonial assessment described by Justice Martin in Kruk. [177] While I accept that inferences inconsistent with guilt do not have to arise from proven facts, they must nonetheless be reasonable. It would be entirely speculative to conclude that V.S. did in fact get out of bed after this video, located Mr. Charlebois in the living room and walked with him to her bedroom. [178] Most importantly, V.S.'s state of mind was that she was relieved she had not gone to bed with Mr. Charlebois. While I accept that intoxication may cause people to act in ways they otherwise may not when sober, and intoxication may cause people to act impulsively, it is noteworthy that V.S.'s expression of relief that she had not gone to bed with Mr. Charlebois was also made while she was intoxicated. It is not reasonable to infer that moments after expressing her relief that she had gone to

bed without Mr. Charlebois, in a state of waning consciousness, she would have got out of bed and brought Mr. Charlebois into her bedroom. [179] In addition, I have considered the evidence of Mr. Erwin that V.S. went to bed before Mr. Charlebois or himself. His recollection was that just before he went to his bedroom, he said words to Mr. Charlebois to the effect of you can either sleep on the couch or try to get a "cuddle" in V.S.'s bedroom. Mr. Erwin recalled going towards his room and seeing Mr. Charlebois knock on V.S.'s bedroom door. I note that the 1:43 video sent by V.S. confirms that Mr. Charlebois and Mr. Erwin were alone in the living area of the house. [180] I accept that generally Mr. Erwin's recollection of that evening and the next morning was not good. I have significant concerns about the reliability of his evidence, and to some extent his credibility. For example, I do not believe his evidence that he heard 'feminine moans of pleasure' coming from V.S.'s bedroom. I believe based on all the evidence, including that Mr. Charlebois, Ms. Drummond or V.S. were not asked about this, that this portion of Mr. Erwin's evidence was contrived, either to assist Mr. Charlebois, or to distance himself from the possibility that a young woman who was renting a room from his partner, Ms. Drummond, was sexually assaulted in their home. However, Mr. Erwin's recollection of being

alone in the living area with Mr. Charlebois is corroborated by the 1:43 a.m. video. In addition, Mr. Erwin described his memory of walking away and seeing Mr. Charlebois at V.S.'s bedroom door as clear. [181] By contrast, Mr. Charlebois's recollection of how he got into V.S.'s bedroom is problematic. For example, he said he could "only remember us going to the room together". He did not know how that happened. By comparison, when he was asked whether he had a belief that V.S. wanted to have sex with him, he said yes, in part because V.S. had "led" him to her bedroom. This internal inconsistency, considered in the context of all the evidence, leads me to conclude that Mr. Charlebois evidence on this issue is not credible. He has turned what is essentially a very vague recollection of going into her bedroom into something that is completely self-serving on the critical issue of consent, that V.S. "led" him into her bedroom. [182] There are other reasons why I have significant concerns about the reliability and credibility of Mr. Charlebois's evidence. Mr. Charlebois testified that he could recall what he was wearing that evening, jeans and a tee shirt that he brought with him on the boat. He recalled V.S. removing his shirt. He was asked how she removed it, and he responded, "from the bottom up I suppose." Instead of responding that he could not recall, he was essentially

guessing. He then relied on this guess to testify that he removed V.S.'s shirt "quite similarly." Given the overall state of his recollection, it defies belief that he could now recall how his shirt or V.S.'s shirt was removed. [183] I also note from the video message V.S. sent to Maisa at 1:43 a.m., that V.S. does not appear to be wearing a shirt. In other words, if, as Mr. Charlebois conceded, the sexual activity occurred after this video was sent, V.S. must have put a shirt back on. Given her state of intoxication, and overall level of tiredness, this seems highly unlikely. [184] Repeatedly throughout his testimony Mr. Charlebois described V.S.'s behaviour as 'reciprocal'. For example, when asked if V.S. was extremely intoxicated he said "that's subjective. I mean she was intoxicated, but she was coherent and reciprocal of everything that we were engaging in." He was asked whether her level of alertness in the bedroom was the same as displayed in the video she sent at 1:43 a.m., he responded, "no she was very coherent and reciprocal with everything." When it was suggested to him in cross-examination that V.S. had woken up to find him engaging in sex with her, he responded, "I disagree with that, as we've previously stated she was conscious and reciprocal of all action that occurred, all of which has been previously document." And when it was suggested to him that he had not

thought about the night with V.S. again until the police showed up in 2024, he responded in part, "she was reciprocal, and we both engaged the night together...". [185] Mr. Charlebois continually referring to V.S. as acting "reciprocal" struck me as entirely contrived. He was not testifying about what he was able to recall happening, but rather Mr. Charlebois went out of his way to characterize V.S.'s behaviour in a way that was entirely self-serving. He continually used the word "reciprocal" to attempt to convince the Court that V.S. was consenting. [186] V.S. testified that she passed out shortly after sending the video to Maisa at 1:43 a.m. and that she did not leave her bedroom to find Mr. Charlebois and bring him into her bedroom. I accept V.S.'s evidence that she did indeed 'pass out' shortly after sending the video. Her description of passing out is consistent with her physical state in the video: her voice is slow; her words are slurred and her eyelids heavy and only partially opened. [187] Accepting V.S.'s evidence that she passed out shortly after sending the video, is another reason why I do not accept Mr. Charlebois's evidence that he went into the bedroom accompanied by V.S. This does not mean I am simply 'choosing' the complainants evidence over the accused's evidence. But rather having assessed the evidence of V.S. and Mr. Charlebois, vigilant of the need to

remain mindful of all the evidence in that assessment, I have accepted the evidence of the complainant on critical issues. Acceptance of V.S. evidence for the reasons articulated, provides one explanation for why I have not accepted the evidence of Mr. Charlebois, and for why his evidence does not raise a reasonable doubt: See P.A. at para. 36. [188] Based on all the evidence, particularly the evidence of the video message to Maisa at 1:43 a.m. and the evidence of Mr. Erwin that V.S. went to bed before either Mr. Charlebois or himself, I am satisfied that V.S. went to bed alone, passed out and did not take Mr. Charlebois to her bedroom. [189] Having rejected Mr. Charlebois's evidence about how he went into the bedroom, and accepted V.S.'s evidence that she passed out shortly after sending the video, means that I also reject Mr. Charlebois's evidence that when he got into V.S.'s bedroom they undressed each other and that V.S. pulled him "backways" onto the bed. It is not a reasonable inference that within a short period of time of her recording this video, V.S. was, as described by Mr. Charlebois, coherent, reciprocal, leading him to her room, removing his clothes, her motor skills being entirely intact. [190] Again, I am not 'choosing' one version over the other. But rather having considered all the evidence, I accept V.S.'s evidence that she passed out within moments of

sending the video at 01:43. The acceptance of this evidence is a logical reason for why I have rejected Mr. Charlebois's evidence of being led by V.S. into her bedroom, removing each other's clothes, and engaging in consensual sexual intercourse. The rejection of Mr. Charlebois's evidence, and the conclusion that his evidence does not raise a reasonable doubt, arises from the process of reasoning, not from the exercise of making a choice over who or what to believe. [191] V.S. testified that she woke up naked to find Mr. Charlebois on top of her with his penis inside of her vagina. She readily conceded that she could only remember "bits and pieces from the sexual encounter." However, she was clear that she woke up to find Mr. Charlebois sexually assaulting her. I accept V.S.'s evidence that she awoke to find Mr. Charlebois on top of her with his penis in her vagina. [192] V.S. emphatically denied that she was interested in having sex with Mr. Charlebois. Her statement to Maisa at 1:43 a.m. "that I went to bed without Dalton, thank fuck" is, I find, highly probative of her actual state of mind at the time. There is no evidence that leads me to be suspicious about this statement. Although, V.S. and Mr. Charlebois may have been kissing on the couch, this evidence cannot be used to infer that it is more likely that V.S. would engage in any other sexual activity with Mr. Charlebois

later in the evening. [193] I am satisfied that V.S.'s relief that she went to bed without Mr. Charlebois was genuine. She acknowledged when she messaged Maisa at 1:32 a.m. and told her that Mr. Charlebois is "here and he wants to fuck me", that she was uncertain at that time whether she was going to have sex with Mr. Charlebois. However, I am satisfied that by 1:43 a.m., moments before she passed out, V.S. was relieved to be in bed alone. [194] I reiterate that I am relying on the 1:43 video message as circumstantial evidence of V.S.'s actual state of mind at the time. I am not using it as a prior consistent statement to support V.S.'s credibility. [195] Counsel for Mr. Charlebois argues that I should not rely upon V.S.'s evidence for several reasons. Firstly, V.S. testified that she had a clear memory of going to bed wearing a hoodie, but it is clear from her video to Maisa that she is not wearing a hoodie in bed. While I am concerned that her "clear memory" was proven to be incorrect, I consider this the very type of minor detail that is understandably unreliable due to alcohol consumption and the passage of time. As explained earlier, what is most important about the evidence in the video message is that V.S. is in bed alone expressing clearly to her friend that she is relieved she did not go to bed with Mr. Charlebois. [196] Similarly, I accept that V.S.'s evidence that

she went to bed at the same time as Ms. Drummond is incorrect. However, again what is important is that V.S. was clearly in bed alone at 1:43 a.m. while Mr. Charlebois and Mr. Erwin were continuing to talk in the living area. Although, V.S. was unreliable about when she went to bed relative to Ms. Drummond, I do not find this undermines either the reliability or the credibility of her evidence that she went to bed alone, did not get up again, and did not bring Mr. Charlebois to her bedroom. [197] Secondly, V.S.'s evidence about whether she ever thought about going to the doctor or hospital the next day, and whether she was aware about the option to have a sexual assault examination done, was internally inconsistent. For example, she initially testified that the thought of being examined even by her family doctor "repulsed" her, but later said the thought of going to the doctor or hospital "did not cross my mind." [198] Internal consistency is one hallmark of credible and reliable evidence. That said, V.S. was being asked questions about what she had or had not thought about doing the morning and days after she was, as she described it, sexually assaulted, more than five years ago. I am satisfied that she was not attempting to mislead the court but rather was trying to recall what her thought processes may have been more than five years ago. Of course, I can draw no inference

from the fact she did not go to her doctor, or the hospital or report the incident to police. [199] While it is a concern that her evidence was not consistent, I am satisfied that this has little to no impact on the credibility or the reliability of her evidence generally. [200] Thirdly, during cross-examination various portions of her statement to the police were read to her, where she acknowledged for example that she did not really know what had happened, where she was concerned she was going crazy, questioning whether the event happened, or wondering whether it was all her fault. I have carefully reviewed these portions of V.S.'s evidence, including her explanations for why she said these things to the police. I am satisfied that none of this evidence in any way undermines the credibility or reliability of her evidence that she awoke to find Mr. Charlebois sexually assaulting her. I am satisfied that the comments V.S. made to the police are entirely consistent with the types of thoughts people experience after a traumatic event. [201] Fourthly, V.S. initially testified that Mr. Charlebois's legs were on the outside of her legs when he was having sex with her, before later clarifying that she did not specifically take note of where his legs were, but that their legs were in the position "that would allow him to insert his penis inside of my vagina while I was sleeping."

Unquestionably, V.S.'s initial description of their respective positions would have made it difficult for him to penetrate her. However, it is equally unlikely that in awaking to find Mr. Charlebois on top of her, with his penis inside of her, still intoxicated, she would have comprehended exactly where his legs were. I do not find her evidence to be inconsistent or that her description of the sexual encounter was implausible. [202] V.S. also testified that she took pictures of some bruising on and around her collar bones, that she attributed to Mr. Charlebois holding her down, but that she deleted those pictures at some point prior to going to the police, because she had no intention of "dealing with this encounter" and she did not want to keep seeing the pictures on her phone. I accept that V.S. took some pictures. And I accept her explanation for deleting them. [203] The accused also argues that V.S.'s evidence that she had no sexual interest in Mr. Charlebois is not credible. However, the fact that V.S. was, as I have found, kissing Mr. Charlebois earlier in the evening is not inconsistent with her having no sexual interest more broadly in Mr. Charlebois. I do not accept the proposition that "making out" with Mr. Charlebois contradicts her assertion that she was not sexually interested in him or physically attracted to him. [204] The complainant readily conceded that

recalling details of that evening were difficult. For example, she readily conceded that she could only recall "bits and pieces from the sexual encounter." However, I am satisfied that she did not attempt to fill gaps in her memory by exaggerating or speculating about what she could in fact remember. [205] I have also considered the evidence of what occurred in the morning in my assessment of the evidence of Mr. Charlebois and V.S. While I accept the recollections of Ms. Drummond, Mr. Erwin, and Mr. Charlebois, that the mood in the morning was lighthearted, and that there were "no bad vibes" or "tension", any conclusions to be drawn from this are tempered by the fact that V.S. was still significantly intoxicated in the morning, in the company of people she did not know well, and was still very much processing what happened the night before. [206] Furthermore, and perhaps most importantly, in considering this 'morning after' evidence, I am mindful of the fact that there is no inviolable rule of how a person who has been sexually assaulted will behave. [207] While others may very well have been joking about Mr. Charlebois and V.S. "hooking up" the night before, they obviously did not know what had happened in the bedroom. In addition, unquestionably, Ms. Drummond's and Mr. Erwin's belief about what happened was influenced by Mr. Charlebois's joke about the birth control alarm, as

well as any flirting and kissing they observed the night before. [208] Moreover, it was Mr. Erwin who to some extent encouraged Mr. Charlebois to go into V.S.'s bedroom. He is therefore very unlikely to have been willing to assume or infer that non-consensual sexual behaviour had occurred the night before. His recollection that everything in the morning seemed normal was undoubtedly influenced by his own belief that encouraging Mr. Charlebois to go into V.S.'s bedroom to see if he could get a "cuddle" was appropriate. [209] I am not satisfied that the evidence of what happened in the morning in any way changes my assessment of the evidence of V.S or Mr. Charlebois about what occurred in the bedroom.

CONCLUSION Actus Reus [210] V.S. readily conceded that she could only recall "bits and pieces" from the sexual encounter. However, her recollection of awaking to find Mr. Charlebois on top of her, his penis inside her vagina, thrusting, was clear. [211] Overall, I find the evidence of V.S. that she awoke to Mr. Charlebois having vaginal sexual intercourse with her to be credible and reliable. [212] V.S.'s evidence that she did not subjectively consent to having sex with Mr. Charlebois is credible and reliable. Her contemporaneous statement to her friend that she went to bed without Mr. Charlebois, "thank fuck", is compelling evidence of her state of mind in that moment. Given her level of intoxication and tiredness, any suggestion that her state of mind changed markedly momentarily defies belief and is entirely speculative. [213] It is especially noteworthy that a very significant reason why Mr. Charlebois argues that V.S.'s evidence that she did not consent should not be believed, is that she took him into her bedroom, undressed him, and initiated sexual activity. As set out above, I have concluded that Mr. Charlebois's evidence of how he came to be in V.S.'s bedroom, with each of them removing the other's clothes, to be not credible. His evidence is inconsistent with the other evidence that I do accept: V.S. went to bed alone; Mr. Erwin's evidence corroborates that V.S. went

to bed alone; and shortly after sending a video message to her friend at 1:43 a.m. V.S. passed out. Any suggestion that V.S. got up again and led Mr. Charlebois to her bedroom is entirely speculative and inconsistent with V.S.'s demeanour, as readily apparent in the video message. [214] My concerns with Mr. Charlebois's evidence noted above, joined with my acceptance of the complainant's evidence, specifically her evidence about waking up to find Mr. Charlebois having sexual intercourse with her, lead me to conclude that I do not believe the exculpatory portions of the accused's evidence and nor do they raise a reasonable doubt. [215] Based on all the evidence I do accept, I am sure that Mr. Charlebois touched V.S. in a sexual way and that V.S. did not, and, given that she was asleep, could not, subjectively consent. The actus reus of sexual assault is proven beyond a reasonable doubt. Mens Rea [216] As previously set out, I do not believe the exculpatory portions of the accused's evidence and nor do they raise a reasonable doubt. Based on the evidence I do accept, I conclude that Mr. Charlebois went into V.S.'s bedroom and commenced having vaginal intercourse with V.S. while she was asleep. As she came in and out of consciousness, Mr. Charlebois continued to attempt sexual intercourse with V.S., before he succumbed to his own intoxication and fell asleep. [217] Mr. Charlebois

obviously intended to touch V.S. In addition, I am satisfied beyond a reasonable doubt that when he touched V.S. he knew she was not consenting because he knew she was asleep. It is especially noteworthy, that Mr. Charlebois himself testified that he could recall nothing about V.S. expressing her consent orally but rather her behaviour, much of which I have found did not in fact occur, implied her consent. [218] The accused did not argue that there was an air or reality to the defence of honest but mistaken belief in communicated consent. Having considered all the evidence, I agree. There is no evidence the accused took any steps to ascertain consent. The focus of the inquiry must be on the steps actually taken by the accused to ascertain the complainant's consent as opposed to the accused's pre-existing beliefs about what constitutes consent. Much of what the accused testified about his belief that V.S. was consenting, for example the 'making out' on the couch, could not be a basis for an honest but mistaken belief in communicated consent. [219] I am therefore satisfied that there is no air of reality to a mistake of fact defence. [220] Having considered all the evidence, I am satisfied beyond a reasonable doubt, that the only reasonable inference is that the accused had the requisite mental state and therefore the mens rea has been proven beyond a reasonable doubt. [221] Mr. Charlebois, Please Stand. In respect of Count 1, I find you guilty. "The Honourable Justice Fowler"