Even though the judge thinks he probably did it, a Whitehorse man has been found not guilty of rape after a two-day trial because of a lack of evidence.

"I find it much more likely than not that (the complainant) was sexually assaulted, but considering the state of the evidence, it is unsafe to convict,” Judge John Faulkner said Tuesday before acquitting Jeremy Cardinal of the charges against him.

Cardinal was arrested on July 21 after a 25-year-old Whitehorse woman called the RCMP to report she was choked into submission, then raped by a man matching Cardinal's description.

After the woman (who cannot be identified) pulled him out of a photo line-up, he was charged with sexual assault, forcible confinement and choking. Cardinal pleaded not guilty, and the case went to trial.

In court Tuesday, the woman said she met up with Cardinal across the street from the 98 Hotel on the night of July 20; he said they ran into each other outside of Flippers.

They had met a couple of years earlier, she told the court, but weren't friends. She said they talked briefly, then Cardinal asked if she knew where he could buy some marijuana. She said yes.

Cardinal denied asking her about buying drugs, insisting he doesn't touch them because of his job as a truck driver.

"I don't smoke pot. I get a drug test twice a year; if I fail, I lose my job,” he said in court. Crown prosecutor Jennifer Grandy pointed out he was and is unemployed.

Cardinal also said he'd had "a one-night stand” with the woman five years ago. His lawyer, however, told the judge to ignore that evidence because he had never brought it up before he took the stand, so the woman was never asked about their previous relationship.

Both said they got into a cab and drove to Cardinal's residence on Finch Crescent in Arkell. When they got to the house, the woman was tired and wanted to lie down, she told the court, and followed Cardinal's directions to a downstairs bedroom.

Cardinal said the woman started kissing him when they got out of the cab and asked: "Do you want me?”

The woman said she fell asleep for about an hour and woke up to find Cardinal in bed next to her.

"He started rubbing up against me, grabbing me, holding me,” she said in court. "I told him not to touch me and I took his arm off of me .... He continued to try to grab me and I said no.”

The next thing she said she remembers is Cardinal choking her with one hand, while pinning her hands above her head with the other.

She told the court that once he started choking her, she stopped resisting and obeyed when he told her to take off her pants. She let him have sex with her because she was afraid for her life, she said.

"I didn't want him to hurt me,” she told the court when asked why she didn't keep fighting him off.

When it was over, she said, she told Cardinal she had to use the washroom. She went upstairs with only her top on, leaving her shoes, pants and underwear in the bedroom.

In the bathroom, she said she put on a pair of pants she found in a laundry basket. She took a pair of shoes from the hallway and left the house.

Her account in court differed on a number of points from the details she gave to police.

When she gave her statement to the RCMP, she told the investigator that Cardinal had tried to tie her hands behind her back with "a scarf or something.”

On Tuesday, she told the judge there was never any scarf and she didn't know why she had mentioned one to police. She also told police Cardinal had ripped her pants off and punched her, but when challenged during her testimony, said neither of those things had happened.

Her notable behaviour on the stand was also cause for concern, said Cardinal's lawyer, Melissa Atkinson. The woman kept her collar turned up around her neck during her entire testimony.

"You currently have marks on your neck ... and that's why you're holding your shirt like that, right?” Atkinson asked.

The woman said yes, and showed the court the bruises on her neck.

Cardinal denied ever choking the woman. He said after they kissed for a while, they went straight to his bedroom and began to have sex.

He said he was sucking on her neck, leaving behind the bruises later photographed by police.

After about 10 minutes, he said, she stopped and said she had to go to the bathroom. As she was putting on her bra and top, she asked him to buy her a gram of crack, according to Cardinal.

"I started yelling and swearing at her,” he said. "I seen crack destroy my community, and I got no time for it .... I would never have gone anywhere with that girl if I'd known she was a crack head.”

She swore at him and left the room, he said.

He heard the woman go upstairs, flush the toilet, then heard the front door open and close and assumed she had left the house, he testified.

Brian Francis and William Aleekuk, Cardinal's housemate, were outside the house having a smoke when she left.

They told the court they saw the woman come around the corner of the house.

"She pointed to the house and she said she just got raped,” Francis told the court.

Aleekuk, who is legally blind but has some vision, told her to come in and use the phone, not realizing she was talking about his home.

"She just took off down the road,” Francis said.

The two men went inside, and Aleekuk said he asked Cardinal, "Did you have a girl here? She just said you raped her. You better go deal with it.”

Francis and Aleekuk said Cardinal became angry, called the two liars and flipped over a coffee table.

For his part, Cardinal admitted at yelling at the two men but didn't mention the coffee table.

As he reviewed the evidence before him, Faulkner pointed out problems and inconsistencies in both Cardinal's and the woman's accounts of the night.

Faulkner did not find Cardinal to be a convincing witness, he said, pointing out that in spite of having more than a dozen drinks on July 20, Cardinal claimed to remember everything that happened.

The judge also noted that Cardinal complained about the way he was treated by police, even though it had no bearing on his case.

Finally, Cardinal's explanation of why the woman would leave his room without her pants or underwear on "lacks the ring of truth,” Faulkner said.

Of the woman, he said: "If her evidence was concocted, it was concocted almost immediately,” as soon as she saw Cardinal's housemate.

There was no medical evidence to support the judge's opinion that the marks on the woman's throat were made by a choking hand, not a passionate mouth, so he could not use that evidence against Cardinal, the judge said.

Though he believed the woman's story more than he believed Cardinal's, Faulkner said, he could not convict the man based on the evidence put forward by the prosecutor.