R v Percy (NSCA)
[February 12, 2020] Sexual Assault - Similar Fact Evidence - Reliability of Lack of Consent - 2020 NSCA 11 [Reasons by Duncan R. Beveridge J.A. with Farrar J.A. and Derrick J.A. concurring]
AUTHOR’S NOTE: This decision is extremely useful for two propositions. Although there is no mention of #metoo in this judgement, it is the functional repudiation of that movement's impact on the justice system. First, it is an excellent summary of the rules surrounding admission of similar fact evidence. It points to the importance of not admitting evidence of other sexual impropriety in sexual assault trials. Just because someone else says something happened to them, does not mean something happened in the particular case. Second, it provides a firm reminder that judges do not subscribe to #metoo. Just because a complainant subsequently says she or he did not consent does not end the job of the trier of fact to determine the reliability of that contention. This case provides some ammunition for defence counsel to remind courts to withstand the pressures of the political moods of the moment.
 In this case, a young university student came forward to the police. She described non-consensual sexual activities with the respondent that included choking. The police found a video that captured some of their sexual activities on the respondent’s phone.
 The police charged the respondent with sexual assault, attempt to choke the complainant to assist in his commission of the sexual assault, and surreptitiously video recording the complainant (also known as voyeurism).
 The respondent testified at trial. He denied the sexual activities were non-consensual; he did not choke the complainant and she was aware of the video recording.
 The trial judge, the Honourable Judge William B. Digby, did not believe some aspects of the respondent’s testimony. However, he found that he could not reject the respondent’s evidence about the consensual nature of the sexual activities and video recording. The trial judge was not satisfied beyond a reasonable doubt and acquitted the respondent on all counts.
 The Crown appeals. It claims the trial judge erred because he: did not admit similar fact evidence; misapprehended the complainant’s evidence; misapplied the doctrine of reasonable doubt; misdirected himself on the law of consent; engaged in speculation on consent; and, did not provide sufficient reasons.
 The respondent is Matthew Percy. He worked as a groundskeeper at St. Mary’s University in Halifax. Ms. C. was a student at the university. She and the respondent had met earlier in the year and were friendly. They would exchange pleasantries on campus and at the gym.
 On September 2, 2017, the two had a chance encounter in a university parking lot. When the respondent mentioned that he had missed his bus, Ms. C. volunteered to drive him home. During the drive, they both disclosed their respective, previously made plans to go downtown that night with friends. They agreed to rendezvous at a local pub, Durty Nelly’s. Contact information was exchanged to facilitate their meeting.
 The respondent, Ms. C. and Mr. Purdis went to the Dome. The respondent and Ms. C. split a beer. Ms. C. had earlier tentatively arranged to stay at Ms. N.’s apartment. Instead, she decided to leave with the respondent to take a cab home. They would split the cost of the cab as they lived fairly close to each other.
 Rather than continue on to her apartment, Ms. C. went to the respondent’s. She drank water. Music played. After that, the evidence sharply contrasted. Not only did it conflict as between the complainant and the respondent, but between the complainant’s direct and cross-examination and the video of the sexual activity.
The Complainant in Direct Examination
 She ended up under him and when she said no sex tonight, he choked her and said, oh yes we are having sex tonight. The sex was in the missionary position the whole time. She repeatedly said no to him, but the sex kept going. After it ended, she left his apartment to go home.
 She had a bruised neck the next day that she covered up with clothes. Her vagina was sore. She had said no to sex and would not have said yes to any video. She had not seen the video before she gave her police statement.
The Complainant in Cross-Examination
 Her memory was refreshed that the kissing continued in the bedroom. She was okay with that. She could not disagree that the oral sex happened on the respondent first. When the video was played, it revealed that the respondent asked her to take his pants off, which she did. The recording discloses her laughing at the time.
 She could not recall if she went down between his legs willingly—it could have been one or the other. During oral sex, the recording also reveals that the respondent asked the complainant to spit on his penis. She does so, and then appears to lick the head of his penis. She is asked if she likes his penis, to which she replies affirmatively “Uh-huh” and “Oh yeah” and “Uh-huh”.
 She then appeared to concede that the oral sex was consensual. Later, I will set out more details about the judge’s finding and the evidence on this issue.
 The video displays a fairly lengthy act of vaginal intercourse, not in the missionary position as testified to by the complainant, but with her on her knees and the respondent behind her.
 After intercourse ended, the complainant borrowed clothes from the respondent and took a cab to her apartment to grab some sleep before an early morning training commitment.
The Other Evidence
 Unbeknownst to Ms. C., the police were called to St. Mary’s on September 15, 2017 in response to a sexual assault complaint by a female student against the respondent. This complainant was known as Ms. T. The police immediately arrested the respondent on this complaint and seized his phone and personal belongings.
 The police found two videos on the respondent’s phone of sexual activities between the respondent and Ms. T. One showed apparently consensual oral sex by Ms. T.; the other, of sexual intercourse where Ms. T. appeared to be in a state of consciousness that made her capacity to consent questionable.
 That changed after the police arrested the respondent on November 29, 2017 with respect to the September 15 incident with Ms. T. The police charged him with sexual assault against Ms. T. and sexual voyeurism. The police released the respondent on December 4, 2017. A newspaper article published on December 5, 2017 disclosed some details of Ms. T.’s complaint.
 Ms. C. read the article. Later that day, she contacted Halifax Police. This led to the charges of sexual assault, choking and voyeurism now under appeal.
The Admissibility of Similar Fact Evidence
 However, to determine admissibility, the law requires a trial judge to balance the probative and prejudicial effect of the proffered evidence. For this reason, as Saunders J.A. set out in R. v. Taweel, 2015 NSCA 107, deference is owed on appeal to the trial judge’s balance assessment:
 It is settled law that a trial judge’s decision to admit similar fact evidence is owed considerable deference on appeal. Nonetheless, the ultimate decision to allow the introduction of such evidence obliges the judge to properly assess its relevance, its probative value, and its prejudicial effect, and then carefully balance that probative value against the prejudicial impact of the evidence, were it admitted. In Handy, Justice Binnie explained it this way:
153 A trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value. Nevertheless, a trial judge’s decision to admit similar fact evidence is entitled to substantial deference: B. (C.R.), supra, at p. 739; and Arp, supra, at para. 42. In this case, however, quite apart from the other frailties of the similar fact evidence previously discussed, the trial judge’s refusal to resolve the issue of collusion as a condition precedent to admissibility was an error of law. A new trial is required.[Emphasis in original]
 Watt J.A. put it similarly in R. v. Stubbs, 2013 ONCA 514 at ¶58:58 Fourth, when evidence of other discreditable conduct is excluded under the general rule, or admitted by exception, the standard applied on appellate review is deferential: Handy, at para. 153; R. v. B. (C.R.), 1990 CanLII 142 (SCC),  1 S.C.R. 717, at p. 733; and R. v. James (2006), 2006 CanLII 33664 (ON CA), 213 C.C.C. (3d) 235 (Ont. C.A.), at para. 33. Appellate courts will defer to the trial judge’s assessment of where the balance falls between probative value and prejudicial effect unless an appellant can demonstrate that the result of the analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence: Handy, at para. 153; James, at para. 33.[Emphasis in original]
 To understand the principles that underpin the admissibility of similar fact evidence it is necessary to be clear about what it is—it is bad character evidence. The common law has long held that evidence that shows an accused committed criminal or other discreditable acts outside the parameters of the indictment is presumptively inadmissible (see for example, R. v. Rowton (1865), 169 E.R. 1497 (C.C.A) at p. 1506).
 Evidence that an accused has committed discreditable similar acts in the past risks conviction not on the basis of the strength of the Crown’s evidence on the particular charge, but because of a demonstrated propensity to commit that type of offence or the accused simply deserves to be punished.
 In R. v. Handy, 2002 SCC 56, Binnie J., for the Court, explained:
39 It is, of course, common human experience that people generally act consistently with their known character. We make everyday judgments about the reliability or honesty of particular individuals based on what we know of their track record. If the jurors in this case had been the respondent’s inquisitive neighbours, instead of sitting in judgment in a court of law, they would undoubtedly have wanted to know everything about his character and related activities. His ex-wife’s anecdotal evidence would have been of great interest. Perhaps too great, as pointed out by Sopinka J. in B. (C.R.), supra, at p. 744:
The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.
40 The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.
 Typical of rules, there are exceptions. The principal one is where the accused puts his character in issue. Evidence of bad character may also be admitted where it is relevant to an issue at trial, such as motive, opportunity, means, knowledge or is incidental to a proper cross-examination of an accused (see: R. v. S.G.G., 1997 CanLII 311 (SCC),  2 S.C.R. 716 at paras. 63-64).
 The test is easy to state. The Crown must satisfy the trial judge on a balance of probabilities that the probative value of the evidence in relation to a particular issue outweighs its potential prejudice (para. 55).
 In the course of a discussion about the misconceptions and difficulties in application of the test, the following emerges:
- The underlying basis for similar fact evidence to have probative value is through propensity reasoning (paras. 59-63);
- Probative value can only be assessed once the issue is identified for which the evidence is proffered to advance or refute (paras. 69-75);
- Where the issue is the actus reus of the offence, the degree of similarity may be higher or lower than in an identification case (para. 78);
- The trial judge must examine the cogency and strength of the proposed evidence (paras. 82; 134);
- The potential for collusion may sap the probative value of the evidence and preclude admission (paras. 104-113);
- The judge must consider the potential for moral and reasoning prejudice should the evidence be admitted and its potential impact on trial fairness (paras. 137-146);
- Finally, if the prosecution has not demonstrated that the probative value of the evidence outweighs its prejudicial effect, it must be excluded.
Application to the Facts
 The similar fact evidence consisted essentially of the video of September 15, 2017 of sexual activity between the respondent and Ms. T....
 In these circumstances, it is patent there was no issue about identity, accidental touching or the sexual nature of it. The video taken by the respondent captured his participation in sexual activities with the complainant, Ms. C. The sole live issue was about whether the Crown could establish the lack of consent beyond a reasonable doubt.
 Ever since R. v. Ewanchuk, 1999 CanLII 711 (SCC),  1 S.C.R. 330, there can be no doubt that the presence or absence of consent is determined by the complainant’s subjective internal state of mind towards the touching at the time it occurred (paras. 26-27). Hence, the actus reus of the offence of sexual assault depended on the credibility and reliability of her evidence. So too with respect to her allegation of choking and surreptitious recording.
 At the heart of the probative value is the improbability of coincidence between the similar acts and the acts at issue in the proceeding such that it would be an affront to common sense that the similarities were due to coincidence (Bent at para. 37; Handy at para. 41). This engages four inquiries:
39 First, the evidence must relate to a specific issue, so that it is plainly not adduced merely to show that the defendant is of bad character. Evidence adduced merely to show that the defendant is a bad person who is likely to engage in criminal acts is inadmissible propensity evidence. As Binnie J. noted at para. 71 of Handy, the general disposition of the accused does not qualify as “an issue in question”.
40 In assessing the probative value of the evidence, the court must identify the issue in question and ask how the similar acts tend to prove that issue. In Handy, Binnie J. noted that in cases such as this, where the issue is actus reus rather than identification, the degree of similarity required is not necessarily higher or lower, but rather the issue is different and the “drivers of cogency in relation to the desired inferences will therefore not be the same”: Handy at para. 78.
41 Second, the court must determine whether the similar fact evidence is tainted by collusion, which undermines the improbability of coincidence.
42 Third, the court should consider the similarities and differences between the evidence that forms the basis of the charge and the evidence of similar acts sought to be admitted. In considering the cogency of the similar fact evidence in relation to the inferences sought to be drawn, Binnie J. suggested, at paras. 82, 122, 128 and 132 of Handy, that the following factors may be examined:
• the proximity in time between past act and current offence: a greater lapse of time tends to undermine the premise of continuity of character or disposition; remoteness in time may also affect relevance and reliability;
• the extent to which the other acts are similar in detail to the charged conduct;
• the number of occurrences of the similar acts: an alleged pattern of conduct may gain strength if a greater number of instances compose it;
• the circumstances surrounding or relating to the similar acts: depending on the circumstances, these considerations could strengthen or weaken the probative value;
• any distinctive features unifying the incidents: greater distinctiveness would tend to increase the probative value;
• any intervening events: certain intervening events might undermine the probative value, such as evidence of supervening physical incapacity; and
• any other factor that would tend to support or rebut the underlying unity of the similar acts.43 Not all factors will exist or be necessary in every case.
44 Fourth, the court must consider the strength of the evidence that the similar acts occurred. . . .
 The trial judge’s reasons do not suggest he required the similar fact evidence to satisfy any of the commonly used labels found in identification cases that the evidence must amount to “signatures” or “hallmarks” or “fingerprints”. In Handy, Binnie J. referred to the power of similar fact evidence whether it is for identification or about the character of the act:
90 ....Similar fact evidence is sometimes said to demonstrate a “system” or “modus operandi”, but in essence the idea of “modus operandi” or “system” is simply the observed pattern of propensity operating in a closely defined and circumscribed context.
91 References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. ... [Emphasis added]
 However, even if the trial judge erred when he attached significance to the risk of prejudice from being unable to call evidence, the error was harmless.
 I say this because the trial judge had already found the similar fact evidence lacked strong probative value and the prejudice to the respondent was evident. The Crown at trial acknowledged the video of September 15 to be “highly prejudicial”. Furthermore, here the respondent did not have the opportunity to cross-examine Ms. T. He would be forced to defend himself on two cases and be cross-examined on the September 15 allegation even before his trial on those charges.
 I would therefore not give effect to this ground of appeal.
The Reliability of Lack of Consent
 The respondent testified. He gave detailed evidence about the events of September 3. For the most part, I need only touch on the generalities. He did not carry the complainant into the bedroom. They walked together. He requested permission to film their activities. The complainant consented, after reassurance it would not end up online. She willingly performed oral sex on him. Her head was free to move, he just held her hair. She saw the camera [the phone]. There was no force. The complainant never said nor showed any absence of consent, but the reverse. She asked about condoms. He never touched her neck. There was no act of choking.
The Legal Analysis
 Merely because a complainant says that they did not consent does not end the work of the trier of fact. That testimony needs to be assessed in light of the totality of the evidence. Major J., in Ewanchuk, made this clear:
 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.
 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. [Emphasis added]
 The trial judge did what he was supposed to do—assess the complainant’s credibility in light of the totality of the evidence. The judge disabused himself of any adverse inferences about consent based on a delayed report or alcohol consumption.
 The Crown bases its argument on the direction from the Supreme Court in R. v. Hutchinson, 2014 SCC 19 that the Criminal Code establishes a two-step approach to analyze consent to sexual activity. The first is to examine if the complainant voluntarily agreed to the sexual activity. If the complainant consented, or there is a reasonable doubt that they did, the second step is to consider whether the apparent consent was rendered inoperative by fraud, coercion or lack of capacity.
 The trial judge found he had a reasonable doubt whether she had not consented to the sexual activity. The case did not involve any issue of her capacity, although she had consumed alcohol, nor fraud or abuse of a position of trust. She testified she felt fear and the respondent choked her, a fact the respondent vehemently denied.
 The trial judge had a reasonable doubt about her state of mind that night:
I acknowledge that Ms. C. is of the belief that she was sexually assaulted. She doesn’t have to hold that belief to the same standard of proof beyond a reasonable doubt that I’m required to satisfy. And when I say she holds the belief, that is the belief that she has when she came to court to testify. It is her state of mind on the night of September 7th (sic) which is crucial, whether she did or did not consent. Given what I’ve indicated, the Crown has failed to prove, in my view, the standard beyond a reasonable doubt that she did not, in fact, consent.[Emphasis added]
 There may well be cases where a trial judge must examine the issue whether factual consent has been vitiated by any of the factors set out in s. 273.1(2) or s. 265(3) such as in R. v. C.B.K., 2015 NSCA 111. But here, the issue of voluntary agreement and the factors of fear or application of force and express words of disagreement were not just closely aligned, they were inseparable. A separate analysis would have been redundant.
 I see no reversible error.
[Appeal from acquittal was dismissed]
R v Hussein (SKPC)
[February 28, 2020] Update to March 1, 2020 Defence Toolkit - Charter s.8. - Reasonable Expectation of Privacy Reasons - Evolution of the Law since Edwards - 2020 SKPC 11 [F.M. Daunt, J]
AUTHOR’S NOTE: Herein Judge Daunt provides useful clarity on the evolution of the law of reasonable expectation of privacy since Edwards. While the SCC in Marakah, Reeves, etc provided a sea change in how this issue is to be considered, they failed to signal that those cases marked the end of an era. Here, Judge Daunt traces the development of the law in this area and highlights that interpretations of what is reasonable in terms of privacy expectations is now a normative exercise primarily. The question has become "should society expect privacy" in this area, not whether the particular accused's expectation was reasonable on the facts of the case. The interesting aspect of the facts of this case is how similar they were to Edwards where a reasonable expectation of privacy was not found. The development of the law has enhanced the public's reasonable expectation of privacy which demanded a different result here.
The Development of the Law
 Since Edwards was decided in 1996, the law has been evolving on this threshold issue, with the development of the concept of reduced expectation of privacy, which still affords section 8 protection. Recently, the majority judgment in R v Le, 2019 SCC 34 [Le] briefly discusses this issue, albeit in obiter. Le is a case of an invited guest in a fenced backyard. Although the Supreme Court decided the case on the section 9 issue of arbitrary detention, the majority had this to say on the section 8 threshold issue:
 First, at its core, s. 8 is concerned with the point at which “the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC),  2 S.C.R. 145, at pp. 159-60). The lens through which this analysis is conducted must always be normative and not categorical. That is, the analysis does not proceed with the assumption that a categorical factor, like control, will have a dominating impact on whether a person has a reasonable expectation of privacy. Rather, the inquiry is always driven by the question of whether a privacy claim ought to “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society” (R. v. Reeves, 2018 SCC 56, at para. 28). Second, it is possible for an individual to have a diminished or qualified reasonable expectation of privacy while still retaining the benefit of s. 8 protection (R. v. Cole, 2012 SCC 53,  3 S.C.R. 34, at paras. 8-9; see also R. v. Marakah, 2017 SCC 59,  2 S.C.R. 608, at para. 29, citing R. v. Tessling, 2004 SCC 67,  3 S.C.R. 432, at para. 22). Guests’ expectations may be qualified by the knowledge that their host could invite others in, including the state. However, it may still be objectively reasonable for a guest present on private property to expect that the state will not enter uninvited.
 We are of the view that a case can be made that invited guests can, in some circumstances, have reasonable expectations of privacy in their host’s property. The determination of when, and to what extent, these guests have a reasonable expectation of privacy will be fact and context specific. However, the analysis must always focus on s. 8’s fundamental concern with the public being left alone by the state, the normative approach to discerning the parameters of privacy rights, and the fact that s. 8 provides protection to those who have diminished or qualified reasonable expectations of privacy.
 Section 8 protects people, not places. Mr. Hussein was a person in a place when the police entered uninvited. It is difficult to fathom that Mr. Hussein might not expect privacy from state intrusion into that place while he was physically present. In this case, I find his expectation of privacy was reasonable. It was certainly reasonable for him to expect that agents of the state would not enter uninvited. He therefore has standing to challenge the validity of the search warrant. I base this finding on the following factors:
1. He was lawfully occupying a private residence.
2. The informant’s tip suggested he was, in effect, carrying on business in that location.
3. He opened the door to the police, therefore had the authority to permit or deny entry to someone who might come knocking.
4. He was eating in the apartment.
5. He was personally present in the apartment when the warrant was executed.
6. He was the target of the investigation.
7. He was detained and searched before the apartment was searched.
 If I am wrong on the standing issue, and Mr. Hussein did not have a reasonable expectation of privacy in Ms. Dorion’s apartment, then the cell phone was seized without violating Mr. Hussein’s section 8 rights. It is otherwise relevant, and so would be admitted into evidence. However, no one could argue that Mr. Hussein did not enjoy a reasonable expectation of privacy in his own pockets, which is where the rest of the evidence was found.
R v Webb (NSSC)
[February 19, 2020] – Sexual Assault - Evidence of Consent – 2020 NSSC 65 [Ann E. Smith J.]
AUTHOR’S NOTE: In sexual assault case law, the requirement for "communicated" consent has turned courtroom trials of sexual relations into a form of contractual interpretation. Did the complainant communicate consent is the question. This raises numerous factual difficulties because consent is actually an internal condition. A person can very firmly have one idea internally and communicate it poorly. In many cases, testimony of that internal condition at some point months or even years afterwards is found by triers of fact to be conclusive.
It is important for criminal courts to get it right and not risk criminalizing people's sexual relations for fear of public backlash or saying the politically incorrect thing. Justice Smith reminds us that sometimes just because a sexual partner says no once, does not mean she/he will not say yes, when asked again. Their "no" at first instance does not cancel subsequent communicated consent. Persistence in sexual entreaty is not a crime.
 Mr. Webb and CJ were students and acquaintances at Dalhousie University in the fall semester of 2017. It was the first year of university for both. They were in a study group with four or five other students for some of the classes they both attended.
 Mr. Webb attended CJ's dorm room at approximately 7:00 p.m. on the night of November 5, 2017 for the purposes of studying psychology with her. Mr. Webb had never been to CJ's dorm room alone before that night.
 Mr. Webb and CJ both testified. Mr. Webb and CJ agree that they did study together for about an hour and that thereafter they talked.
 Mr. Webb and CJ then engaged in sexual activity to which CJ consented.
 CJ says that she told Mr. Webb that she didn’t want to have sex because the last time she had sex was with someone who she wasn’t dating and she didn’t want to do that again. Mr. Webb agrees that she made this statement. Following the statement, Mr. Webb and CJ engaged in sexual activity, including his digital penetration of her vagina. She consented to that sexual activity. Mr. Webb then, according to his evidence, tried to penetrate her vagina with his penis, but could not do so. He says that CJ consented to this activity, or he had an honest belief that she communicated her consent based on her non-verbal conduct. CJ says that she did not consent to Mr. Webb putting his penis into her vagina. She says that his penis penetrated her vagina on one occasion.
 Mr. Webb says that after he tried to penetrate CJ’s vagina with his penis, CJ suggested that they “give it more time.” He says that CJ consented to further digital penetration followed by a second unsuccessful attempt on his part to penetrate her vagina with his penis. He says that CJ consented to this second attempt. Mr. Webb says that he asked CJ to get on her knees in front of him, which he says she did and at that point CJ made a comment about not wanting to engage in anal sex. Mr. Webb says that he was turned off by that comment and lost his erection. He says that thereafter CJ tried to kiss him, but he did not respond.
 CJ says that there was one instance where Mr. Webb actually penetrated her. She denies that he further tried to digitally penetrate her vagina and denies that he tried for a second time to have vaginal sex with her. She denies that he asked her to get on her knees and denies that she made a comment to him about not wanting to have anal sex.
Credibility of Witnesses
 The Nova Scotia Court of Appeal in D.D.S. v. R., 2006 NSCA 34 addressed the trial judge’s place and responsibility in assessing credibility. At paragraph 77 of the Court of Appeal’s decision, Saunders J.A. stated:
…Centuries of case law remind us that there is no formula with which to uncover deceit or rank credibility. There is no crucible for truth, as if pieces of evidence, a dash of procedure, and a measure or principle mixed together by seasoned judicial stirring will yield proof of veracity. Human nature, common sense and life’s experience are indispensable when assessing creditworthiness, but they cannot be the only guide posts. Demeanour too can be a factor taken into account by the trier of fact when testing the evidence, but standing alone it is hardly determinative. Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeated testing of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it, while applying appropriate standard of proof in a civil or criminal case?
 Saunders J.A. went on at paragraph 78 of the Court’s decision to refer to what he called the “lucid observations” of Justice O’Halloran in the “oft-cited” case of Faryna v. Chorny,  CanLII 252 (B.C.C.A.),  2 D.L.R. 254 at 356:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those conditions…
 Saunders J.A. in D.D.S. noted that, although the comments of Justice O’Harroran in Faryna v. Chorny were not expressed in the context of a criminal trial, “observations similar to Justice O’Halloran’s have often been emphasized in criminal cases, with suitable allowance for the different standard of proof.”
Evidence of the Complainant
 In her statement to the Dalhousie investigator, CJ approved the following part of the investigator’s statement, “Eventually he just stopped trying to have sex with her.” Regardless of CJ’s explanation for use of the words “try or trying”, the words, he “just stopped trying” seem inconsistent with CJ’s evidence that there was one occasion only where Mr. Webb actually sexually penetrated her.
 I have carefully considered these inconsistencies in CJ’s evidence. Of course, I also observed her demeanour while testifying and the manner in which she gave her evidence. I believe that CJ attempted to tell the truth and was generally credible. However, I am left with concerns, as a result of these inconsistencies, in her evidence with the reliability of her account of the sexual activity between her and Mr. Webb on November 5, 2017.
 While it is not important in terms of consent whether CJ in fact undid Mr. Webb’s belt buckle, I am concerned that on two occasions close in time to the events of November 5, 2017, CJ told a police officer that she undid Mr. Webb’s belt buckle and yet testified under oath at the preliminary inquiry in 2018, that she did not do so, suggesting, at first that her police statement where she said she undid the belt buckle, was a misprint. And further, she testified before this Court that she did undo the belt buckle.
 I am left, therefore, with these concerns and with CJ’s version of events which is very different than Mr. Webb’s account.
Actus Reus - Sexual Assault
 I have considered all of the evidence, including the fact that CJ was obviously upset when she called her girlfriend soon after Mr. Webb left her dorm. I have considered that she subjected herself to an intimate examination by the sexual assault nurse late at night a few days after her sexual encounter with Mr. Webb. I have considered that she reported the event to Dalhousie and to the police shortly after November 5, 2017. All of that evidence, however, does not assist the Court in determining whether, at the relevant moment in time, CJ subjectively consented to vaginal penetration, or attempted vaginal penetration.
 Nor does Mr. Webb’s mumbling, “I shouldn’t have done that” mean, as suggested by the Crown, that Mr. Webb was acknowledging lack of consent on CJ’s part. Mr. Webb’s evidence was that he felt he shouldn’t have engaged in any sexual activity with CJ given how soon it was after his breakup with his girlfriend and that he wanted to continue to be friends with CJ. Nor do Mr. Webb’s texts to CJ on November 11thacknowledge lack of consent on the part of CJ. Rather, he was saying he was sorry and never should have said what he said.
 I find that there is a reasonable doubt with respect to whether CJ subjectively lacked consent. As I said earlier in this decision, I generally found CJ to be a credible witness, but I also found Mr. Webb to be a credible witness.
 I had concerns about the reliability of CJ’s evidence as it related to the undoing of Mr. Webb’s belt buckle and her account to the Dalhousie University investigator about Mr. Webb trying to have sex with her and eventually giving up. The reliability of CJ’s evidence and her credibility with respect to her lack of consent is undermined when I consider this evidence.
 Because I have a reasonable doubt whether CJ subjectively consented to Mr. Webb putting his penis in her vagina, I find that the Crown has not proven this element of the actus reus beyond a reasonable doubt.
Mens Rea - Sexual Assault - Honest Mistaken Belief in Communicated Consent
 Major, J. in Ewanchuk outlined the kinds of behaviour which provide no defence to an accused because they constitute a mistake of law on his part:
 For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provide no defence: see R. v. M. (M.L.),  S.C.R. 3 (S.C.C.). Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below:One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. [Emphasis in original.]
I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct. [emphasis by this Court, Smith J]
 Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable…
 More recently, in R. v. Barton, 2019 SCC 33 (SCC), Moldaver J. (speaking for the majority) reviewed what can and cannot constitute “reasonable steps”: ...
107 That said, it is possible to identify certain things that clearly are not reasonable steps. 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).
 At this stage, I must be satisfied only that there is some evidence that CJ communicated her consent to engage in the sexual activity in question and that Mr. Webb believed she communicated that consent, based on the circumstances surrounding the events and the behaviour of the parties.
 Here I note that Mr. Webb is not saying that he believed CJ consented because she was silent, did not resist or otherwise object to what he was doing. Rather, he is saying that he believed that she actively, by her conduct, communicated her voluntary agreement to engage in the sexual activity in question.
 Mr. Webb’s honest, but mistaken, belief that CJ was consenting, cannot arise from his self-inducted intoxication (not a factor here) recklessness or wilful blindness or from him not taking reasonable steps, in the circumstances known to him at the time, to ascertain that CJ was communicating her consent.
 The first act where consent comes into play is Mr. Webb’s insertion of his penis (or attempt to do so) in CJ’s vagina. The determination of what constitutes reasonable steps is based upon the circumstances that present themselves to the accused and are known to him. There are a variety of circumstances which may be encountered in sexual activity. The circumstances of this Accused was that after an initial statement by CJ that she did not want to have vaginal sex with him (and why), consensual activity continued. CJ consented to digital penetration of her vagina with his fingers. She consented to kissing. It was in that context that Mr. Webb raised the condom to his face. It is to be remembered that it was the condom’s first appearance which triggered CJ’s comment that she didn’t want to have sex. It is not a crime for someone to raise the issue of having sex with someone again, after she initially said she did not want to, but the onus rests with him to ensure that the complainant has changed her mind before proceeding further.
 In that context, the condom reappears, according to Mr. Webb, by his face and for her to see. He says that she smiled and drew his body closer with kissing continuing until he took the condom out of the package and put it on his penis. I do not accept that Mr. Webb was required to verbalize something in order to ascertain CJ’s consent at that point. As noted by Major J. in Ewanchuk, “an unequivocal ‘yes’ may be given by either the spoken word or by conduct” (para 51). Of course, this is context specific.
 I reject Crown counsel’s argument that it was necessary for Mr. Webb to verbalize something prior to attempting to have vaginal sex with CJ given her previous statement that she did not want to have vaginal sex. It is to be remembered that after CJ voiced that she did not want to have sex, she and Mr. Webb had engaged in consensual digital penetration of her vagina with his fingers, with no prior verbal communication of any kind. Mr. Webb then, according to his evidence, held the condom up to his face, where she could clearly see it. The first appearance of the condom was the very thing which had triggered CJ’s statement that she didn’t want to have sex, but which they both understood, she meant vaginal sex.
 A lot had gone on, albeit in a short period of time, since CJ had said that she didn’t want to have vaginal sex. I accept that Mr. Webb was raising the question of sex again by putting the condom up to his face, raising his eyebrows and smiling, and that when CJ smiled back and drew his body closer to hers with her hands, in his mind, CJ was communicating her consent to him.
 I find that there is therefore a basis for the Accused’s belief that the Complainant was voluntarily agreeing to engage in vaginal sex with him on each occasion.
 I believe that in this context, Mr. Webb took reasonable steps to ascertain whether CJ was consenting to have sex with him and that he had an honest belief that she was doing so. He was not reckless or wilfully blind in his belief that CJ consented. The Crown has not established that was the case.
 In all the circumstances, I find that the Crown has not proven beyond a reasonable doubt that the Accused had the requisite mens rea to commit the sexual assault.
 The Crown also failed to prove the consent element of the actus reus for the reasons stated earlier in this decision.
 Mr. Webb is acquitted of the offence of sexual assault.