R. v. O.A., 2018 NLSC 50

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. O.A. , 2018 NLSC 50 Date : March 9, 2018 Docket : 201601G7576 Her Majesty The Queen v. O.A. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 26 and 28, 2018

Summary: The accused was acquitted of a single count of sexual assault on his niece. His testimony, when considered in the context of the evidence as a whole, was sufficient to raise a reasonable doubt as to his guilt. Appearances:

Paul J. Thistle Appearing on behalf of the Crown Jeffrey H. Slade Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. Kennedy, 2015NLCA 14; R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333; R. v. Higginbottom (2001), (ON CA), 150O.A.C. 79, 156 C.C.C. (3d) 178; R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v. W.(D.), (SCC), [1991]1 S.C.R. 742; R. v. Reid, 2014 NLTD(G) 22; R. v. H.(J.C.), 2011 NLCA 8; R. v. Vuradin, 2013 SCC 38 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] The accused is charged with a single count of sexual assault on his niece, contrary to

section 217 of the Criminal Code,R.S.C. 1985, c. C-46. The Indictment reads, as follows: ON OR BETWEEN the 17th day of May, A.D., 2011, and the 31st day of December, A.D., 2013, at or near [R.B.], Newfoundland andLabrador, did commit a sexual assault on C.J., contrary to

section 271 of the Criminal Code. [2] The accused’s birthday is 16 May 1993. As such, the Indictment runs from when he just turned 18, until when he was in his20’s. [3] Following the conclusion of the Crown’s case the accused applied for a directed motion of acquittal on the grounds that all ofthe incidents complained of by C.J. occurred prior to 17 May 2011, at a point of time when he was between 16 and 17 years of age. Assuch, if the incidents occurred at all (which the defence denies), the accused was a youth at the time. [4] The motion was denied with written reasons to be incorporated in this decision.

The defence then elected to call evidence. [5] Upon conclusion of the evidence and argument, I found the accused not guilty, with written reasons to follow. These arethose reasons. THE EVIDENCE: Generally Constable Green [6] Constable Catherine Green of the RCMP testified that on 22 May 2015 the mother of C.J. came to the RCMP detachment toreport an alleged sexual assault on her daughter. On 25 May 2015 she returned to the detachment with C.J. and a statement was taken. A further statement was taken on 28 June 2015 from C.J.’s younger sister. On 24 August 2015, the accused was placed under arrest athis home.

He was subsequently released on an Undertaking. C.J.’s Mother [7] C.J.’s mother testified that the family left western Canada on 1 October 2009, arriving in the Conception Bay area on 10October 2009. C.J. was then 11 years old. They stayed for one month in a camper trailer in her brother-in-law’s yard, while awaitingthe closing of their house purchase. At the time, the accused lived with his brother and his brother’s wife, in an in-law suite attached totheir home. [8] Soon after moving to the Conception Bay area, C.J. and the accused developed a close relationship.

There were family trips,camping, outings for firewood and the like. After he obtained his driver’s license, the accused would on occasion drive C.J. and heryounger sister in his own vehicle and his father’s truck. [9] C.J.’s mother testified that at no point did she observe any inappropriate interaction between the accused and C.J., nor did shehear the accused say anything inappropriate. She offered that if the accused was up to no good, it is unlikely that he would do anythingin front of her, in any event. She reported that by 2015, C.J. was experiencing a lot of emotional issues and was receiving counselling.

Itwas then that C.J. came to her and her husband with allegations of abuse. She then reported these to the police. C.J.’s Sister

[ 10 ] C.J.’s sister is three years her younger. She confirmed that C.J. and the accused were friends growing up and that she would spend time in their company. With one possible exception, to be discussed, she could not recall the accused ever acting inappropriately towards C.J. The Complainant: C.J. [ 11 ] C.J. is presently 19 years of age. She lived for 9 years in western Canada and in October 2009, at the age of 11, moved to the Conception Bay area. At the time the accused was 16 years of age. Upon arrival, C.J. lived with her parents and younger sister in a trailer.

The accused is C.J.’s uncle and at the time was living with his brother and his brother’s wife in an in-law suite attached to their home. According to C.J., she spent a lot of time at the house during this period and she and the accused became “best friends”. [ 12 ] C.J. testified that in addition to being friends, shortly after her arrival the accused began to abuse her sexually. [ 13 ] C.J. testified that she moved out of her parents’ house when she was 15 years old and quit school in grade 10. She acknowledged a drug addiction for which she was twice in rehabilitation.

She also alleges that another person, the accused’s father, sexually abused her during the same time period as the accused. She currently attends college in the Conception Bay area. [ 14 ] According to C.J., she did not go to the police sooner for fear of driving a rift in her family. She testified that when she got older she realized that any rift was not her doing, but that of the accused. The Accused’s Wife: J.L. [ 15 ] The accused’s wife, J.L. testified that she first met the accused at a religious convention in July 2011.

They started dating in August of that year, got engaged in June 2012 and were married that September. The two lived separate and apart until after they were married and presently live in the central area of the province. While they were courting, J.L. lived with her parents and the accused lived in the Conception Bay area. They had what is best described as a long distance relationship, with frequent trips to and from the central area of the province to see each other. [ 16 ] After they married, the accused and J.L. lived for a time in the Conception Bay area.

There were occasions when they took C.J. and her sister for ice cream after school. At no point did she see the accused act inappropriately toward C.J. and had no reason to suspect such conduct. The Accused [ 17 ] While not obliged to do so, the accused testified on his own behalf. [ 18 ] Speaking generally, the accused emphatically denied that he ever touched C.J. in a sexual way, exposed her to pornography, or made lewd or otherwise inappropriate remarks towards her.

Following her return from western Canada and up to the time he started dating J.L., the accused acknowledged that he and C.J. were “close friends”. They would see each other several times a week, after school and on weekends. The accused testified that he obtained his driver’s license when he was 16 years of age and thereafter would, on occasion, pick up both C.J. and her sister from school.

At times, they would go for ice cream and he would babysit while their parents worked. [ 19 ] The accused testified that after he started dating J.L. in August 2011, he spent less and less time with C.J., and by January 2012, he was seeing J.L. full time. Around March 2012, C.J. got angry with him for spending so little time with her. C.J. did attend his wedding in September 2012, however. [ 20 ] When asked at what point he and C.J. stopped being friends, his response was that they never stopped, as such, but gradually “drifted apart”.

He was now spending his time with J.L., and C.J. had started to get into trouble, drinking and doing drugs. (It may be recalled that C.J. acknowledged her addiction and that she had dropped out of school in grade 10.) The accused did not offer this evidence in a disparaging way, but rather as an explanation for how he and C.J. eventually lost contact. [ 21 ] He expressed confusion over why C.J. would now make accusations against him, saying, “I don’t know why she is doing this?” THe evidence: Specific allegations [ 22 ] In addition to kissing, which according to C.J. was commonplace, C.J. testified to a number of specific instances of sexual abuse.

The Crown concedes that most of these occurred before the timeframe set forth in the Indictment, when the accused was not yet 18 years old. However, as C.J. alleges a pattern of behavior by the accused that began before he turned 18 and continued thereafter, those allegations remain relevant to a consideration of the evidence as a whole. [ 23 ] In addition, there are two alleged occurrences, which I shall refer to as “The Swimming Hole” and “The Grandparents’ House”, which took place during the timeframe set forth on the Indictment.

It is for one or more of these occurrences, as well as the general allegation of kissing, that the Crown seeks a conviction for sexual assault. [ 24 ] Turning now to the specific allegations of abuse and the evidence called in relation to each. The Brother’s Basement [ 25 ] C.J. testified that when she was between 11 and 12 years old, she and the accused would watch the computer, or play video games in his brother’s basement.

The accused was between 16 and 17 years old at the time. [ 26 ] C.J. testified that there were at least one hundred occasions when the accused would try to “make out” with her by kissing her neck and lips. In addition, at times he would tell “disgusting jokes”. According to C.J., her younger sister was often present with them in the basement. However, following her confrontation with him at the swimming hole some years later, this behavior stopped.

[ 27 ] The accused acknowledged that in the early days of their friendship, in particular, he and C.J. would watch the computer and play video games in his brother’s basement. He agreed that there were times when C.J. would sit on his lap, but denied doing anything inappropriate. He also agreed that w hen in his brother’s basement C.J.’s sister would often be there with them, playing video games.

His brother’s wife was usually home, but generally stayed upstairs, except when she came down to give them cookies. [ 28 ] In response to C.J.’s testimony that he had kissed her on the lips and neck “hundreds of times”, his response was clear; “It happened zero times”. [ 29 ] C.J.’s sister acknowledged that she spent time together with C.J. and the accused, but could not recall seeing any inappropriate behaviour in the basement, or hearing the accused say anything of a sexual nature.

The Lighthouse Hike [ 30 ] C.J. testified to an alleged incident while hiking with the accused, during the summer after her family moved back from western Canada. She was then between 11 and 12 years old and the accused was between age 16 and 17. [ 31 ] She testified that the two hiked to a lighthouse on the Baie Verte Peninsula and while on route came across a beaver dam and makeshift pile of sticks, like a little hut.

According to C.J. she sat facing the accused while he undid her bra, lifted her shirt and kissed her breasts. [ 32 ] The accused could recall a time when he and C.J. hiked to the lighthouse on the Baie Verte Peninsula. The lighthouse was perched on a cliff, and according to the accused, there was no beaver dam or wooden structure on the way to it. He recalled that the two had a “great time” and had “no idea” what C.J. was talking about when she referred to a sexual encounter.

The Truck [ 33 ] C.J. related a further incident when she was around age 12, while in her father’s truck during a drive to her grandparents’ house on the Baie Verte Peninsula. She thought it was moose hunting season. She testified that while in the back seat of the truck the accused put his hand down her pants and proceeded to rub her vagina. In her memory, she sat in the back seat between the accused and an uncle, who had previously had a stroke. The incident occurred sometime after they entered the Baie Verte Highway and continued until they reached her grandparents’ house.

It was dark and there was a blanket covering her lap. Words were not spoken and the incident lasted 10-15 minutes. [ 34 ] The accused testified that there was only one occasion when he and others, including C.J., travelled in C.J.’s father’s truck across the island. As to this trip, his memory was quite specific. He, two of his brothers (one of whom was C.J.’s father) and his brother’s wife left the Conception Bay area to go moose hunting on the west coast. At this time, C.J. and her sister were already at his parents’ house on the Baie Verte Peninsula.

While on route, the hunting party picked up another brother, who previously had a stroke, at the Baie Verte Junction. They drove to Stephenville and stayed at another brother’s home. [ 35 ] According to the accused, on the way back they dropped his brother (who had the stroke), at Springdale Junction and picked up C.J. and her sister and drove to the Conception Bay area. It was daylight. While he admitted sitting next to C.J. on the return, he emphatically denied putting his hand down her pants.

He candidly testified that he could not recall if there was a blanket in the back seat. [ 36 ] There are similarities and differences between the testimony of C.J. and the accused relating to the circumstances of this trip. Both agree that it somehow involved moose hunting, that they were in C.J.’s father’s truck, and for a period both sat in the back seat next to each other.

They differed as to when C.J. was in the truck, the location, the time of day, and whether the accused’s brother who had a stroke, was in the car next to C.J. [ 37 ] While the accused did not testify as to when this trip occurred, the Crown concedes that based on the evidence of C.J., the accused was under 18 years of age at the time. The Grandparents’ Car [ 38 ] C. J. alleged a second incident similar to that in the truck, this time in her grandparents’ car when she was around 12 years old.

The accused was then 17. [ 39 ] The accused did not address this allegation specifically, except to reiterate that he never touched C.J. in a sexual way. The Freezer [ 40 ] C.J. related an incident which allegedly occurred on the chest freezer in the basement of her aunt and uncle’s house, when she could have been 12 years old. According to C.J. she and the accused went downstairs to get something, when he sat her up on the freezer and began rubbing his penis (which was still inside his clothes) up against her, while at the same time kissing her on the lips and neck.

No words were spoken and the incident ended when her aunt called the two upstairs for supper. C.J. testified that she could see a wet spot on the accused’s pants, leading her to conclude that he had ejaculated in his shorts. The Crown acknowledges that based on C.J.’s testimony the accused would have been a youth at the time. [ 41 ] The accused denied having any form of encounter with C.J. on a freezer, or otherwise. The Accused’s Car [ 42 ] C.J.’s younger sister testified that when she was as young as 9 years old she witnessed the accused place his hand on C.J.’s inner thigh while driving his car.

C.J. was then in the front passenger seat and she sat in the middle of the rear seat. She explained that

she could see what was happening through a gap in the front seat. She could not recall where the threesome were going, or how many times this incident occurred, although she thought it was more than once. She thought C.J. moved the accused’s hand away, but could not recall if anything was said at the time. She never discussed this alleged incident with her sister afterwards.

She further testified that this was the only circumstance where she could recall seeing the accused touch her sister inappropriately. [ 43 ] The accused repeated his denial that he had ever touched C.J. in a sexual way. [ 44 ] The complainant, C.J., did not testify to this specific incident and, in any event, the Crown agrees that the accused would have been 17 years old at the time. The Swimming Hole [ 45 ] C.J. related an incident which allegedly occurred while she and her sister went swimming with the accused. The three hiked up a brook to a local swimming hole.

The accused swam in his underwear, while C.J. and her sister swam in their bathing suits. After about 45 minutes the accused, who was sitting on a submerged rock, motioned for C.J. to sit on his lap. When she did so, she felt that he had an erection in his shorts. According to C.J., she immediately got off his lap and got angry with the accused, saying that he was a “bad uncle”. According to C.J., the accused brushed the incident off and nothing further happened. [ 46 ] According to C.J. this incident happened before the incident at her grandparents’ house on the Baie Verte Peninsula (see, infra ).

She could not be sure, but could have been as young as 12 years old at the time. If 12, the accused would have been 17 years old. [ 47 ] C.J.’s sister could recall one occasion when she went swimming with C.J. and the accused at a swimming hole. However, she could not recall anything inappropriate occurring between the accused and C.J., nor did she recall a confrontation between C.J. and the accused.

Apart from inadvertently getting a glimpse of the accused while he changed under his towel, the time at the swimming hole was for her, unremarkable. [ 48 ] The accused could recall one occasion, sometime in August, or September, when he went swimming with C.J. and her sister at a swimming hole known as “the Gorge”. While C.J. said she could have been 12, he offered that he was dating J.L. at the time and was therefore 18 years old. In the accused’s memory, the three had a “great time” swimming and jumping into the pool.

He may have thrown C.J. into the pool, as the three swam and larked about, but he flatly denied having C.J. sit on his lap, or that he had an erection. He further denied that there was any kind of confrontation with C.J. about him being a “bad uncle”, or otherwise. He did recall a confrontation in March 2012, however, when C.J. complained about the amount of time he was spending with J.L. [ 49 ] This was the only time he could recall being at a swimming hole with both C.J. and her younger sister. However, he volunteered that there were times when he, C.J. and others visited swimming holes elsewhere.

The Grandparents’ House [ 50 ] C.J. testified to an incident in the bedroom of her grandparents’ house on the Baie Verte Peninsula. C.J. believed that at the time the accused was dating J.L. If accurate, the accused would have been over 18 years of age, placing this incident within the timeframe set forth in the Indictment. Based on the Crown’s evidence there was at least one allegation of sexual assault, which if accepted by a reasonably instructed jury, could result in a conviction.

It was for this reason that the defence’s motion for a directed verdict was denied. [ 51 ] According to C.J. there were four of them lying on the bed in her grandparents’ bedroom, in a semi-upright position, watching television. The four, moving from left to right while facing the headboard, were the accused’s girlfriend, J.L.; the accused; C.J. and her sister. C.J. testified that at one point the accused started to slide his hand down the front of her pants under the area of her belt. At the time she was partially covered by a blanket.

She felt the advance was sexual so she placed her hand on his, stopping him from going further than the belt area. He complied and the incident came to an end. No words were spoken. [ 52 ] C.J. testified that this was the last time that the accused had approached her sexually. By now he had a girlfriend and in the days ahead the two saw less and less of each other.

She would on occasion see him at family gatherings, but all contact ceased after she went to the police. [ 53 ] C.J.’s sister testified that while she could recall visiting her grandparents on the Baie Verte Peninsula, she did not recall anything inappropriate happening there. [ 54 ] The accused’s wife, J.L., testified that she first met C.J. after she started dating the accused and thereafter would see her at family functions. She could recall one occasion when there was a gathering, like a “family reunion”, at the accused’s parents’ house on the Baie Verte Peninsula, which was attended by C.J. and others.

While she could recall a few other visits to the parents, this was the only occasion when C.J. was also present. [ 55 ] J.L. testified that there was nothing remarkable about the visit, and it was not prompted by a special occasion such as a wedding, or birthday. Rather, the family sat around the living room, talking and playing cards and games.

While she candidly admitted that she could not recall every detail of the occasion, she was sure that there was no time when she watched a movie in the parents’ bedroom, or for that matter was alone with just the accused, C.J. and her sister. [ 56 ] The accused testified that he recalled a large family gathering at his parents’ home on the Baie Verte Peninsula, which included J.L., C.J. and her sister. However, he and J.L. were married at the time, not dating as C.J. testified. [ 57 ] The accused testified that at no point did he go into his parents’ bedroom to watch the television.

In fact, he could only recall being in the bedroom once, and that was with his wife to look at an old photo album. He did not discount the possibility that others, including C.J., may have done so on occasion, although he could not recall a specific instance. He observed that his parents only have channel 3 (CBC) on their bedroom TV, and it is not equipped with a media player. The other TV in the home, the one hooked to

satellite, is in the living room. When confronted with the allegation that he placed his hand down C.J.’s pants while lying on the bedwith C.J., her sister and J.L., his response was simple: “It never happened, sir.” analysis Legal Principles [58] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39, Cory, J. discussed the requisite standard in acriminal trial of proof beyond a reasonable doubt. He stated, inter alia: 39. … Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must givethe benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond areasonable doubt. [59] In R. v. Starr, 2000 SCC 40, the Court observed that the level of proof required from the Crown lies “much closer to absolutecertainty than to a balance of probabilities”. [60] The correct application of the reasonable doubt standard is to consider the cumulative effect of all the evidence (see R. v.Kennedy, 2015 NLCA 14). [61] Sexual assault is a crime of general intent.

The test is objective and all the circumstances surrounding the accused’s conductare relevant to whether the conduct was of a sexual nature and violated C.J.’s sexual integrity (see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333). [62] To determine if a sexual assault has occurred the court should consider a number of factors including the part of the bodytouched, the nature of the contact, the situation in which the contact occurred, any words or gestures accompanying the conduct, theaccused’s intent or purpose and all the surrounding circumstances. Sexual gratification is not required (R. v.

Higginbottom (2001), (ON CA), 150 O.A.C. 79, 156 C.C.C. (3d) 178. [63] The complainant is now 19 years old but testified to events that allegedly occurred when she was a child, as young as 11. Iwould observe, however, that as it relates to those events when the accused was an adult, C.J. was then 13 – 14 years old. Regardless,owing to her young age, some allowance must be made for any inconsistencies in her testimony and/or her inability to recall everydetail. [64] Here I am mindful of the Supreme Court of Canada’s caution with respect to the testimony of children. In R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122, (at para. 26): 26. As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that theevidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protectingthe liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for averdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of childrennot from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths andweaknesses which characterize the evidence offered in the particular case. [65] In the circumstances of this case, while not obliged to do so, the accused testified in his own defence. In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, Cory J. (writing for the majority) considered how the jury should be charged on the principle ofreasonable doubt, and the procedure in directing a jury where the accused has testified.

He stated (at paras. 10 - 11): 10. In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. 11. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. … [66] Goodridge, J. in R. v. Reid, 2014 NLTD(G) 22, referred to R. v. H.(J.C.), 2011 NLCA 8, in which Rowe, J.A. indicated that inapplying this three-step formula of Cory, J. from R. v.

W.(D.), a trial judge should first consider the evidence offered by the Crown (at

paragraph 13): 13. A trial judge should generally first consider the evidence offered by the Crown in support of the charges, especially that of the complainant. That sets out the case that the accused has to meet. Only if there is sufficient strength in that evidence is it necessary to consider the evidence (if any) led by the accused. That sequence accords with the burden of proof resting with the Crown. Application of the Legal Principles to the Evidence [ 67 ] Overall, I was impressed by the demeanour of the complainant, C.J.

She testified with confidence as to her relationship with the accused, as she perceived it, from roughly the age of 11. There were no significant internal inconsistencies in her evidence. [ 68 ] Following the Crown’s case, I found it necessary to consider the evidence offered by the accused, recognizing of course that the burden of proof rests with the Crown throughout. [ 69 ] Having done so, it must also be said that I found the accused to be a most credible and forthright witness. He made no attempt to minimize his contact with C.J. and described the two as “close friends”.

Indeed, if anything, the accused related a greater level of involvement between the two than did C.J. herself. He offered that he picked up the girls from school, took them for ice cream, and looked after them while their parents worked. He, C.J. and others went swimming at places other than the swimming hole and contrary to C.J.’s evidence, the accused freely admitted that when they went swimming at the swimming hole he was 18 years old. When watching the computer and playing games in his brother’s basement he agreed that there were times when C.J. would have sat on his lap.

She was 11 - 12 years old at the time, he was 16 years old and they were good friends. While his brother’s wife was home, he freely acknowledged that she was upstairs, except when she came down with cookies. [ 70 ] The question might fairly be asked, if the complainant, C.J. was credible, why was the accused not convicted? The answer lies in the onus of proof. The test for conviction is not a contest between who to believe, the accused or the complainant, but whether based on the evidence as a whole, the Crown has proven the elements of the offence beyond a reasonable doubt ( see R. v.

Vuradin , 2013 SCC 38 ). [ 71 ] There are three allegations, either of which if proven beyond a reasonable doubt, would ground a conviction for sexual assault; the general allegation of kissing, the swimming hole and the grandparents’ house. The remaining allegations relate to a period when the accused was 16 – 17 years old.

I have considered each of these allegations individually, as well as in the context of the evidence as a whole, including evidence relating to the relationship between C.J. and the accused and his alleged conduct as a youth. [ 72 ] In the application of W.(D.), the direct route to an acquittal, as it relates to these three allegations, would rest in my acceptance of the truthfulness of the accused’s testimony.

However, while the accused was a most credible witness, I am not prepared to go quite that far. [ 73 ] That said, as it relates to those allegations after the accused turned 18, I am satisfied that the evidence of the accused, when considered in the context of the evidence as a whole, is such as to raise a reasonable doubt.

I say this fully cognizant of the allegation by C.J., that what happened after the accused turned 18 represents the continuation of a pattern of conduct which started when the accused was a youth. [ 74 ] As it relates to the swimming hole incident, based largely on the testimony of the accused, I am left with a reasonable doubt as to whether there was an encounter as C.J. recalled it. He made no attempt to minimize or trivialize his contact with C.J. and freely admitted that he and the girls were larking and playing in the pool. On a hot summer’s day that is what young people do.

C.J., her sister and the accused all recalled being at the swimming hole, although it was the accused, not C.J. who said he was 18 at the time. Both the accused and C.J.’s sister recall that other than swimming and generally having a good time, the occasion was uneventful. While admittedly C.J.’s sister would not be expected to know if the accused had an erection under the water, she could recall nothing of a confrontation between C.J. and the accused. There were only three of them at the swimming hole and such a confrontation, if it occurred, is something that might have stood out.

The point is not insignificant, as according to C.J. it was the alleged lap incident that precipitated the confrontation in the first place. [ 75 ] While according to the accused, C.J. was able to paint an accurate image of his parents’ bedroom on the Baie Verte Peninsula, in this case, the circumstances of the alleged assault are relevant to the question of whether it happened as claimed. According to C.J. there were four of them lying on the parents’ bed watching a movie, when the accused made his move.

This circumstance alone raises the question of how the accused planned to remain undetected had C.J. allowed him to carry out his plan as she perceived it. Further, the accused’s wife, J.L., while recalling a family gathering which include C.J. and her sister, testified that at no point was she in the accused’s parents’ bedroom, to watch television, or otherwise.

Those present were content with conversation in the living room and cards. [ 76 ] In addition to denying that he ever assaulted C.J., the accused testified that the TV in his parents’ bedroom is a small, older model with “rabbit ears” and a single TV channel. There is no media player. Rather, the television with satellite is in the living room. Further, that he never went into his parents’ bedroom, except one time after he got married to look for some old photographs.

He did not dismiss the possibility that C.J. and others may have gone there on occasion. [ 77 ] The combined testimony of the accused, J.L. and to a lesser degree C.J.’s sister, is such as to leave me with a reasonable doubt regarding this alleged incident. [ 78 ] C.J. testified that the kissing stopped after her confrontation with the accused at the swimming hole. While C.J. thought she could have been as young as 12 at the time (when the accused was 17), accepting the accused’s evidence that it was in August month, and he was then dating J.L., he would have been just 18 at the time.

I am unable to decide based on C.J.’s general allegation that he kissed her hundreds of times, particularly in the basement of the accused’s brother’s house when she was 11-12 years old, that he did so some years later after he turned 18. Coupled with the accused’s denial that he ever kissed C.J. other than possibly on the cheek when she was younger, as a greeting, is sufficient to raise a reasonable doubt.

[ 79 ] For the foregoing reasons the accused is entitled to an acquittal. _____________________________ Donald H. Burrage Justice