FILE PHOTO.

(BEN BULMER / iNFOnews.ca)

A B.C. judge has acquitted a Vernon man charged with sexually assaulting a 17-year-old girl after concluding that the man had an honest but mistaken belief in communicated consent and it couldn't be proved that the girl was too drunk to know what was going on.

B.C. Provincial Court Judge Jeremy Guild said his verdict didn't mean that either the victim or the accused were lying, but that there was not enough reliable evidence to prove the man was guilty.

According to a June 24 B.C. Provincial Court decision, the events all took place at a small party at the accused's apartment in Vernon in December 2018.

The 17-year-old girl, referred to as N.L. in the court document, had been drinking heavily and passed out sometime during the evening. Her then-boyfriend carried her to the bedroom and put her on the bed fully clothed. He left the door open and turned the lights off.

Shortly afterwards he left the party to go and buy cigarettes.

When he got back to the party he found the 17-year-old naked in the bedroom "actively engaged in sexual activity" with the accused, referred to as M.S. in the document.

The boyfriend then attacked M.S. and ended up hitting him with a snow shovel and chased M.S., who was completely naked, down the street at 3:30 a.m.

The accused called the police to say he was being assaulted.

The following day the 17-year-old told her parents and went to the police.

M.S. was then charged with sexual assault.

Crown prosecutors argued N.L. was too intoxicated to consent, while M.S. said she was not incapacitated and he believed she communicated her consent.

The decision says N.F. has very limited recollection of the night, and has significant gaps in her memory, especially with respect to the incident.

"Her testimony was not internally or externally consistent. Her recollection was tainted by conversations with others, and she could not separate her recollection from what others had told her," Judge Guild said. "N.F. has virtually no recollection of what transpired from when she went into the bedroom until the memory of being on her knees in the middle of a sexual act."

The judge pointed out that N.F. was honest in court and had said she was not sure about many of the things that happened.

Her boyfriend was not as intoxicated but the judge still said his evidence still had significant reliability issues.

The boyfriend testified that he saw N.L. "actively engaged" in the sexual act and believed she was cheating on him.

He testified he did not see M.S. "forcing" his girlfriend into the sexual act.

The accused testified that he went into his bedroom and found N.F. in his bed, awake, with her eyes open and giggling.

"He asked if she wanted to make out. She agreed. He asked for consent to further sexual activity and got affirmative responses," the decision says.

When the boyfriend had walked into the bedroom, M.S. had said 'what did I do?' implying that he did not know that he was doing anything wrong.

The Crown argued N.F. did not have an operating mind and was incapable of consenting.

However, the Judge didn't agree.

An RCMP officer testified that he didn't think N.L. was overly intoxicated. The officer allowed N.L. to sit in the front of his car when he drove her home, which broke protocol as incredibly drunk passengers always sit in the back.

The judge also said N.L. got dressed by herself even though she had previously said she was wearing tight jeans and had to struggle to put them on and take them off and didn't think she would be able to take them off if she was drunk.

"I am sympathetic to N.F.’s predicament: she was intoxicated and her boyfriend left. She has limited recall of events, due to intoxication and, as she rightly pointed out, the three years that passed before she could testify about that evening," the judge said.

The Judge ruled the Crown failed to prove she was incapacitated such that she was incapable of consenting.

The Judge said that an alleged mistaken belief in consent is not a defence when an accused is reckless, willfully blind, or did not take reasonable steps to determine consent.

However, Judge Guild said Crown had failed to prove that M.S. did not take all reasonable steps to ascertain consent and he was acquitted.

Separately, the judge was critical of the RCMP for not charging the boyfriend for assaulting M.S.

A police officer had said they would have "done the same thing" and told the boyfriend he would not be charged.

"I cannot fathom how a decision could be made to not charge (the boyfriend). The assault and vigilante action were far from minor in nature and effect. The decision to not charge (the boyfriend) suggests police accepted that (his) actions were justified; which means they took on the role of prosecutor and judge," he said.

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