R. v. L.S., 2020 MBPC 63

Citation: R. v. L.S. 2020 MBPC 63 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) A. Wood, ) ) for the Crown - and – ) ) ) L. S., ) ) M. Glazer, Accused ) ) for the Accused ) ) Judgment delivered: November 18, 2020 ) Mary Kate Harvie, P.J. Restriction on Publication: This judgment is subject to s. 486.4 of the Criminal Code which prohibits the publication of anyinformation that may identify the complainants in this matter. Introduction: [1] This case involves allegations of sexual misconduct of a “historical” nature.

The two complainants are the sisters of theaccused and the five counts for which Crown counsel seeks a conviction span various time periods between 1991 and 1996. Crowncounsel called only the two complainants. Defence counsel elected to call evidence and called only the accused, who testified to apreviously disclosed alibi relating to a portion of the time frame of the charges.

The complainants and the accused were questioned oncertain documentary evidence, including some affidavit evidence and Court orders issued in various domestic proceedings involving theaccused and his former partner, as well as the divorce of the parents of the parties. The documents, which were filed as exhibits in theseproceedings, assist to a certain extent, in confirming the time frames of some life events involving the parties. [2] This case requires a legal assessment of the alibi evidence, as well as an assessment of both the evidence of the accused andthe prosecution’s case pursuant to the R. v.

W. (D.), (S.C.C.) analysis, to determine whether the case for the prosecutionhas been proven beyond a reasonable doubt. Some Comments on the Applicable Law: [3] The assessment of evidence in any criminal trial requires a judge to consider both the credibility and the reliability of allwitnesses. This is often a difficult task. As noted by Mainella, J.A in R. v.

Jovel 2019 MBCA 116 : [27] Despite the importance of the analysis of witness testimony, there is little in the way of legal guidance to decide whether a witnessis credible (i.e., willing to be truthful) and reliable (i.e., the factual accuracy of observation, perception or recollection).

Historically, inthe common law system, the trier of fact is simply told to use logic, life experience and intuition to decide whether testimony is acceptedor not, and to what degree (see White v The King, (SCC), [1947] SCR 268 at 272; R v François, (SCC),[1994] 2 SCR 827 at 838; R v Marquard, (SCC), [1993] 4 SCR 223 at 248; and R v Pan; R v Sawyer, 2001 SCC 42 atpara 61). [28] Decisions as to the credibility or reliability of a witness are questions of fact determined by an “assessment of the witness and onconsideration of how an individual’s evidence fits into the general picture revealed on a consideration of the whole of the case” (R vBéland, (SCC), [1987] 2 SCR 398 at para 20). [4] Having said that, the assessment of evidence in cases involving sexual assault allegations has been the subject of some judicialcomment.

There is an increasing awareness on the part of the Courts as to the unique nature and the special care which must be takenwhen assessing the evidence in cases of this nature. In R. v. Roth, 2020 BCCA 240 , the Court provided this useful reminder

respecting the approach to be taken in sexual assault cases: [134] In Lacombe, another case overturning an acquittal, the trial judge “attributed significance” to the complainant’s failure to reportthe assault, but did not explain the reason for that significance. Ultimately, the judge was found to have relied on the stereotypical viewthat a failure to immediately report a sexually aggressive act reflects either that the aggression did not occur, or that there was consent (atparas. 40–41).

The Court emphasized, at para. 42, that “[d]elayed reporting, standing alone, does not assist in evaluating whether anaccount alleging a consensual encounter is true or raises a reasonable doubt” (emphasis added).

The same is true of other behaviours,including, but not limited to, remaining in an assaultive situation, not reaching out to seek assistance when the opportunity arises, orcontinuing to associate with the alleged offender after the fact. [135] A.R.D., Lacombe and similar cases tell us it is prohibitory for judges to assess a complainant’s conduct based on what one would“expect” to see from a sexual assault victim, or to allow that expectation to inform the reasoning process.

Trial judges must ensure thatmyths, stereotypes, presumptive generalizations or unfounded assumptions do not, consciously or sub-consciously, seep into and distorttheir admissibility determinations, credibility assessments, findings of fact, or the reasoning process brought to bear on the elements ofthe offence. An inability to identify the legitimate probative value of this type of evidence will speak volumes about whether, overtly orimpliedly, the judge has engaged in impermissible reasoning.

If a judge can only, or principally, explain the relevance or analyticalsignificance of a complainant’s behaviour on grounds that it is not what they would have expected from a victim of a sexual assault, orwith reference to a myth or stereotype, they will have fallen into error. [5] That is not to say that the presumption of innocence has been altered or reduced in cases involving sexual assault allegations.As with all cases, the allegations against the accused must be proven beyond a reasonable doubt. It is open to the Court to accept all,some or none of the evidence of any witness.

And, given that the accused has testified, pursuant to R. v. W.(D.) his evidence must beassessed against the allegations to determine whether it can be believed, or alternatively, whether it raises a reasonable doubt. Even if hisevidence is rejected, the Court must still be satisfied that the Crown has proven all elements of the offences beyond a reasonable doubt. [6] I am mindful as well that the accused has offered an alibi for a portion of the time frame of the allegations. Since the decisionof the Supreme Court of Canada in Lizotte v.

The King (1950), (SCC), 99 C.C.C.(3d)113, 1950 CanLII48 (S.C.C.) it isclear that alibi evidence need not be proven, it need only raise a reasonable doubt. In R. v. Parrington (OntCA), theCourt articulated a test for alibi evidence which is quite similar to that set out in W. (D.), as did the Manitoba Court of Appeal in R. v.Jack (MB CA). Essentially, if a trier of fact accepts an alibi or alternatively, is left with a reasonable doubt as a resultof the alibi evidence, an acquittal should be entered.

If the alibi evidence is rejected, the trier of fact must still consider whether theallegations have been proven beyond a reasonable doubt. [7] I am mindful as well that Crown counsel did not make a “similar fact” application respecting the evidence of the twocomplainants. Some General Factual Background: [8] The trial in this matter proceeded over many, many months and the case was marked by significant delays, some due tomotions and other pre-trial matters, and others due to factors beyond anyone’s control.

Although it is not my intention to review everydetail from the testimony of the complainants and the accused, some of which addressed periods of time outside the time frame of theinformation, I have reviewed and considered all of the evidence. [9] It is helpful to begin with an overview of some of the less contentious, but nonetheless important, evidence regarding thebackground of the parties. As indicated, the accused is the older brother of the two complainants, K.S. and A.S.

It is clear that theparents of the parties had considerable difficulties in their relationship, resulting in their separation in October of 1983. The accused, whohas a date of birth of May 23, 1973, was ten years old at the time of the separation. Initially, he and his sisters (K.S. was 4 years of ageand A.S. was less than one year at the time of the separation) lived with their father. However, within a number of months it was agreedthat the accused would live with his mother, while the girls remained with their father.

This arrangement continued for a number ofyears. [10] It is also common ground that the relationship between the mother and father remained acrimonious and that visitation betweenthe mother and her daughters was not consistent and was the subject of conflict between the parties. As such, the relationship betweenthe two complainants and their mother was adversely impacted during this period of time. By extension, there was also limited contactbetween the accused and his sisters during this period, and the witnesses agree that they had essentially no relationship.

The parties agreethat their father had a parenting style that could best be described as strict, and that his household was a religious one, while theirmother’s household was more permissive. A

Summary of Evidence of K.S.: [11] K.S. testified that after living in Winnipeg, her father relocated the family to Libau Manitoba. She testified that she and hersister had Sunday visits with her mother and at some point in time while she was in Grade 8 she and her mother permed her hair during avisit. She testified that this upset her father to the point that he threatened to shave her head. As a result, her mother and the police werecontacted and she was ultimately allowed to move to her mother’s residence.

Her evidence as to the exact date of this incident is unclear,but it seems to have occurred some time between January and May of 1993. A.S. remained with her father after K.S. left. [12] What is significant is that K.S. recalls that the accused was either living at her mother’s residence when she moved in, or beganliving there shortly after. She describes the development of a relationship with her brother, some of which was appropriate and positive,

while other aspects were of a sexual nature. She says that the inappropriate sexual contact was not new. Allegations involving conduct which occurred outside the time frame of the offences was admitted over the objection of defence counsel to provide a context to the relationship and to assist in providing time frames for the offences. K.S. alleges that when she was approximately four years old and the accused was 10 or 11 years old, he had anal intercourse with her.

She also described other incidents of inappropriate sexualized behaviour prior to the time frame of the information. [ 13 ] With respect to the time frame set out in the information, K.S. described a range of inappropriate sexual behaviour and touching, including actions such as the accused stealing her towel while she was in the shower, requiring her to run naked to her bedroom.

The alleged behaviour also included more serious actions such as touching her over her underwear, and grinding her body against his during games played in their basement. [ 14 ] K.S. testified that on one occasion, while in the basement where the accused had his bedroom, he forced her on to a pile of laundry and had intercourse with her. After this incident, she says she went upstairs and had a shower, but did not tell anyone in her family.

She described feeling ashamed and disgusted and said she wanted to “cleanse” and “take back my body.” [ 15 ] K.S. testified that at some point in time while she was in Grade 10 she ran away from home and stayed with a cousin. While living with her cousin she says that the accused came to the residence and again forced her to have sexual intercourse. She testified that she has a difficult time remembering whether there were any further incidents of intercourse, as the details of the exact numbers and times are somewhat foggy.

She does recall telling the accused that it had to stop, that she had a boyfriend and suggested that she would ask her boyfriend to beat up the accused. [ 16 ] K.S. testified that she did not tell anyone about the abuse because of her strict religious upbringing and the shame she felt over the incident, along with her desire not to hurt her mother and risk having the family unit torn apart yet again. [ 17 ] As a result of these allegations, the accused is facing charges of sexual assault touching and sexual assault alleged to have been committed between the dates of May 23, 1991 and December 17, 1993 and incest committed between the dates of May 23, 1991 and December 17, 1994.

A

Summary of the Evidence of A.S.: [ 18 ] As noted earlier, A.S. continued to reside with her father after K.S.’s departure, and had visitation with her mother every second weekend. She testified that she was unhappy living at her father’s residence and did not like living separate from her sister, and she eventually moved in with her mother after finishing grade 7 , being May or June of 1995. A.S. indicated that she was having difficulty identifying an exact time frame.

The actual date of her move, and by extension the time frame within which the offence may have been committed was the subject of much cross-examination. According to her recollection, the accused was not living at the residence when she moved in. She recalls having a bedroom on the main floor, but eventually moving to the basement to make room for the child that K.S. was expecting. The baby was born in January of 1996. She testified that the basement had been unfinished, and that at that time there was some rough framing and drywall put up to create her room and a second bedroom.

She says that the accused occupied that second bedroom, although she cannot identify when he moved back to the home. She does confirm that he had moved in and out several times, and that it was her recollection that he was over “frequently” even when he was not living there. [ 19 ] A.S. testified that before she relocated to her mother’s residence, she had little contact with the accused, but that this changed with her move.

She describes that she found her older brother to be exciting and “cool”, that he introduced her to music and that while they would “hang out” she would sometimes massage his shoulders and head or tweeze his brows. She described other behaviour on the part of the accused, that could best be described as inappropriate, which was admitted over defence counsel’s objections as part of the narrative, but could not identify whether these incidents occurred before or after the alleged assault. [ 20 ] A.S. testified that one day when they were hanging out the accused offered to give her a massage.

While she was lying face down on his bed, she says that as he massaged her back under her shirt he touched the sides of her breasts. As well, while he was rubbing her legs, he ran his hands up under her underwear, touching “the outside of my vagina” under her underwear. She describes feeling “stuck and kind of shocked and confused” by his actions.

Although she did not tell anyone what had occurred, she avoided being involved in any massaging after this incident, which she estimates occurred when she was in Grade 7 or 8. [ 21 ] As a result of this allegation the accused is charged with sexual assault and sexual touching between the dates of January 1, 1995 and September 1, 1996. The Period Post-Incidents but Prior to Disclosure: [ 22 ] The Court heard considerable evidence as to what occurred after the alleged incidents came to an end, but prior to the sisters attending together to the police in 2015.

The complainants were questioned extensively about the nature of their relationship with the accused. I do not intend on reviewing all of the details respecting this period. I am also mindful of the caution articulated in the case law when assessing this type of evidence, specifically that a continuation of a relationship between the parties is a factor for the Court to consider but should not necessarily result in an adverse credibility finding against either complainant. [ 23 ] Generally speaking, K.S.’s relationship with the accused was fraught with periods of acrimony.

There were times when K.S. and her boyfriend lived nearby the accused and his girlfriend and the parties spent time together. Specifically, K.S. had developed a relationship with the accused’s girlfriend, and at times the two women socialized. At times K.S. asked or allowed her daughter to be babysat by the accused. Although I am satisfied that this was not a regular occurrence, defence counsel argues that this and other ongoing

contacts are factors for the Court to consider when assessing K.S.’s credibility. Once the accused and his partner separated, K.S. sided with his girlfriend and against the accused during a custody battle. [ 24 ] For her part, A.S. confirmed that she continued to live at her mother’s residence after the accused had left and until the summer of 2000, when she moved in with the accused and his girlfriend. She says that she was still attending school, which was not far from his residence, and that she helped babysit his son.

This appears to have been an arrangement reached between her mother and the accused and his partner, but was one to which she agreed. A.S. provided an affidavit in support of the accused in a custody dispute between the accused and his previous girlfriend who was the mother of his child. The Evidence of the Accused: [ 25 ] The accused testified, denied committing the offences and testified as to where he resided, both during the various time frames covered by the offences and after.

Like the complainants, he was questioned extensively about time periods beyond the dates in the Information. [ 26 ] The accused, who is approximately nine years older than A.S. and six years older than K.S., confirmed that while the complainants were residing with their father he had little if any relationship with them. He denied spending time with either sister during the times they visited their mother’s home, preferring to be out in the company of his friends.

He says that this limited contact continued when they relocated and lived with their mother. [ 27 ] More significantly the accused testified that, but for several short periods of time when he lived at his mother’s residence, he was either living elsewhere in Winnipeg or was living and working in Saskatchewan. Although he struggled at first to confirm the dates, he testified that he was living in Theodore, Saskatchewan from January, 1993 to the spring of 1994. He also testified that his family came to visit him, an event confirmed by K.S., although she was uncertain as to the date.

A.S. also recalled the accused residing in Saskatchewan. While his evidence as to his time in Saskatchewan does not cover the entire time frame of the charges, it impacts directly on the opportunity he would have had to commit the offences against K.S. at his mother’s residence. [ 28 ] According to the accused, during this time frame he had little if any relationship with K.S..

Even when he was in Winnipeg he firmly denies participating in the type of activities which she said were part of the brother/sister activities that she described, such as listening to music, smoking marijuana, or giving her rides to her friends’ houses. [ 29 ] Having returned from Theodore, Saskatchewan in the spring of 1994, the accused testified that he lived with friends at various locations in Winnipeg, with the exception of a period of approximately one month in November and December of 1994 when he returned to his mother’s house.

He also conceded that there were shorter periods of days or a week between moves when he would return home. He also confirmed living at the residence with his girlfriend for a period of time prior to their child being born. However, this was during a time period outside that covered by the Information and the complainants both agree that there were no problems with the accused while his girlfriend was present. [ 30 ] With respect to A.S., the accused denies spending time with her as she described once she had relocated to their mother’s residence.

He did confirm that she lived for a period with him, his then girlfriend and his son, at the time A.S. was attending school and helping with childcare. A.S. provided several affidavits in support of the accused in a custody dispute between the accused and the mother of his son. Analysis of the Law and the Evidence: [ 31 ] The legal test set out in R. v. W. (D.) requires the Court to assess the evidence of the accused in the context of the allegations made against him.

Similarly, the assessment of the alibi evidence requires the Court to determine whether the evidence presented can be believed or raises a reasonable doubt. As such the credibility and reliability of the complainants must be assessed, as it is against this backdrop that the alibi evidence will be weighed.

In assessing the evidence of the accused, it is open to the Court to consider not just specific alibi evidence but his evidence as a whole. [ 32 ] I am mindful that the complainants were both relatively young at the time of these incidents, and their evidence must be assessed bearing in mind their ability to recall details and understand events. It was evident in both direct and cross-examination that they were, at times, struggling to identify an accurate time frame for the offences. Both tended to identify the alleged incidents using their school grade rather than their age.

And while this is understandable, it meant that during cross-examination defence counsel had to question each complainant extensively to attach an actual date range to the incidents. At times, both complainants came across as reluctant to acknowledge the dates of some basic foundational events, such as when they began school.

This has the dual effect of making their evidence as to the date of the incidents difficult to assess and adversely affecting the credibility and reliability of their evidence. [ 33 ] Not unlike the complainants, the accused at times struggled with providing accurate dates as to a number of events, particularly with respect to where he resided during periods covered by the allegations and beyond. Having said that, he did testify that from January 1993 to the spring of 1994, he was living and working for a friend in Theodore, Saskatchewan, who owned an Esso gas station.

The accused had attended Red River Community College and was trained as a mechanic. The accused testified that because he was working for room and board received no pay and he has no documentation to support his claim. [ 34 ] Crown counsel argues that concerns about the accuracy of his memory, coupled with the lack of corroboration, should cause the Court to conclude that his alibi cannot be believed, nor does it raise a reasonable doubt.

She also argues that the generality of the alibi, as disclosed, made it difficult for the Crown to call evidence to rebut. [ 35 ] It is not possible to comment on the details of the disclosure of the alibi as the specifics were not put before the Court. However, I do share the Crown’s concerns as to some of the accuracy of the accused’s evidence generally. Much like the complainants, the passage of time has made certain details elusive. It is for this reason that, in assessing the alibi evidence, I cannot conclude that it can be unreservedly accepted.

[ 36 ] Having said that, I am satisfied that the alibi evidence does raise a doubt as to the ability of the accused to have committed these offences at the times attested to by the complainants. I say this for several reasons. First, in her evidence K.S. corroborates the accused’s assertion that his family came to visit him while he was living in Saskatchewan. A.S.’s evidence indicates that she too was aware that he had resided in Saskatchewan.

That being the case, his evidence as to residing in Saskatchewan is not something that has been fabricated. [ 37 ] Secondly, the alibi suggests that the accused was absent for most but not all of the time frame of the allegations. Had it been a fabrication, it would seem logical that he would have expanded the dates to cover the entire period. This factor actually bolsters the accused’s credibility. [ 38 ] Thirdly, his evidence must be assessed against that of the complainants’ evidence.

To that end, I note that there is a lack of clarity from the complainants as to when the accused was supposed to have been living at his mother’s residence and, by extension, when any of the alleged assaults actually took place. It is common ground that the accused was in and out of the residence many times over the years, and that those periods when he was living at the residence with his girlfriend could be eliminated as times when the assaults may have taken place.

I recognize that a trier of fact should use caution when assessing the need for specificity as to offence dates, particularly in relation to historical assaults.

But the lack of specificity on the part of a complainant, including the lack of any documentary or other evidence to corroborate the dates is one factor to take into account when assessing the evidence of the accused. [ 39 ] I am satisfied that the alibi evidence of the accused, when considered in light of the evidence of the complainants, is sufficient to raise a reasonable doubt as to his ability to have committed the offences against K.S. for some of the time frame of the information. [ 40 ] However, because the alibi does not cover the entire time frame respecting K.S. and does not cover the period respecting A.S., the Court must go on to analyze the evidence pursuant to the W. (D.) test. [ 41 ] It is not my intention to review every detail attested to by the witnesses.

Both the complainants and the accused testified over a lengthy period of time, and a significant number of details as to place, time, events and motivation were put to each of them. While I have considered all of the evidence, I only intend to focus on those points which I consider to be most relevant. Defence counsel asserts that their testimony revealed a number of inconsistencies which, when considered, should leave the Court with a reasonable doubt.

Crown counsel urges the Court to accept their evidence and reject the evidence of the accused. [ 42 ] I want to be clear that it is important to reject any “rape myth” assessments of the evidence. For example, I do not attach any weight to the evidence that neither complainant called out during the alleged incidents, or that they did not immediately disclose the alleged assaults. Nor do I have any concerns about the manner and timing of the disclosure to the police, with one caveat.

I do have some concerns about the fact that the complainants discussed a photograph of the accused and his then teenage daughter which supposedly was the catalyst for their coming forward. It would have been helpful for the Court to have seen the photo or, at the very least, to have heard from the officer who was purportedly shown the photo. I note as well that the accused was not questioned about the photo.

Having said that, little turns on the actual timing or manner of the disclosure to the police. [ 43 ] Further, defence counsel identified a number of inconsistencies in the evidence of each of the complainants as it related to their police statements.

Without going through the details of each of those alleged inconsistencies, I am not satisfied that most rise to the level suggested by defence counsel, but rather represent details which perhaps were not expanded upon as much as they were during their respective testimony. [ 44 ] However, I do find that there are aspects of K.S.’s evidence which did raise some significant concerns. First, it is clear that over the years she had feelings of animosity towards her brother, as evidenced by the affidavits and other materials filed with the Court in the custody battle between the accused and his former girlfriend.

The allegations of sexual misconduct were not disclosed in the affidavit evidence. Even accepting her evidence that she was not ready to disclose the past abuse, I am concerned about the evidence that K.S. allowed the accused to be in the company of, and in some instances babysit her daughter. K.S.’s explanation for this was that, given her daughter’s young age at the time, she felt that the risk was reduced. This must be weighed in light of the allegation that her brother anally assaulted her when she was very young.

I am also mindful that this did not occur under urgent circumstances, but rather when the complainant and the accused’s then girlfriend were going out for an evening of drinking. K.S. also admitted that in later years her mother would on occasion take her daughter to see the accused.

Even accepting her claims that she objected to her mother’s actions, the fact that K.S. allowed any visits or allowed the accused to babysit her daughter alone is something which adversely impacts on her credibility as it relates to these charges. [ 45 ] With respect to the evidence of A.S., as noted earlier, I am concerned about the general reliability of the allegations. I note that there is no evidence from K.S., or anyone else for that matter, confirming the developing relationship with the accused as described by A.S.

The age difference between the parties must be considered when assessing her description of “hanging out” with her brother, something he denies. Further, her evidence may explain how it was that she ended up residing with the accused, but it falls short in explaining why it was she supported the accused during his custody battle. These are all factors to be assessed by the Court. [ 46 ] In his evidence, the accused painted a starkly different picture of the relationship between himself and his sisters after they relocated to their mother’s address.

Contrary to the evidence of the complainants, the accused testified that he had little to do with either of them either before they resided with their mother or after their respective moves. It is difficult to reconcile the disparity in this evidence. Neither complainant testified to having seen the accused interact with the other. I am mindful that the accused was considerably older than the complainants and that while he was “in and out” of the residence, for much of the time he was residing elsewhere.

I am concerned that the accused seemed reticent to acknowledge any relationship with his sisters, and this combined with concerns about the reliability of his evidence as to dates and times makes it impossible for me to conclude on the first prong of the W. (D.) test that his evidence can be believed. [ 47 ] However, I have to consider his denials on the whole of the evidence with respect to each complainant. With respect to K.S., I am satisfied that when it is considered in light of the evidence as a whole, his denials raise a reasonable doubt. I note that the accused was firm in his denials.

He was not cross-examined on the actual alleged assaults. There is no other evidence to contract his version of

the events. [ 48 ] Similarly, with respect to A.S., I am satisfied that when considered in the context of the allegations, the accused’s denials of the assaults have the effect of raising a reasonable doubt. The accused was largely unshaken during cross-examination and was not confronted with the details of the assault. I make these findings taking into account all of the circumstances and evidence, including the test to be applied to the evidence as articulated in R. v. W. (D.) . Conclusion [ 49 ] Given all of the foregoing and the finding of the Court, an acquittal will be entered on all charges in the Information. “Original signed by” M.K Harvie , P.J.