R. v. R.W., 2020 MBPC 55

CITATION: R. v. R.W., 2020 MBPC 55 IN THE PROVINCIAL COURT OF MANITOBA Portage la Prairie Centre BETWEEN: Her Majesty the Queen ) J. Funke ) for the Crown - and - ) ) R.W. ) W. Marks ) for the Accused Accused ) ) ) Reasons for Decision ) Delivered: October 26, 2020 at ) the City of Portage la Prairie, ) in the Province of Manitoba Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code of Canada , any information that could identify the complainant, including the name of the accused, shall not be published in any document or broadcast or transmitted in any way. Hewitt-Michta, P.J.

Introduction [ 1 ] R. W. is charged with sexual assault and sexual interference with respect to allegations of sexual acts committed on the thirteen- year-old sister of his former domestic partner. The only issue is whether the incidents she described in her evidence occurred. Complainant’s Evidence [ 2 ] The complainant, D.B., was fourteen-years-old when she testified in court and thirteen-years-old at the time of the alleged offences. The incidents reportedly occurred in January and October of 2019.

D.B. testified the first sexual contact was approximately two weeks before she provided her first statement to police on January 25, 2019 [ 3 ] D.B. testified she first had sexual intercourse with her pregnant sister’s boyfriend in her sister’s home where the accused was living at the time. She understood she would be home alone babysitting her niece while the adults attended bingo.

The accused stayed home to look after his son from another relationship. [ 4 ] In the living room, while her sister was in the bathroom getting ready to go out, D.B. initiated physical contact by kissing the accused who was seated next to her. After her sister left, they kissed again and had sexual intercourse in the living room on a bed. He took D.B.’s pants off. He unzipped his own pants. He wore a condom. She estimated the sex lasted three minutes. [ 5 ] D.B. was not sure how many times they had sexual intercourse that night but knows that it was more than two times.

She believed her sister was gone for three or four hours and she went home when her sister returned. [ 6 ] D.B. did not remember the precise time. She did not remember the details of any conversation with the accused leading up to the

physical contact. She said she could not explain how she felt about the accused at the time. [ 7 ] Following the first incident, there were further instances of sexual activity. She estimated they had sex more than five further times including occasions when her sister was home asleep in the same room with headphones on. [ 8 ] D.B.’s sister confronted her asking whether she was sexually involved with the accused. D.B. confirmed that she was. D.B.’s mother and sister went to police.

D.B. did not want to speak to police. [ 9 ] D.B. initially denied having any communication with the accused after her sister confronted her. After reviewing her statement, she recalled she had a further conversation with the accused in which she asked the accused whether he regretted the sexual activity and he said that he did not. [ 10 ] The accused was arrested. D.B. next saw him in October of 2019 when he was on bail conditions including no contact with her. She does not remember the exact date. [ 11 ] D.B. and her sister were drinking together.

Her sister invited the accused and his twin brother to the residence. D.B. and her sister finished a 26 ounce bottle of vodka together before the accused and his brother attended. D.B. drank more of the vodka than her sister. D.B. and her sister were then drinking beer. D.B. knew the accused’s brother was coming but not the accused. [ 12 ] D.B. estimates she was at “6 or 7” on a 1-10 sobriety scale where 1 is completely sober. It was nighttime, around midnight. The four were drinking together in the living room. Her sister started yelling at the accused.

D.B. cannot remember what her sister was yelling or what the fight was about. [ 13 ] D.B. took the accused into a back bedroom where they had sexual intercourse until her sister walked in. D.B. said she initiated the sexual activity by kissing the accused. Her sister walked out of the room and told the accused’s brother “ they’re fucking” and the brother told her to leave them alone. [ 14 ] D.B.’s sister kicked them out of the bedroom so they moved into another room together. They lay down on the bed to resume sexual activity but her sister continued to “ black out” at them.

The accused and his brother left. [ 15 ] The night ended when the police showed up in relation to conflict between D.B. and her sister. [ 16 ] D.B. provided a second police statement on January 6, 2020. She did not want to talk to police just as she did not want to testify in court. She did so because she understood she had to. She feels this is a private matter. [ 17 ] D.B. described feeling depressed following the incidents because, in her words, “I fucked my own sister’s baby daddy”. She has been coping by drinking alcohol. Her relationship with her sister remains “ rocky” as they rarely speak to one another.

Complainant’s Sister’s Evidence [ 18 ] J.M. is 25 years-old. The accused is the father of her two children and D.B. is her younger sister. [ 19 ] In January of 2019, she suspected sexual activity between the complainant and the accused. She confronted each individually saying the other had already admitted to sexual activity and thereby procured confessions from both the complainant and the accused. She confronted the accused first. He confirmed sexual intercourse with the complainant on more than one occasion but said he did not know how many times.

He told her the first incident was the night she had gone to bingo with her mother. She asked if he used protection and he said “not the last time”. She went to her mother’s residence and similarly confronted D.B. who confirmed the same information. [ 20 ] In cross-examination, J.M. agreed she did not tell police in her statement that the accused admitted not using protection during the last sexual liaison. Police did not obtain a statement from her until 2020.

There is corroboration in that J.M. and her mother took D.B. to a doctor to ensure she was not pregnant. [ 21 ] J.M. does not know the precise date but remembers a night in January when she attended bingo with her mom. It stands out because the accused’s son rarely visited their home and she rarely attended bingo. [ 22 ] J.M. went to see her mother at her place of work. They took D.B. to the doctor and the mother then took D.B. to speak to police. J.M. did not go to the police station with her mother and sister.

She said she felt she had been through enough and felt it was sufficient for her mom and sister to speak to police. [ 23 ] J.M. said her recollection of the October incident is somewhat hazy because of her level of intoxication and because it was upsetting. She has not wanted to dwell on it or think about it. She and D.B. were drinking together at J.M.’s house. They started drinking hard liquor during the afternoon. [ 24 ] The accused and his brother showed up. She does not remember but thinks she probably invited them.

She missed the accused who was recently released from jail and thinks she probably wanted to see him. They drank together. She remembers being in the living room with the accused’s brother and noticing the complainant and accused were gone. She found them in her bedroom, pants off, and engaged in sexual intercourse, which she further described as “missionary”. She walked away numb, hazy, in disbelief.

She remembers sitting on the couch dwelling on it and then her memory fades. [ 25 ] She denies any sexual contact with the accused’s brother that evening. [ 26 ] J.M. estimates she was at an “8” on a sobriety scale of 1-10 where 1 is completely sober. The next day she continued to feel in disbelief, confused, and that her memory was hazy. She does not remember speaking to D.B. the following day. She did not report the incident to police. She is not sure why though suggested she may have hoped the accused could still be involved in helping her with their

children. [ 27 ] J.M. became emotional describing a changed relationship with her sister D.B. They were once best friends and now rarely speak to or see one another. [ 28 ] Police did not take a statement from J.M. until January of 2020 at the crown’s request. Accused’s Evidence [ 29 ] The accused is 25 years-old. He admits he knew the complainant was thirteen years-old during the relevant time-periods. [ 30 ] In January of 2019, he and J.M. were separated, but continued to live together for the sake of their child. He had his own bedroom in J.M.’s house. [ 31 ] His contact with D.B. was limited.

Prior to January of 2019, he did not speak with D.B. unless others were around. In January of 2019, they had even less contact; they did not speak unless J.M. was talking with both of them. [ 32 ] The accused recalls one occasion in January where he was alone with D.B. He had his son at the home, which was rare. J.M. brought D.B. to the home. J.M. was called to work. He was drinking a lot at the time. He was drinking “ a mickey ” that night and D.B. stayed because J.M. thought he would need help with the children. [ 33 ] The accused said he sat talking with D.B.

She asked why he was depressed and drinking so much and he confided in her about his failing relationship with J.M. He told D.B. the relationship with J.M. was troubled because she cheated but that he was hoping to work it out for the sake of their children. [ 34 ] The accused denies any sexual contact with the complainant on that occasion. D.B.’s mother picked her up about an hour and a half later. He was otherwise never alone again with D.B. in January though he did see her other times when J.M. was also home. [ 35 ] The accused learned he would be charged with sexual assault via text from J.M.

She kicked him out of the residence but days later invited him to return and he continued to live at the home off and on. [ 36 ] The accused was eventually incarcerated until he gained release in October. He denies any contact with D.B between the time he was charged and the October incident. [ 37 ] There was an incident in October. He had been seeing J.M. for about a week prior to the incident. She invited him by text to come to her home as she was buying alcohol. She told him to invite his twin brother.

When he and his brother arrived at J.M.’s home, he learned J.M. had also been texting his brother and that D.B. was in the home as well. He was subject to a no-contact condition with D.B. but did not leave. [ 38 ] The four were drinking together in the living room. He noticed J.M. was “ hitting on ” his brother more than himself. It seemed like she did not want him. He got upset. D.B. was sitting beside him. He had a personal conversation with D.B. during which he admitted his continuing love for J.M. and his upset that she did not seem to want him.

D.B. told him her mother was hopeful J.M. and the accused would reunite. They also talked about his time in jail. [ 39 ] The accused noticed his brother and J.M. were no longer in sight. He saw them emerge from a back bedroom. J.M. cut him off from the alcohol and he believed she was focussed on getting his brother drunk. He said J.M. started arguing with him and hit him in front of his brother and D.B. His brother pulled J.M. away and they stayed in the kitchen drinking together.

After J.M. hit him he did not want to be there anymore and left with his brother. [ 40 ] The accused denies any sexual contact with the complainant during the October incident. He has no idea why D.B. or J.M. would fabricate sexual assault allegations against him. [ 41 ] In cross-examination, the accused confirmed it was he who ended the relationship with J.M. because he was upset about her infidelity.

He denied being angry with J.M. but said he was heartbroken, sad, and felt betrayed. [ 42 ] He told the crown the text from J.M. about being charged with sexual assault came approximately one week after the night he was alone with D.B. in January. [ 43 ] In cross-examination, the accused confirmed he was not arrested until March of 2019. He was in custody until his release on bail in October.

He agreed with the crown that he knew he was not allowed to have contact with D.B. but chose to remain at J.M.’s residence with her in October. [ 44 ] The accused testified in cross-examination that his brother told him on the walk home that he had sexual intercourse with J.M. at her home that October evening. [ 45 ] The accused agreed he did not ever fight or argue with D.B.; that he was not harsh or in any conflict with D.B. Accused’s Brother’s Evidence [ 46 ] J.M. messaged him in October inviting him to come to her home to drink. He knew her sister D.B. was there as well.

He and the accused went to the house in the early evening hours, about 6:00 or 7:00 PM. He was sober when he went to J.M.’s home. The accused was also sober. This was not the first time he had been invited to J.M.’s to hang out and drink. [ 47 ] In cross-examination, he agreed he expected D.B. to be at the residence before they ever got there. He knew the accused had been in jail charged with sexual assault on D.B. He agreed he knew it was not a good idea to be partying with D.B.

[48] When they arrived, J.M. had been drinking and seemed intoxicated. He estimated she was at a “3” on a 1-10 sobriety scale whenthey arrived and by the time they left she was at “8 or 9”. He watched her consume a significant amount of alcohol. She was staggeringand her speech sounded impaired. When he arrived he did not think D.B. was particularly drunk, maybe a “2”, and maybe a “6” by thetime they left. She was not as drunk as her sister. [49] The four sat together drinking alcohol. He was drinking beer as well as some whiskey. He thinks they stayed until aroundmidnight.

He estimated he was at “4” on a 1-10 sobriety scale when he left, as was the accused. [50] Early in the evening, J.M. took the accused into a room. When they came back out of the room, he agreed the accused’s demeanorwas not markedly different and he did not appear upset. He was told by the accused that J.M. said she wanted to be with him and that theaccused could have her sister D.B. They laughed about this suggestion. He had not had any intimate relationship with J.M. prior to thisincident.

J.M. had sent him messages of a sexual nature before so he agreed with the crown it was not that shocking to hear she hadsuggested they “hook up” that evening. [51] He was reluctant to agree with the crown’s suggestion that the four coupled up in separate parts of the house, just as J.M. hadsuggested. He agreed that he and J.M. went into a bedroom together. He said they were only talking and did not engage in sexual activity.In cross-examination, he agreed J.M. was grabbing him, touching his legs, and offered oral sex.

He denied engaging in sexual intercoursewith J.M. [52] When he and J.M. left the bedroom, J.M. went to another bedroom and opened the door. He insisted the accused and D.B. werefully clothed and sitting on the bed talking, but J.M. became angry. She was yelling and telling them to leave. They left within fiveminutes.

He grabbed a bottle of wine and took it with them, even though they had not contributed any money towards the alcohol. [53] He denies ever seeing the accused and D.B. having sex that night. [54] He agreed that he attended court on the first day of the accused’s trial after consuming alcohol that morning. He estimated he wasat a “2” or “3” on a 1-10 sobriety scale. He agreed he was too drunk to testify and conceded he did not remember stumbling into thecrown attorney.

He agreed that at the conclusion of the October incident, he would have been significantly more intoxicated than whenhe attended court too intoxicated to testify and staggering. [55] He agreed in cross-examination that he cares for the accused, his twin brother; that he knows the accused is in jeopardy of going tojail for a long time; and that he would do almost anything to help the accused stay out of jail. He denied lying to the court to protect theaccused. Analysis [56] As is true of most sexual assault allegations, this case turns on credibility. I am mindful of the approach set out in R. v.

W.(D). (SCC), [1991] 1 S.C.R. 742. In deciding whether the crown has met its burden of proof, I first consider whether I believethe accused. Second, even if I do not believe the accused, I must consider whether his evidence leaves me with a reasonable doubt aboutwhat happened. Third, even if I am not left in doubt by his evidence, I must consider whether, on the evidence presented by the crown, Iam convinced beyond a reasonable doubt that the accused committed the offences charged. [57] I am mindful that the accused’s evidence should be considered in the context of all of the other evidence.

I am also aware that thereis no onus on the accused to explain why the complainant might have a motive to fabricate the allegations. [58] I do not believe the accused’s evidence, nor does his testimony raise a reasonable doubt about what happened. His evidence doesnot make sense in at least two respects and is inconsistent in material respects with the evidence of his own brother.

His version of eventsis self-serving. [59] First, he emphasized a lack of relationship or meaningful contact with the complainant in and around January of 2019, yet on theevening of the first alleged sexual contact, he describes a personal and seemingly vulnerable exchange about his relationship with thecomplainant’s sister. He further testified that in the days following that conversation he and the complainant essentially avoided oneanother unless J.M. was speaking to them together. His version, a denial of any sexual contact or conflict, does not account for thisintentional avoidance.

It stands out as nonsensical on his version of events. [60] Second, on the accused’s version, he was falsely accused of sexual assault by D.B., charged by police, and incarcerated for monthsleading up to the October incident yet, he says, he attended and remained at J.M.’s residence in October with D.B. There is no indicationin his version of any animosity towards D.B. rather he admits spending time alone talking with her about quite personal and emotionalmatters.

From a common sense perspective, this is specious and defies common sense. [61] Presumably the accused’s brother was called as a defence witness to corroborate the accused’s version of events in respect of theOctober allegations. There are material inconsistencies between their stories that reveal the self-serving nature of the accused’s evidence.The accused did not mention being in a bedroom alone with J.M. or her suggestion that he couple with D.B. The accused’s versionexcluded any mention of him being alone in a bedroom with D.B. or of J.M. finding him in a bedroom with D.B. prompting her angryoutburst.

The accused and his brother provided contradictory evidence about whether J.M. and the accused’s brother had sexualintercourse that evening. [62] I am satisfied beyond a reasonable doubt that the complainant’s version of events substantially reflects what transpired. I say thiswhile acknowledging my belief that none of the witnesses who testified were completely forthright or reliable in all respects. Thecomplainant initiated a sexual relationship with the father of her sister’s children. She is ashamed; never sought out police; and is notinvested in a successful prosecution of this matter.

The complainant’s sister might have pursued a sexual relationship with the accused’stwin brother and bartered her thirteen-year-old sister to the accused for a sexual purpose. The accused’s brother may have had sexual

intercourse with the mother of his twin brother’s children and is no doubt motivated to spare the accused from a lengthy jail sentence. All of the witnesses had reasons to conceal or gloss over aspects of these incidents and relationships. All of the witnesses were consuming alcohol during the October incident. [ 63 ] The complainant was not a perfect witness. She did testify in a relatively straightforward manner, though she was at times flippant in her responses to counsel. She did not want to report these matters to police.

It was clear she did not want to be in court discussing matters of such an intimate nature about which she confessed feeling ashamed and depressed.

It is evident she was not forthcoming with police about all details and there were some inconsistencies between what she told police officers in her two statements and what she told the court. [ 64 ] The complainant said she reviewed her statements before testifying but she later admitted she had not done so because she did not want to relive the incidents. [ 65 ] D.B. told police the first time she kissed the accused was days before the first incident of sexual intercourse. In court, she testified the kiss and first sexual encounter happened on the same day.

D.B. testified in court her sister J.M. was home when she first kissed the accused. D.B. testified she told a police officer J.M. was home but it is nowhere in her statement. [ 66 ] D.B. testified the first instance of sexual intercourse lasted about three minutes. When asked by police a week or two after the incident, she said she did not remember how long it lasted. [ 67 ] D.B. testified she and the accused had sexual intercourse more than two times on the first occasion in January. In her first statement to police, she did not mention intercourse happening more than once.

When confronted with the contradiction in cross- examination, she countered that she was uncomfortable talking to a male officer. When reminded it was a female officer who took her first statement, D.B. said she was not comfortable talking to anyone about the incidents. [ 68 ] In her first statement to police, D.B. described J.M. hugging her and telling her what happened with the accused was not her fault. In her second statement to police, D.B. said her sister got mad and swore at her for her involvement with the accused.

When confronted about this seeming contradiction, D.B. said both of those reactions occurred but that she had not told both officers about both interactions. The statements were taken almost a year apart. Given the passage of time between statements and the likely spectrum of emotional reaction to the situation, D.B.’s explanation seemed reasonable. [ 69 ] In the second statement to police, D.B. provided information about more sexual encounters with the accused, including multiple incidents of sexual intercourse per day. She did not provide all of this information in her first police statement.

In cross-examination, D.B. said “ the truth came out more ” in her second statement. It makes sense D.B. may have been more comfortable and forthright at the time of her second statement to police than she was when she provided her first statement. [ 70 ] D.B. denied purchasing liquor but when confronted with a prior statement to police, admitted she purchased alcohol for the October incident. [ 71 ] D.B. testified the accused was polite and never violent or threatening in terms of their sexual contact.

Cross-examination revealed D.B. told police in her second statement that the accused sometimes forced her to do things she did not want to do, like “ screwing” . D.B. said she did not remember ever saying it that way and that she only meant the accused sometimes “ grabbed at [her] and shit”. [ 72 ] D.B. agreed with defence counsel’s suggestion during cross-examination that she told police what she thought they wanted to hear during her statements. She also told the police officer who took her second statement that on a spectrum of 1-10, she rated her level of honesty at a “7”.

She insisted, however, that she did not mean she was lying to police but rather was referring to how much detail she was providing to police about the incidents. [ 73 ] Defence counsel suggested a further contradiction. When asked during her second statement whether she and the accused practiced safe sex, the complainant said “ no ”. In court, she testified the accused used a condom during the first sexual encounter in January. When confronted with this in cross-examination, D.B. explained that the accused did not always use a condom.

This was corroborated by J.M. who testified the accused admitted to her he did not use a condom “ the last time ” he had sex with the complainant. I did not find this to be a contradiction between her statement and her evidence in court. [ 74 ] D.B. admitted she used alcohol to cope with her feelings about the situation with the accused and her sister. Consequently, she was consuming alcohol regularly and in significant quantities around the time of the October incident. [ 75 ] D.B. admits she occasionally lies about feeling sick at school so she can come home.

I suspect the same could be said for many young people and I do not find this a meaningful consideration in assessing the complainant’s credibility. [ 76 ] The frailties in the complainant’s evidence are largely explained by her immaturity; her disinterest in pursuing charges against the accused; the passage of time since the incidents and between her statements; and her reluctance to remember or reflect upon the incidents. She did not want to talk to police or the court about these incidents.

Nonetheless, the frailties in her evidence arising from inconsistencies, contradictions, and lack of conciseness as well as forthrightness are red flags in terms of the reliability of her evidence.

Corroboration is not required in sexual assault cases but in this particular case, I am concerned it might be dangerous to accept D.B.’s evidence without meaningful corroboration. [ 77 ] I find that D.B.’s evidence is substantially corroborated by the evidence of the other witnesses, including the accused. [ 78 ] J.M. and the accused both confirm an occasion in January where the accused and complainant were the only adults in the residence for a lengthy period of time. The only discrepancy is the accused says J.M. was at work not Bingo.

The accused admitted he was alone in the living room with the complainant where she says the sexual intercourse took place. He essentially confirms the complainant’s version of events save for his denial of any sexual activity.

[79] J.M. testified the accused admitted to sexual activity with the complainant in January. Her evidence concerning the scheme sheused to confront each of D.B. and the accused was convincing evidence unshaken in cross-examination. It was corroborative of thecomplainant’s version of events. It offsets the defence suggestion that D.B. is a liar who got in over her head with a falsehood about sexwith her sister’s boyfriend.

J.M. confronted both individually and obtained consistent admissions. [80] While I have some concerns with the forthrightness of J.M.’s evidence concerning the details of the October incident, her evidenceabout finding the accused and D.B. in a bedroom together engaged in sexual intercourse is consistent with the evidence of D.B. and theaccused’s brother. While I found much of the accused’s brother’s evidence logical, I did not believe the accused’s brother when he saidD.B. and the accused were not engaged in sexual activity.

It is clear from the evidence of all that J.M. became upset and the accused andhis brother left the residence very soon after. It is logical J.M. would be upset finding the accused and her sister having sexualintercourse.

It does not make sense that she would have become upset if they were only sitting on the bed, fully clothed, talking. [81] Save for the accused’s brother’s denial about the complainant and accused engaging in sexual intercourse, his version of eventswas largely corroborative of the complainant’s evidence and served to illuminate the events of that evening and explain how the accusedand D.B. would end up in one bedroom, while J.M. and the accused’s brother would be together in another.

The suggestion the accusedcould couple up with D.B. really only makes sense if there is truth to the rest of D.B. and J.M.’s evidence about what happened inJanuary. [82] I also find confirmation of the complainant’s evidence in the fact that there is no evidence in this case of a motive to fabricate. Theaccused bears no onus to demonstrate that a complainant has a motive to fabricate. The absence of motive to fabricate is merely onefactor to be considered in assessing credibility. In this case, there is no apparent animosity on the part of the complainant towards theaccused.

There is no evidence of any arguments, conflicts, or hard feelings between them. The complainant appears to have gainednothing and to have lost a great deal in terms of her own well-being and her relationship with her sister.

Similarly, there was noappearance of animus or hostility on the part of J.M., who testified she remains open to the possibility of the accused helping her to raisetheir children. [83] Having carefully considered the complainant’s evidence in the context of all of the evidence; being mindful of its frailties butfinding its reliability bolstered by corroborating evidence and lack of motive to fabricate, I am satisfied the crown has proven beyond areasonable doubt that the accused had sexual intercourse with D.B. in both January and October of 2019. [84] I am left with some doubt as to the frequency of the sexual interactions.

The complainant provided inconsistent information topolice in her two statements and there is no detailed corroborating evidence. I am satisfied beyond a reasonable doubt there was at leastone act of sexual intercourse in January while J.M. was away at Bingo. Based on the accused’s admission to J.M. in January that he didnot use a condom “the last time”, I am satisfied there were at least two incidents of sexual intercourse in January of 2019.

The evidenceestablishes beyond a reasonable doubt one incident of sexual intercourse in October. [85] Convictions will be formally entered when the accused next appears and following representations in respect of R. v. Kienapple (SCC), [1975] 1 S.C.R. 729. “original signed by:”____ Judge S. Hewitt-Michta