Her Majesty the Queen - v. -, 2016 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 066 Date: May 17, 2016 Information: 24539016 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lavern Conrad Rivard Appearing: Mr. Daniel Forbes For the Crown Ms. Joelle Graham For the Accused JUDGMENT D. KOVATCH, J [1] The accused, Lavern Conrad Rivard is charged that on April 7, 2015 he committed an assault on Hailey Hatt contrary tosection 266 of the Criminal Code. The only two witnesses in the trial were the complainant, Hailey Hatt, and the accused.

The soleissue is whether, applying the principles enunciated in cases such as R v WD (1991), (SCC), 63 CCC (3d) 397 (SCC)and R v PNM (1995), 141 SASK R 221 (CA), the Crown has proved the charge against the accused beyond a reasonable doubt. THE EVIDENCE

[ 2 ] The complainant, Hailey Hatt, testified that her date of birth is June 11, 2006. On the date of this incident, she would have been eight years of age, and approaching her ninth birthday. At the time of trial, she would have been nine years old, and approaching her tenth birthday. [ 3 ] She testified that she lives at Pangman Saskatchewan, and was currently enrolled in grade 4 at the Pangman School. She said she has lots of friends. She remembered talking to police officers when she was eight years old. [ 4 ] Hailey said she told her side of the story.

She went to the store to get eggs and when she was on her way home, he asked if she wanted a ride home. She said no. He then got out of his truck and grabbed her by the arm. She said her house isn’t too far from the store. It takes a minute or two to walk there. She said that Conrad grabbed her by her left arm. Conrad is a neighbour that lives at the far end of her street. [ 5 ] Hailey said that she often sees Conrad. She would see him lots every week. She recognizes him. He has white hair. She couldn’t say how old he is. [ 6 ] It wasn’t a school day when he grabbed her by the arm. It would have been a Saturday.

It was in the afternoon. [ 7 ] Hailey said it was summer and it was quite sunny. Before this incident, she had been playing with her little sisters. Her dad asked her to go to the store to buy eggs to make cookies. They were going to make chocolate chip cookies. [ 8 ] She said she was walking home when Conrad pulled up beside her. He asked her if she wanted a ride home and she said no. Then he got out of his truck and grabbed her by the arm. [ 9 ] Hailey testified that later that same day she spoke to the police.

In Court, the audio recording of her first statement made to the police on April 7, 2015 was played for the court. In that statement, Hailey said: “He got mad at me cause I wouldn’t get into his car.” Further that he followed me home. “It was really creepy.” [ 10 ] She said that Conrad is her best friend’s uncle. On a number of occasions, she said he is really creepy. Further, that he creeps her out. She said that Conrad drives by her house, and as he does so he looks in her window, and this really creeps her out. [ 11 ] Lastly, in the audio statement, she said that Conrad got mad when she wouldn’t accept a ride.

His face was turning red. [ 12 ] On April 15, 2015, a more complete video taped statement was made. That statement was played for the court. She told the same story of Conrad asking her if she wanted a ride and her saying no thank you. At that time, he got out of his truck and grabbed her by the arm. She showed the officer how he grabbed her left arm with one hand. She said this left a bruise or mark on her arm, but it went away. [ 13 ] Hailey spoke of carrying the bag with eggs. She said that Conrad took the bag from her and put it on the ground.

She said that she grabbed it and ran home. [ 14 ] She stated that Conrad’s truck is very old. She described it in some detail and fairly accurately. [ 15 ] She seemed to say that she hadn’t seen Conrad before this incident. However, she then spoke of him driving around town and staring at them as he slowly drove by.

[ 16 ] Her mother then spoke of other people around town talking, and how everything came to light now. The video ended. Hailey indicated that she did not remember anything further. [ 17 ] Under cross-examination, Hailey again repeated that Conrad asked her for a ride and when she said no, he got out of his vehicle and grabbed her by the arm. She said she didn’t watch the video before court. She said she did listen to her statement a few days prior. Then she practiced what she would say by speaking to her teddy bears. She also said that Leanne “the police officer” and her mom asked her a few practice questions.

But she said they didn’t remind her about what had happened. [ 18 ] Hailey said that after the incident, she ran home and talked to her dad. Her dad then called her mom. Her dad left the house for a short while then came home, and they went to the police. [ 19 ] Answering Ms. Graham’s questions she said that on the day of this incident, she hadn’t seen Conrad for a long time. She indicated that when he was in the store, he had no trouble walking. There was nothing unusual about him. He had no oxygen or breathing equipment. She said his white hair stands out.

She indicated that her friend told her about her uncle Conrad, and what he looks like. The friend indicated he had white hair. [ 20 ] Ms. Graham had her slowly recount the events of the incident. She said that after leaving the Co-op, she walked on the sidewalk, then crossed the street, and was walking on the gravel road. She indicated that she carried the bag with the eggs in her left hand. She was walking on the right side of the road. [ 21 ] She testified that Conrad drove up beside her and rolled down his passenger window. He stopped and asked her whether she wanted a ride. She said she kept walking.

She said Conrad grabbed her arm and she didn’t like it. Further that he grabbed the bag and put it on the ground. She was trying to grab the bag with her other arm. Then she pulled her arm away. She said that she had one hand on the bag and had never let go of the bag. She said she was pulling on it with both hands. He let go or she was able to pull away from him. She indicated this incident wasn’t far from her house. It was less than a block away, perhaps five or six houses. [ 22 ] Hailey testified that her friend, Alysia spoke of her uncle Conrad.

Hailey said that Alysia never introduced her to him. [ 23 ] Hailey then indicated that Conrad drove by her a little bit and then rolled down his window and stopped the vehicle. [ 24 ] She was able to identify him as the accused. [ 25 ] The accused, Conrad Rivard, testified that he is 63 years of age. He lives in Pangman Saskatchewan. He testified that he didn’t recognize Hailey and has had no contact with her previously. Further that he had no interaction with her on April 7, 2015. He had no interaction with any other female person, and never grabbed any young person’s arm on that day. [ 26 ] In court, Mr.

Rivard looked to be a fairly old and a little bit fragile. He was limping. He testified that he has a problem with diabetes. On April 7, 2015, he was limping as he was in court. [ 27 ] He testified that he went to the Co-op two or three times. On the last occasion, he got soup. He took it home and was getting the soup going. At that time he heard a banging at his front door and someone hollering, “Conrad.” A male was at his door swearing at him and calling him a “pedophile.” [ 28 ] Mr. Rivard testified that he owns a 1990 GMC truck with a topper on it.

He said the windows have been converted from power windows back to crank windows. In order to turn down the passenger window he would have to remove the inside panel and manually turn down the window.

[ 29 ] He testified that he uses a cane sometimes. He doesn’t believe that he used his cane on that day. He testified that his balance is not very good because diabetes has caused nerve damage to his feet. He would find it difficult to bend over and grab a grocery bag. [ 30 ] Under cross-examination, he testified that he has lived in Pangman for 16 years, and is now retired. Prior to retirement, he did iron work and re-bar work. He indicated about 70 or 75 people live in Pangman. He isn’t married, and has no children. [ 31 ] He testified that he has a large lot 125 by 50. It requires a lot of work.

He does a lot of gardening. He has lots of flowers. On April 7, 2015, he was working at churning up the soil and putting peat moss into the soil. [ 32 ] Under cross-examination , he said he drove his truck to the store. It has a black hood, with burgandy red sides. [ 33 ] Under cross-examination, he said that he has a nephew and niece that live in Pangman. They are Zy and Alysia. Later, he testified that many kids call him uncle Conrad. [ 34 ] He testified that he suffers from various health problems including arthritis, liver disease, asthma and poor circulation.

Depending on his arthritis, sometimes he can get out of a truck more easily, other times when his arthritis is bothering him, it is more difficult. He couldn’t recall whether his arthritis was particularly bothering him on that day. [ 35 ] He testified that his house is two and a half to three blocks from the Co-op. He testified that he didn’t know the Hatts and did not recognize Hailey. He said that he had never seen her before. He testified that he has never dealt with the Hatt family.

He denied that on his way home, or that at any other time, he stopped and offered a ride to Hailey or that he grabbed her by the arm. ANALYSIS AND DECISION [ 36 ] As mentioned above, the only issue is whether the Crown has proved the accused guilty beyond a reasonable doubt. Both counsel referred to the Supreme Court of Canada decision in R v WD . In the recent decision of R v Berg , 2016 SKPC 55 , I referred to WD and the PNM case, and wrote as follows: Both counsel referred the court to R v W.D. and R v P.N.M. In the P.N.M . case, Mr.

Justice Tallis summed up the WD instruction as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Other case law makes it clear that the process does not involve simply choosing between the accused’s evidence or some piece of the prosecution evidence. There must be a considered and reasoned basis for picking certain evidence over other evidence. The case law also makes it clear that the four questions, enunciated by Mr. Justice Tallis, are not water tight compartments. One person’s evidence is not considered in isolation, but in relation to the whole of the evidence. In addition, there may be considerable overlap.

As a result, reasons for rejecting some evidence may be closely related to or indeed the same reasons for acceptance of other evidence.

[ 37 ] I found both witnesses to be fairly convincing and credible, as they presented their evidence in court. For a nine year old person, Hailey Hatt was very articulate and confident. Counsel did not need to prompt her or pry the events from her. She appeared to simply recount what she recalled. [ 38 ] Mr. Rivard’s evidence was quite brief and concise. He said he did not know Ms. Hatt or the Hatt family, and nothing happened on April 7, 2015. He said that he suffers from some physical limitations that would make it very difficult for him to participate in this matter.

There is nothing in his evidence that causes me to disbelieve him. [ 39 ] I was a little troubled by Hailey’s statements that Conrad was creepy, or creeped her out. At one point, she indicated that she had not seen Conrad much or for quite some time before this incident. Yet, she spoke of him driving by her house and he “creeped her out”. This caused me to question whether she had heard something from town’s people or friends that Conrad was kind of a creepy old man. [ 40 ] I was also somewhat troubled by Hailey’s description of the precise incident of the assault.

She said she was walking and Conrad rolled down his window and asked if she wanted a ride. She said she kept on walking. It was unclear as to how and when Conrad stopped, got out of his vehicle and then confronted her and grabbed her by the arm. It was also unclear as to how Conrad got a hold of the bag of eggs, and how Hailey struggled free of him and then ran home. Hailey spoke of pulling free from him and the two of them tugging on the bag. Conrad Rivard does look older and somewhat frail. On the other hand, Hailey Hatt was eight to nine years of age at the time.

It is difficult to believe that she was strong enough to struggle free of him, if he had a hold of her. [ 41 ] None of this is sufficient for me to say that I don’t believe her, and don’t accept her evidence. As mentioned, she was very clear and articulate. However, I am left with somewhat of an uneasy feeling about convicting on the basis of this evidence. [ 42 ] There are also some things that cause me to be a little uneasy about Mr. Rivard’s evidence. For example, he testified that he has lived in Pangman for 16 years, and it has about 70 - 75 residents.

The Hatts moved into Pangman sometime ago, and lived on the same street, just down the block. In Saskatchewan the old sayings have it that in small town Saskatchewan, everyone knows everyone else and everyone knows everyone’s business. It is difficult to accept that the Hatts moved in just down the street from him, that he knew nothing about this family, and didn’t recognize any of the family members. [ 43 ] When all is said and done, I am in what Mr. Justice Tallis called the second category.

He stated: Secondly, if, after a careful consideration of all of the evidence you are unable to decide whom to believe, you must acquit. [ 44 ] I cannot say that either of the witnesses are untruthful. I cannot say that I believe one and disbelieve the other. I find myself unable to determine the exact facts or sequence of events on April 7, 2015. It follows that I have a reasonable doubt. It is trite to say that doubt must be resolved in favour of the accused and on that basis, I find Mr. Rivard not guilty of the charge.

Dated at the City of Weyburn, the Province of Saskatchewan this ____ of May 2016. _____________________ D. Kovatch