R. v. G.P., 2018 NLSC 52

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. G.P. , 2018 NLSC 52 Date : March 09, 2018 Docket : 201708G0044 Her Majesty The Queen v. G.P. Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published, broadcasted, or transmitted in any manner. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: March 6 and 7, 2018 Appearances: Rochelle O.

Palmer Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R v. Snow , [1996] B.C.W.L.D. 2789 , [1996] B.C.J. No. 3107 ; R. v. Starr , 2000 SCC 40 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] G.P. was charged with sexual assault under

section 271 of the Criminal Code , R.S.C. 1985, c. C-46. At the conclusion of the evidence at trial held on March 7, 2018, both the Crown and defence asked the Court to enter an acquittal on the charge. The Court agreed and entered an acquittal with reasons to follow. These are my reasons for acquitting the accused of the offence. THE EVIDENCE [ 2 ] There were two witnesses called by the Crown. The first witness was Constable Kelsey Ford from the Sheshashit detachment of the Royal Newfoundland Canadian Mounted Police (“RCMP”) in Labrador.

He testified that he was “on call” in the early morning hours of April 17, 2016. It was about 5:30 a.m. when he received a call at home, from the detachment advising that P.R. had called the police to make a complaint that she had been assaulted while walking home. She alleged that G.P. grabbed her hair from behind while she was walking on a trail en route to her house. [ 3 ] Constable Ford called P.R. upon receiving the call from the detachment. After speaking with her, he decided to wait to conduct an interview, as he thought P.R. was impaired.

He testified she was also “safe” as she was home, and so he intended to interview her later on. He did attend upon P.R.’s residence early that afternoon, and took an audio statement from her in the police vehicle. There was a second officer present. Although P.R. is Innu, her statement was taken in English. [ 4 ] In this interview, P.R. advised that her boyfriend had spoken with G.P. after the alleged assault.

Because of this, upon concluding the interview with her, Constable Ford then interviewed her boyfriend, who was also present at P.R.’s home. [ 5 ] Constable Ford also seized the pants that P.R. advised she was wearing at the time. Constable Ford testified that P.R. has alleged that G.P. tried to pull off her pants in the struggle. A photo of these pants was entered in evidence. [ 6 ] Constable Ford testified that when the officers attended upon what they understood to be G.P.’s residence later that day, he could not be located. At that time, a dog approached them at the house carrying a black Nike shoe.

Constable Ford did not know who owned the dog, or if it had come from the house. The residence was located near the trail where the alleged assault occurred. [ 7 ] The officer took the shoe from the dog. P.R. later identified that this shoe was one of her shoes that she had been wearing at the time of the alleged assault. A photo of that shoe was also entered into evidence. Constable Ford tried to locate the other shoe, but it was not found. [ 8 ] Constable Ford testified that G.P. was not found for several days.

On April 27, 2016, the officers learned where he might be residing, and a Feeney Warrant was obtained. G.P. was located at the residence hiding in a bedroom room behind a mattress. He was otherwise arrested without incident. Constable Ford described G.P. as sweating quite a bit, so he gave him a drink of water at the residence. [ 9 ] Constable Ford testified that he examined the area on the trail where P.R. said the attack occurred, but did not find anything out of the ordinary. When asked about whether the snow had been disturbed, he said it did not appear to be disturbed.

He said it was April, however, and the snow had a “crust”. It was not fresh snow. [ 10 ] On cross-examination, Constable Ford was also asked about a person P.R. identified as yelling out from a distance, during the incident. Constable Ford confirmed that P.R. had identified a person named “M.” as being present nearby. However, upon follow up, Constable Ford learned who M. was, but that the person identified by P.R. was in custody at the time of the incident. [ 11 ] P.R. next testified. She stated she has lived in Sheshashit her whole life.

G.P. is her first cousin, and while she does not socialize with him or spend time with him on a regular basis, she has known him her whole life. P.R. testified that on the night in question she had been drinking at a friend’s house in Sheshashit, Labrador. She testified she had about six beer during the evening. She testified at about 1:30 a.m. she left to go home. P.R. said she was not “too drunk” and she remembered what happened. It was a 15 - 20 minute walk. On the way she first stopped at her aunt’s house, but there was no answer.

P.R. then intended to stop at her uncle’s house but before she could get to the door, she was grabbed from behind. P.R. testified her head was down, and someone grabbed her hair from behind, pulled her to the ground, and tried to “haul” off her pants with both hands. There was a struggle and she started to try and kick him in “his privates”. She stated that when she kicked he grabbed her shoes and pulled off her shoes. She said he called her a “bitch” and said that “he would beat up her boyfriend”. [ 12 ] P.R. testified that while on her back she saw that the person was G.P.

She said she knew it was him, because she had known him her whole life.

[ 13 ] She testified that during the struggle, someone was calling from a distance. Her evidence was confusing on this point as to what exactly the person said. This may have been a problem with the

interpretation. During her testimony, while P.R. spoke mostly in English, she also testified in her native tongue, Innu. Her responses in Innu were then interpreted back to English, but there seemed to be confusion at times as to what she was saying in response to the question by counsel. [ 14 ] In one response, it appeared that P.R. said this person was calling out saying “leave him alone” but also “leave her alone” and to “bring her in the house” or “bring him in the house”.

What was clear from her testimony, was that someone was yelling from a distance. [ 15 ] P.R. testified that she could not see who the person was, but recognized the voice as being, G.P.’s cousin “M.”. P.R. testified she was one hundred percent sure that it was M. who was calling out, because she recognized his voice. [ 16 ] P.R. testified that she managed to get away, and ran home with no shoes. It was about a five minute run to her house. She said the lighting was dark where the incident occurred on the trail, but she could see that her attacker was G.P. from the lights from surrounding houses, and the moon.

P.R. identified G.P. in the courtroom as being the person who attacked her. [ 17 ] P.R. testified she called the police after she arrived home and told her boyfriend what happened. [ 18 ] P.R. said that during the incident, she scratched G.P. on the left part of his face. She said she saw him walking the next day, while she drove by in a car, and could see the scratch. P.R. testified that she did not consent to what happened, and did not want G.P. to take off her pants. [ 19 ] Under cross-examination, it was put to P.R. that she had told the police she had had two dozen beer.

P.R. explained that that amount was over a much longer period, and the six beers referred to in her testimony was what she had drunk that evening. When asked whether or not her memory could be affected by how much she had had to drink, P.R. disagreed and said, she was not drunk, because she remembered what happened. P.R. stated, “I remember the whole thing”. [ 20 ] It was next put to P.R. that she was mistaken that it was M. she heard yelling from a distance, given he was in custody at that time. P.R. agreed that she had to be wrong about her identification of M. as being that person.

She also agreed that (until this was pointed out to her, at least), she had said she was one hundred percent sure it was M. [ 21 ] When questioned, could she also be mistaken about whether the person who grabbed her was G.P., P.R. said, “No, it is not possible”. [ 22 ] P. R. was then asked about whether or not she remembered speaking to the Crown and a victim services worker prior to the preliminary inquiry. P.R. testified that she remembered that meeting. It was suggested to P.R. that at that meeting, she had said she did not see who it was that grabbed her on the trail that night.

P.R. agreed she could have said that she did not see who the person was. [ 23 ] When asked in re-direct how it was that she would have said at that meeting that she did not see who grabbed her, while she testified at trial that she did see her attacker, and identified him as G.P., P.R. explained that when she was at the meeting before the preliminary inquiry, she was not “remembering everything” at that time. [ 24 ] The defence called no witnesses. THE ISSUE [ 25 ] All elements of a criminal offence must be proven beyond a reasonable doubt.

In this case, the principle element in dispute was the identity of the perpetrator of the attack. The only evidence the identity of the perpetrator of the alleged attack on P.R. came from the testimony of P.R. ASSESSING THE TESTIMONY of P.R. [ 26 ] In this case, whether or not the offence has been established turns on the assessment of the evidence of P.R. All the evidence must be, and has been considered, but most of the evidence in support of the establishment of the offence comes from her testimony. P.R. was a credible but unreliable witness.

P.R. was credible in that she tried to answer all questions, and was candid when she was confronted with contradictions or inconsistencies. [ 27 ] There were mainly three alleged inconsistencies and contradictions in her evidence that need to be addressed in assessing how much weight, if any, her evidence can be given: (

i) her level of intoxication; (ii) her mistaken identification of M. as the person who was yelling from a distance, and (iii) her previous inconsistent statement that she did not see her attacker. P.R.’s Level of Intoxication [ 28 ] There was evidence that P.R. gave different statements about how much she had to drink on the evening in question.

Her testimony that she had six beer that evening was inconsistent with her apparent statement to Constable Ford on the phone, that she had had two dozen beer (I say “apparent” because it was never established through Constable Ford, or otherwise, what P.R. had said, if anything, about how much alcohol P.R. had to drink.

When defence counsel put to P.R. that this is what she had told the officer, there was no objection by the Crown, and P.R. did not dispute that she had said this.) [ 29 ] When asked to explain this difference in re-direct examination, P.R. did not deny that she had drunk two dozen beer, but that amount had been consumed over a much longer period than the evening. She explained that when she testified at trial that she had six beer, she was referring to the evening only. [ 30 ] I am satisfied this explains the difference between her testimony, and what she may have told Constable Ford. Standing alone,

this inconsistency does not undermine her credibility. Her explanation is plausible when considered with her other testimony. P.R. didnot dispute in any way that she had been drinking. [31] I also find no meaningful inconsistency with her evidence and Constable Ford’s evidence with regards as to her level ofintoxication. While Constable Ford agreed under cross-examination that he waited before interviewing P.R. because he thought she wasimpaired, this does not necessarily contradict P.R’s evidence about her level of intoxication.

The fact that Constable Ford may havedecided to wait to interview P.R. does not mean she was in fact too drunk to be interviewed. Constable Ford spoke only by telephone toP.R. initially, and did not see her.

There was no evidence about what he actually observed of her at that time, or the details of the call. [32] Given the lack of detail on this point, I am not prepared to accept that Constable’s Ford’s evidence of his decision to wait tointerview P.R. is conclusive that she was in fact too drunk to be interviewed, or is evidence that contradicts P.R’s evidence that she wasnot “too drunk” to remember what happened. It is not at all clear to me that either witness is saying something different about her levelof intoxication.

Her perception of what is “too drunk” and Constable Ford’s perception of impairment, may be simply the result ofindividual

interpretations of the words “drunk” and or “impaired”. [33] The tenor of both witnesses’ testimony is that P.R. had been drinking, and was under the influence of alcohol at the time of theincident, and by implication, when she spoke to Constable Ford by telephone. While I find no meaningful inconsistency, the fact thatP.R. had been drinking, does cause me some concern with respect to the reliability of her testimony on the issue of identification.

P.R.’s Mistaken Identification of “M.” [34] There is no doubt, P.R.’s evidence that G.P.’s cousin, “M.” observed what happened and was yelling from a distance, was inerror. P.R. testified she was “one hundred percent” certain it was G.P.’s cousin, “M.”, who was yelling from a distance. Constable Fordtestified that when he went to interview this person, he was in custody. Given this, this person identified as “M.” could not have been theperson yelling from a distance. [35] While I am satisfied to accept P.R.’s evidence that there was someone yelling, it was not who she said it was.

Either P.R.recognized the voice but was wrong as to the name of the person, or mistakenly identified “M.” as this person. Either way, her evidenceis contradicted by the fact of “M.” being in custody at the time. [36] P.R. was not lying or trying to be untruthful about who she thought she heard yelling. When confronted with her error, sheagreed she was wrong. In my view, she was simply genuinely mistaken as to who the person was that was calling from a distance. [37] P.R.’s opportunity to identify this person was limited.

She did not see who was yelling, her viewpoint was from a distance, itwas dark, and she was also in the middle of a traumatic event, trying to extricate herself from whoever had attacked her. Notwithstanding her “one hundred percent” certainty at the time she made the identification, it was a mistake that could reasonably bemade by anyone in that situation. [38] While I accept that this mistaken identity was an honest mistake, it does affect my overall assessment as to whether or not theidentity of the perpetrator has been established.

This mistaken identification undermines the reliability of P.R.’s evidence in identifyingG.P., because of her “certainty” in her mistaken identification of who was the person whom she heard yelling. She testified with thesame certainty in identifying G.P. P.R.’s Previous Inconsistent Statement That She Did Not See Her Attacker [39] Under cross-examination, P.R. agreed that on a previous occasion she told the Crown attorney that she did not see who attackedher.

This previous statement that she did not know who attacked her cannot be reconciled with her trial testimony that she did see thather attacker was G.P. and was sure it was G.P. Her explanation that she was “not remembering” at the time of the meeting, does notexplain why she did not remember then, or why she does now know that it was G.P. [40] In my view, this is a significant inconsistency, and as one that is unexplained, directly undermines the reliability of heridentification of the perpetrator of the offence, as G.P.

CONCLUSIONS ON THE EVIDENCE [41] I am satisfied beyond a reasonable doubt that P.R. was grabbed from behind and pulled to the ground; as she described. I amalso satisfied that this conduct, accompanied by the effort to pull off her pants, is sufficient to establish that the assault was a sexualassault: that is, when objectively viewed, the assaultive conduct was in circumstances of a sexual nature (R v. Snow, [1996] B.C.W.L.D.2789, [1996] B.C.J. No. 3107 at paras, 10 - 11 citing R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333 and R v.

Chase, (SCC), [1987] 2 S.C.R. 293). [42] Importantly, P.R.’s description of what happened was not contradicted in cross-examination. Also, P.R.’s description of hershoes having been removed when she tried to kick her attacker, and her having to run home without her shoes, is a peculiar detail. Thatshe lost her shoes during the encounter is also supported by the evidence of Constable Ford that he found her shoe the next morning in anarea near the trail where the incident occurred. [43] I found this evidence compelling and satisfies me of P.R.’s overall description of the attack.

I am satisfied that that attackoccurred. [44] However, I am not satisfied that the perpetrator was G.P. P.R’s. mistaken but “certain” evidence of the identity of the person,

who was yelling, and her inconsistency that she on a previous occasion said she did not see her attacker, causes me concern as to who committed this offence. [ 45 ] When P.R.’s honest but clear mistake in the identification of “M.” as being the person who was yelling from the distance is taken with her previous inconsistent statement that she did not see who attacked her, and considering the circumstances of her ability to observe her attacker: it was dark, she had been drinking, and she had been grabbed from behind, her testimony that she saw that it was G.

P. who attacked her, is not reliable enough to be satisfied beyond a reasonable doubt, without more, that the attacker was G.P. [ 46 ] This is so notwithstanding that I accept that she knows G. P. and could likely recognize him. [ 47 ] Unfortunately, there was no other evidence that supported her identification of him as the perpetrator. For example, it was obvious that someone had identified G.P. as the person responsible, because Constable Ford testified that he formed reasonable grounds to believe the offence occurred after they had conducted their interviews of P.R. and her boyfriend.

It was then that he went in search of G.P. [ 48 ] However, there was no evidence called as to what identification was made at that time. A court cannot speculate on what may have happened. The court can only rely on the evidence that is before it. [ 49 ] Also, although P.R. testified that she scratched G.P., there was no evidence one way or the other from Constable Ford whether he made any such observations of G.P.’s face at the time he was arrested. [ 50 ] The only evidence before the court that identifies G. P. as the perpetrator is P.R.’s testimony that she saw that it was him and knew it was him.

In order to find that G. P. was the perpetrator, I would have to accept her identification, and for the reasons above, P.R.’s evidence on the identification of G.P. is not reliable enough to be satisfied beyond a reasonable doubt. [ 51 ] Proof beyond a reasonable doubt is a very high standard; closer to absolute certainty than the balance of probabilities ( R. v. Starr , 2000 SCC 40 ). The evidence of identity in this case, is insufficient to meet the standard of proof beyond a reasonable doubt.

The most that could be said, after a review of all the evidence presented at this trial, is that the perpetrator “might” have been G.P. “Might have been” is far below “beyond a reasonable doubt”. [ 52 ] I find the accused not guilty. I thank both counsel, in particular Ms Palmer as the crown, for appropriately fulfilling their roles in this matter. _____________________________ Frances J. Knickle Justice