A University of Guelph student has been found not guilty of sexual assaulting another student during a party at an on-campus residence in 2018.
The complaint was filed with police over a year later.
In a written decision delivered last month, Justice Gordon Lemon ruled the Crown did not prove beyond a reasonable doubt that the sexual activity was not consensual.
“There is no issue that the two engaged in sexual activity; the question is whether the Crown has proved beyond a reasonable doubt that [the complainant] did not consent to that activity and whether [the accused] did not have an honest but mistaken belief in her consent,” Lemon wrote in his decision.
The names of the individuals, including witnesses, were not included in the decision to protect privacy.
The pair met during on-campus Frosh Week activities in 2018. She was 18, he was 19. Both were in first year and living in separate residence buildings on campus.
They became friendly and exchanged social media accounts.
Later during Frosh week the woman and a group of friends attended a party at the man’s residence.
The woman claimed that on a scale of 1-10 of drunkenness she was a “9 out of 10” at that party. She said she was not interested in the accused in a sexual way.
She and witnesses confirmed at one point the woman, a former competitive gymnast, did a series of backflips down the hall. That would come into play later when the judge considered how inebriated the woman was.
She said the accused pursued her during the evening trying to be alone with her, but she was not interested.
Later in the evening the woman found herself in the accused’s dorm room, either to retrieve her phone that he had taken or to escape detection of residence assistants who were trying to break up the party. She wasn't sure.
It was then she testified the man forced himself on top of her and sexually assaulted her, even though she told him “no” and to “stop” several times.
“When he did not respond, she ‘gave up’ and remained ‘numb and scared,’” reads the court judgement.
The incident lasted three or four minutes.
Fifteen months later, in December of 2019, after being "triggered" by seeing the accused on campus and after discussing the situation with her then-boyfriend, the complainant went to campus police and filed a complaint.
The accused corroborated many of the details of what the complainant said, but denied the complainant was heavily intoxicated the night in question. He said she went to his room willingly, and that consensual sex took place.
“Throughout these events, he always believed that [the complainant] was consenting. He denied that [the complainant] said “no” or “stop”. Rather, both were enjoying what was going on,” the judge wrote.
The accused told friends about the encounter shortly after it happened, indicating it was consensual. He had also expressed that he hoped to have a relationship with the woman.
He didn’t know of any issues until police contacted him 15 months later.
Lemon called the evidence of the accused largely “compelling and logical.”
He said the evidence of the complainant was “harmed” by witness accounts that contradicted some of her evidence.
“Having watched [the accused] for two days, his responses, body language and tone of voice were all consistent with telling the truth. He was responsive to all questions put to him in cross-examination. He was not evasive in his answers. There was certainly nothing in his demeanour or manner of answering questions to suggest that I should reject his evidence.”
As for the complainant, Lemon said while she seemed credible, there were also questions about her reliability.
“From her evidence, I can accept that [the complainant] now believes that she said “no” and “stop”. I have no reason to reject that part of her evidence. However, on all of the evidence, I cannot find that evidence to be reliable,” Lemon said.
He also felt that the complainant’s gymnastic demonstration in the hallway went against her testimony that she was very intoxicated.
Given that he accepted the defendant’s evidence as credible, Lemon said he accepted that evidence that showed the sex was consensual.
“On that evidence, I find that [the accused’s] belief in [the complainant] communicated consent prior to having intercourse was honest and reasonable. His belief was not reckless or wilfully blind.”
