Crown: K. Kiric, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
[Note: actus reus means "the act"; mens rea means "the intent."]
¶ 1 THE COURT: Mr. M. is charged with having sexually assaulted [the complainant] sometime between the 14th day of February, 1995 and the 5th day of March in the same year. The Crown's case consisted of [the complainant]'s evidence and that of his spouse [Mr. M.'s sister]. The defence called Mr. M., who is the brother-in-law of the complainant and brother of the wife.
¶ 2 Dealing first with her evidence: her distaste for this process; her anger towards her husband; her distaste for everything about this process was palpable and she oozes all of that. I disregard her evidence in its entirety. If the defence were to fashion its evidence based solely on her word, I would disregard her as completely unreliable and uncredible.
¶ 3 [The complainant] was intoxicated. He admitted his intoxication. He alleges that he was unconscious at the time the sexual activity occurred that is complained of in the photographs, exhibits five through to seven A, including seven B.
¶ 4 Mr. M., on the other hand, testifies that he and [the complainant] were goofing around. There were elements of horseplay. They were both intoxicated. One thing led to another and the activity captured in the photographs taken by [the complainant's wife] were part of that horseplay that [the complainant] was consenting throughout and participating, and engaged in the activity on his own volition.
¶ 5 I must instruct myself in accordance with the Supreme Court of Canada decision with respect to R. v. W.(D.),  1 S.C.R. 742. There are difficulties associated to accepting [the complainant]'s evidence in its entirety. And those difficulties are further occasioned by the credibility of Mr. M. himself. His evidence, I am satisfied, does raise a reasonable doubt with respect to the issue of consent. Again, I specifically removed from consideration the evidence given by the wife, who I find to be a most unreliable and objectionable witness. The accused will be entitled to an acquittal.