R. v. Pijogge, 2018 NLSC 151

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pijogge , 2018 NLSC 151 Date : July 11, 2018 Docket : 201708G0107 Her Majesty The Queen v. JULIUS Pijogge 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Code , information that may identify the person described in this judgment as the Complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the Accused is discharged after the preliminary hearing, or, if the Accused is committed to stand trial, until the end of the trial. Before: Justice Frances J. Knickle Oral Reasons for Judgment (Edited) Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: May 11, 2018 Appearances: Stephen A. Anstey Appearing on behalf of Her Majesty The

Queen Conor J. Mullin 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. W. (D.), (SCC), [1991] 1 S.C.R. 742 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] The Accused, Julius Pijogge is charged with having committed a sexual assault against C.S., contrary to Section 271 (1)(

a) ofthe Criminal Code. He is also charged with breaching his probation order. This is the decision on verdict. [2] The Complainant alleged that the Accused tried to sexually assault her while the two were drinking together one evening.Although the Accused admitted he touched the Complainant, he denied any sexual assault. Both witnesses had difficulties with theirevidence. The Accused’s evidence was not believed in its entirety, and there were significant inconsistencies in the Complainant’sevidence. This left the Court with a reasonable doubt as to what exactly happened.

The Court could not be satisfied beyond a reasonabledoubt to find the Accused guilty of either assault or sexual assault. The Accused was found not guilty on all charges. THE EVIDENCE [3] C.S. testified that she knew the Accused, as they grew up in the same community. She was 24 at the time of trial. Shetestified that the alleged assault happened sometime in January of last year. She was uncertain of the exact date. She met the Accused“walking on the road”, and he asked her if she wanted to go drinking. He was not with anyone at the time. It was in the daytime and shehad just finished checking her mailbox.

She stated she said yes, and they went together to her apartment. It was just she and theAccused. [4] She was not sure, but thought she had 3 or 4 beers. She stated she had not been drinking prior to drinking with the Accused. She stated she could tell the Accused had been drinking prior to meeting up with her. She stated he was “slurring, I guess.” [5] They were together drinking for about an hour, when the Accused started to “get right touchy”. She stated they were seatedat the table in the kitchen. She was on the side and he was in the middle.

She stated that he put the chair closer and closer to her, and puthis hand on her lap. [6] She stated that she tried to tell him to leave but he would not listen. She stated she told him she was waiting for herboyfriend, who was in jail at the time. She stated she tried to go out the door, and when she did, he forced her against the kitchencounter, turned her around so that her back was to him, and pulled her hands behind her back. She stated she could feel him trying to pullher pants down. She did not know if he had an erection. [7] She stated she pushed him away by backing into him using her upper body.

They both fell to the floor. He tried to “get backon top of her.” She said she managed to get up, ran to the back door, but he tried to block the door. She stated she had to scream at himto get out of the house. [8] She said the back door was only a few steps away from the kitchen counter. She was yelling for him to get out. She stated heeventually left, she did not know where he went. She stated she went to the police the next day.

She stated that she told the Accused“Don’t you ever touch me” and when he left that “You’re f---ing gross.” [9] She stated she did not want the Accused to touch her sexually, and she did nothing to indicate to him that she was interested insuch contact. [10] She did not recall what clothes either she or the Accused were wearing. She stated she had not consumed any other substances. She stated he was drunk, but she had “a little bit of a tingle.” [11] On cross-examination, C.S. stated that when she saw the Accused initially, it was probably one or two o’clock in the afternoon.

She stated he invited her to go drinking. When it was suggested that they did not immediately go to her apartment, she stated that first she went to her mother’s apartment. She stated that she visited her mother probably every other afternoon, and that she was there for 3 or 4 hours before she went home. She was not sure what she did, but maybe watched a movie. She stated she did not have anything to drink at her mother’s. She stated she left her mother’s after 6:00 p.m., and then went to her apartment. [ 12 ] She stated that the Accused was not with her, but came over to her house afterwards.

She did not know how he knew what time to come over. She stated he had been drinking “Molson” beer and thought he had 12-16 beer. She thought he came over before 9:00 p.m. When he arrived, he was already intoxicated. [ 13 ] Counsel pointed out to C.S. that at the preliminary inquiry she testified that the Accused was with her at her mother’s, that she had two drinks there, and that it was from there that she and the Accused went to her apartment. She agreed that the Accused was at her mother’s house and that they both left there at 6:00 p.m. At that point C.S. asked to take a break.

She was visibly upset. [ 14 ] When she returned, and cross examination continued, she testified that it was not “quite at” 6:00 p.m. that they returned to her apartment but it was before 9:00 p.m. She was not exactly sure. [ 15 ] She confirmed that the Accused put his hands on her lap and talked about her boyfriend.

She said his hand was halfway up her lap. [ 16 ] When asked if it was possible the Accused was only attempting to comfort her, because her boyfriend was in jail, C.S. stated that “she didn’t feel any comfort.” [ 17 ] She stated he was asking her to sleep with him, and she kept saying “No, no.” [ 18 ] She confirmed that when he blocked the door from her, this was after he had forced her against the counter. [ 19 ] It was pointed out to her that at the preliminary hearing, her testimony as to the sequence of events was different and that she had testified previously that he first blocked the door, and then he forced her against the counter.

C.S. stated “it’s been a long time”, and she “did not even remember this.” [ 20 ] When asked how much she had to drink at her mother’s, she thought maybe 2 drinks. At her home, she thought maybe 6 to 8 beer. [ 21 ] It was suggested to her that she got angry with the Accused, because she wanted more beer. C.S. adamantly denied getting angry for this reason. She denied threatening to call the police on the Accused if he did not get more for them to drink, and denied that was the reason she kicked him out.

The testimony of the Accused [ 22 ] Prior to the Accused testifying, the defence brought an application for an order that the Crown be restricted in the extent to which the Accused’s record could be used. Upon hearing the parties, the Court was of the view, and the Crown conceded, that the Accused’s prior conviction for a sexual offence should be excluded from consideration by the Court. However, the Court admitted the other convictions.

These convictions related to breaches of court orders and other offences, and the Court was satisfied they could be put to the Accused by the Crown in cross-examination. [ 23 ] The Accused then took the stand. [ 24 ] The Accused stated he was 27 years of age, and was from Nain. He stated the Complainant was a friend of his “that’s all.” They grew up together in Nain. [ 25 ] He recalled the evening they were drinking together. He stated he had his own beer, and they started drinking at her Mom’s around 8:00 p.m.

It was not clear, but I understood the Accused to say that he arrived at C.S.’s mother’s house on his own, and that he did not expect C.S. to be there but she was already there when he arrived. He said when he got to her mother’s, the people there were already drinking. He stated he ended up sharing with C.S. After there was no beer left at her mother’s place they went to her apartment. He stated her mother wanted them to leave. It was a cold night and it was getting dark. [ 26 ] He stated it was both their idea to go to her apartment. They walked over from her mother’s, it was about 20 minutes away.

He stated that he was “just all right” when he left C.S.’s mother’s house. [ 27 ] He stated he gave C.S. five beer at her apartment. He agreed that they were both seated in the kitchen. She was happy. But then she started to threaten to call the police. The Accused thought she was joking at first. He stated she wanted more beer, and unless he got her some she was going to call the cops. The Accused repeated this continuously throughout his testimony. [ 28 ] He stated that C.S. got mad for no reason, and that he left on his own.

He did not have his hands on her at any point, and “did nothing.” He denied forcing her against the counter and stated “Why would I do that to her?” [ 29 ] He thought it was maybe 10:00 p.m. when he left. He thought they got to her place about 9:00 p.m. He stated he left because he did not like that C.S. “was going to call the cops for no reason.” He repeated this over and over in his testimony, often in response to unrelated questions. [ 30 ] On cross examination, the Accused agreed that he knew that C.S. had a boyfriend. However he stated that they did not talk

about C.S.’s boyfriend, and he was not comforting C.S. about him being in jail. He stated he was just having his beer, and she wantedmore beer. [31] The Accused then conceded that at one point they did get close, and almost started kissing; but there was no other touching. He again denied forcing her to the counter. He stated that C.S. wanted to “get together” with him.

He stated he thought this becausethey went to her house, they were drinking together and his beer was being taken by her. [32] He stated that he was the one to leave, and she did not like that he was leaving, so she was the one who blocked the door. Hetestified that she was the one who was getting close. [33] The Crown then went through the Accused’s criminal record with him. He did not dispute the convictions, but stated that heactually did not remember. He stated that he would have seizures and now has problems with his memory.

When he would go back todrinking the seizures would return. [34] On re-direct he stated that he had no seizures on the night in question and stated he did not get them if he did not drink “hardliquor.” ANALYSIS [35] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt.That onus never shifts. (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubtis closer to absolute certainty than it is to the balance of probabilities (R. v. Starr, [2000] 2 SCC 40).

That is, it is not enough to besatisfied that the Accused “probably” or “more likely than not” committed the offences. [36] On the criminal standard, a Court must be satisfied well beyond this level of certainty. [37] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also becognizant of the instruction in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. [38] This approach is to ensure that in a case where there may be competing versions as to what occurred, the Court does not fallinto the trap of simply choosing between the two contested versions of events, but renders its verdict on an assessment of all theevidence.

It is always helpful to review the framework of W(.D). [39] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [40] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [41] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine the evidence supports beyond a reasonable doubt that the offences occurred.

Application of the Law to the Facts [42] In the circumstances of this case, both witnesses had credibility issues. [43] While I find the Complainant tried to be honest, she was often unsure how to respond to questions, at one point saying “I don’teven remember this.” Her uncertainty of her recall is evidenced by the completely different versions given in direct examination andcross examination as to how she came to be in the Accused’s company. [44] In direct examination, she met the Accused on the road after going to the post office and she went home.

He came oversometime around or after 6:00 p.m. but before 9:00 p.m. Significantly, she testified she had not been drinking before the Accused cameto her home. Then, on cross examination, a completely different narrative emerged.

She and the Accused were actually at her mother’shome and they had been drinking and they went together to her home. [45] I do not believe C.S. was being deliberately untruthful in her direct examination, but I am concerned that she does not have areliable recollection as to what happened that day. [46] This is further evidenced by her confusion about the sequence of events, regarding the alleged assault, in particular when it wasthat the Accused tried to block her from the door. Standing alone, I would not be so concerned about such an inconsistency.

However,when coupled with the substantial difference in her evidence about how she and the Accused came to be together, her general uncertaintywhile testifying, and in her admission, she does not even remember this, I am left with a reasonable doubt as to what exactly happenedbetween the two individuals. [47] The Accused was also not a strong witness, and was also inconsistent. On direct examination he denied any touching. Oncross-examination he conceded contact, but said it was consensual. I do not believe his evidence.

However, his explanation that theComplainant became upset when he could or would not give her any more beer is plausible. [48] When I consider all the evidence, I accept there may have been some unwanted advances made by the Accused. However, thecircumstances are insufficient to establish a sexual assault.

Even if it is accepted that the Accused likely assaulted the Complainant, thisis insufficient to find the Accused guilty beyond a reasonable doubt. [49] While I do not believe the Accused, looking at all the evidence, in particular the frailties of the Complainant’s evidence, I amnot satisfied beyond a reasonable doubt that the Accused committed either a common assault or a sexual assault against C.S.

[ 50 ] I find the Accused not guilty on all charges. _________________________________ FRANCES J. KNICKLE Justice