R. v. C.K.B., 2019 NLSC 109

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. C.K.B. , 2019 NLSC 109 Date : May 24, 2019 Docket : 201803G0086 Her Majesty The Queen v. C.K.B.

Restriction on Publication: By court order made under subsection 517(1) of the Criminal Code , the evidence taken, the information given or the representations made at the judicial interim release hearing and any reasons given shall not be published in any document, or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand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.

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By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand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.

AND: 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Daniel M. Boone Reasons for Judgment Given Orally Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador

Dates of Hearing: February 4 and 5, 2019 Date of Oral Judgment: May 24, 2019 Appearances: Stephanie T. Roberts Appearing on behalf of the Crown Derek P.L. Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: 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 TEXTS CONSIDERED: David M. Paciocco, Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22Can. Crim. L.

Rev. 31 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The accused is charged with having committed a sexual assault on the complainant, N.B., between July 15 and August 31,2017, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. This is the verdict of the Court. [2] A police officer testified as to the laying of the information and of the arrest of the accused. The only other witnesses in thetrial were the complainant and the accused.

The complainant and accused were in a common-law relationship at the time of theallegations, having lived together for a considerable period, and having four children together. The assault is alleged to have occurred onthe last night they lived together in the home they shared.

The essence of the offence charged is that the accused proceeded to have analsex with the complainant after her initial consent, which had been given conditionally, was withdrawn. [3] Although they disagreed on the tone and atmosphere of the night of the alleged offence, and in respect to some peripheralfacts, the accused and complainant agree on the critical facts except that the accused testified that he respected the complainant’swithdrawal of consent, and the complainant testified that the accused continued to attempt anal sex after she had told him to stop. [4] The sleeping arrangements in the home bear some significance in both accounts.

The couple have four children; one boy andthree girls. Their home had two storeys. The family all had bedrooms upstairs, but for some time before the night of the alleged offence,their son, T.B., and the complainant had both been spending every night sleeping in the living room. [5] The complainant testified that she and the accused were together in the living room of their home when, at approximately11:30 p.m., the accused suggested that as their four children were settled for the night, they “go have some fun,” which was understoodas code between them to have sex.

She agreed and they went upstairs to their bedroom, locked the door, which was their practice, andgot undressed. [6] The accused testified that he did not suggest sex, but rather that they take a bath together in the main floor bathroom, and thecomplainant agreed. They bathed for some time, following which the complainant wrapped herself in a towel and went upstairs to theirbedroom. He followed. [7] The versions of the accused and complainant diverge on their recounting of their immediate actions and conversations oncethey went to the bedroom.

The complainant testified that they each undressed immediately upon reaching the bedroom. Before anysexual activity had occurred, she noticed that the accused adopted a “dirty look,” and she understood that he wished to engage in analsex. She initially refused, saying “not my bum.” She then agreed, but said to him that he had to go slow, and if it hurt or she told him tostop, then he had to stop. She described her consent to try anal sex as given reluctantly, but not given in response to force or threat.

[ 8 ] The accused testified that the couple initially lay on the bed without sexual contact. The overhead bedroom lights were on. He started a movie-streaming service on his laptop computer with an intention to put on a theatrical-release film. However, the complainant asked instead that he stream a pornographic film, and he started such a movie. They watched the movie for ten to fifteen minutes and then engaged in mutual foreplay. He then asked whether she would like to try anal sex and she agreed, but said that if it hurt or she told him to stop, then he had to stop.

He accepted that condition. [ 9 ] At this point, therefore, although they disagreed on the events leading up to the initiation of sexual activity, both accused and complainant recounted the essential point of the conditional manner in which the complainant expressed her consent to try anal sex. [ 10 ] Although I recount this point somewhat out of chronological sequence, it is helpful for the understanding of the evidence to note that both accused and complainant described that the ensuing series of events involved two interruptions by T.B. coming to their bedroom door, knocking, and asking that the complainant come downstairs to where they both usually slept in the living room.

These interruptions are intertwined with their respective versions of the subsequent events. [ 11 ] According to the accused, he attempted over a period of minutes to achieve anal penetration, but the complainant expressed pain before he could do so. He said that he immediately stopped trying. According to the accused, T.B. then knocked on the door and the complainant told T.B. (through the locked door) that the couple were watching a movie, but she would be down in a few minutes. The couple lay on the bed without speaking with the movie still playing. Then, T.B. came to the door again.

No sexual activity or other physical contact occurred in between the two knocks on the door by T.B. [ 12 ] The complainant described the events differently. In particular, she testified that the accused made two, or possibly three, sustained attempts at anal intercourse. On direct examination, she testified that during the first attempt she told him to stop. The accused responded by getting angry, saying that their sex life was boring and telling the complainant she would have to get used to it. The accused did not stop and the attempt only ended when T.B. came to the door the first time.

Later in her direct evidence, she said that there were two attempts at anal intercourse before T.B. knocked the first time. She said that the accused actually penetrated her, but she could not remember if this occurred during the first attempt or second. She said that during the period between the two times T.B. knocked, she believes the accused was getting ready to try to penetrate her again, but was interrupted by T.B.’s return to the door.

Although she did not initially state this when recounting the events, she later, on direct, said that after T.B. knocked the second time, the accused masturbated and ejaculated over her stomach and legs. [ 13 ] The complainant testified that at some point following her telling the accused to stop trying anal intercourse, she told the accused that they had to “hurry up and finish” because T.B. wanted her downstairs. As she had already told the accused to stop trying anal intercourse, she was expecting that they would have vaginal intercourse and this is what she was referring to when she said they had to finish.

However, she testified that the accused instead tried again to penetrate her anally. The accused relied on this evidence of the complainant to ground a defence of mistaken belief in consent. The accused, however, did not testify that he ever heard the complainant tell him to hurry up and finish. [ 14 ] On cross-examination, the complainant testified to a different version of the attempts at anal intercourse.

I will discuss her evidence on cross-examination later in these reasons. [ 15 ] The accused and complainant both said that after T.B. came to the door the second time, the accused got dressed and walked T.B. down to the living room and put him on the couch. The complainant said that the accused was angry and roughly dragged T.B. and threw him on the couch, and that she hurriedly dressed and followed them, asking them to be quiet so as not to wake the other children. The accused said that he took T.B. by the arm, walked him downstairs, and “lodged” him on the couch as one would with an infant.

He denied his actions were rough or that he was angry. [ 16 ] The accused and complainant did not have any other conversation that night, although they may have gone outside together for a cigarette. The accused went upstairs to bed. The complainant went to sleep on the living room couch. She says that she “felt gross” as a result of the anal sex, and that she cried herself to sleep. [ 17 ] The next day the accused went to a neighbour’s property to work on his house. The family had a support worker from Child Youth and Family Services who attended their house regularly to help the complainant.

The complainant told the worker that the accused had tried it [anal sex] again (she said at this point that he had tried it before), and the support worker in response told her to collect her kids and go to a transition house in Gander. Along the way, the worker called ahead to the hospital in Gander and the Royal Canadian Mounted Police (RCMP). The complainant was examined at the hospital and underwent a rape kit. No evidence of the rape kit results were adduced at trial. The complainant gave a statement to the RCMP. [ 18 ] The complainant never returned to the matrimonial home.

She is in another relationship and has custody of three of their children. T.B. resides with the accused. The complainant is seeking custody of T.B. ANALYSIS [ 19 ] The accused is charged with sexual assault contrary to s. 271 of the Criminal Code . The accused and complainant both agreed that the complainant clearly articulated that she withdrew her initial conditional consent to anal sex. If the accused continued to attempt anal sex after the complainant withdrew her consent, then the elements of sexual assault would clearly be established.

This case turns on the question of whether the accused stopped attempting anal intercourse when told to do so by the complainant. [ 20 ] I have determined that the Crown has not succeeded in proving beyond a reasonable doubt that the accused is guilty of the offence charged. My reasons follow. [ 21 ] The accused also relied on a defence of mistaken belief in consent.

As I have determined that the Crown has failed to prove beyond a reasonable doubt that the act of sexual assault occurred, my decision in this matter does not require that I address the apparent inconsistency between a defence of mistaken belief and the accused’s own version of events.

[22] The Crown has the onus to prove beyond a reasonable doubt the elements of the offence with which the accused is charged. The standard of proof required of the Crown is much closer to absolute certainty than it is to probability (R. v. Starr, 2000 SCC 40). Inthis case, the Crown must prove to that standard that the accused continued anal intercourse, or even an attempt at anal intercourse, afterthe complainant told him to stop.

The accused says he did stop; the complainant, that he did not. [23] The requirement for a criminal offence to be proved beyond a reasonable doubt is fundamental to our system of justice. Theauthorities direct how a Court ought to deal with reasonable doubt as applied to the issue of credibility in a case of conflicting accountsrelated to the essential elements of the offence charged. These cases are not to be resolved merely by choosing between the conflictingaccounts on the basis of which story is more believable.

The recognized leading articulation of the appropriate process is from the majority decision of the Supreme Court of Canada in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742 at paragraph 10:. 11 … 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. [24] The W. (D.) formula has been the subject of considerable judicial and academic commentary. I find in David M. Paciocco,Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22 Can. Crim. L. Rev. 31 the following commentaryby Prof.

Paciocco helpful in approaching the application of the formula to this case: The W. (D.) framework is intended to assist criminal fact-finders in properly applying the reasonable doubt concept to issues ofcredibility. Its three rules, designed to instruct criminal fact-finders on what to do when they believe evidence, disbelieve it entirely, orare unsure whether to believe it, are imperfect. Still, its underlying principles are indispensable in any situation where, in a criminal trial,the accuracy of testimony inconsistent with the guilt of the accused is at issue.

Those principles must therefore be understood, andrespected. They provide:

(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;

(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;

(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder cannot decide whether thatevidence is true, there is a reasonable doubt and an acquittal must follow;

(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and

(5) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt [25] It is also important to keep in mind that in considering the credibility of witnesses, a fact finder must approach the exercisewithout preconceptions, stereotypes, or any presumptions of truth and must also analyze the credibility of all witnesses with equalintensity.

Application to this case [26] There was nothing in the demeanor of the complainant or accused that indicated that either gave anything other than an honestaccount of the events they each remembered. Both versions of critical events were plausible. There was no evidence external to thewitnesses’ accounts that was of assistance in applying the W. (D.) framework. [27] The accused and the complainant both described interaction with T.B. during these events. I found the accused to be less thanforthcoming in his description of his treatment of T.B. in taking him downstairs from the bedroom.

I disbelieved the accused’srecounting of this. When describing this event on direct, he initially said that he “dragged” T.B. downstairs but quickly corrected this to“walked” him downstairs. The first description was more consistent with the complainant’s version. However, a finding that theaccused was rough in the handling of his son does not constitute evidence supporting the charge of sexual assault on the complainant.

Moreover, even a finding that the accused was less than truthful in his description of his treatment of T.B. does not lead inexorably to aconclusion that he was less than truthful about the interaction with the complainant [28] The accused’s evidence described peripheral events not mentioned by the complainant in her version and, to some degree, wereinconsistent with it. In particular, the accused described time in the bath that preceded the couple going upstairs to the bedroom.

Thecomplainant testified on direct that she and the accused went straight upstairs from the living room, but on cross-examination she saidthat the couple may have taken a bath together. Further, the accused described the events surrounding the choice of a movie and the

playing of a pornographic movie; on cross-examination, the complainant said that she couldn’t remember if a pornographic movie was playing on the laptop in the bedroom. The accused remembered foreplay; the evidence of the complainant did not include a description of foreplay. Neither the taking of the bath, the playing of a pornographic movie, nor the occurrence of foreplay would be inconsistent with either the accused stopping anal intercourse or proceeding in spite of the withdrawal of consent.

However, the complainant’s uncertain recall whether these peripheral events occurred does affect the assessment of the reliability of her evidence regarding the crucial issue of the timing and sequence of withdrawal of consent. [ 29 ] The evidence of the complainant, describing the sequence of events, was inconsistent.

Initially, she said that the attempts at anal sex ended when T.B. first came to the bedroom door, and that in the five-minute period between that and the second knock on the door by T.B., she and the accused just talked, although she believed that the accused was “getting ready to try again.” On cross- examination, she testified that the accused did attempt anal intercourse again in the period between knocks at the door, and it was on this attempt that the accused penetrated her.

She said once on cross-examination that penetration occurred before she withdrew her consent, and later that it occurred after she had withdrawn her consent. Penetration is not a necessary element of the offence of sexual assault, but it was a feature of the complainant’s version of events, and I considered the different versions of the timing of its occurrence in assessing the case put forward by the Crown. [ 30 ] In sexual assault cases, failure by the complainant to precisely relate the chronology of events is often of no significance.

In this case, however, where the essence of the offence charged is sexual activity following the withdrawal of consent, the sequence of events is crucial.

The complainant did not contradict the essence of her story that some form of sexual touching occurred after her withdrawal of consent, but I am left with a significant uncertainty as to the chronology of specific acts upon which the Crown relied in support of the charge. [ 31 ] Consistency in evidence is not, of course, proof of the reliability or honesty of a witness, but the lack of consistency related to essential matters can detract from reliability, and can leave the fact finder with doubt about its accuracy.

If the accused had not testified, then I would have had to resolve the issue whether the complainant’s inconsistency in describing the sequence of specific acts created a reasonable doubt as to whether the Crown had proved the charge. [ 32 ] But, the accused did testify. His evidence throughout his testimony on cross and direct examination was consistent in regard to the essential events related to the charge. Indeed, the Crown suggested in argument that the evidence of the accused was so consistent, and his memory subject to so few gaps, that it was indicative of a story created in defence of the charge.

I reject that submission. Consistency alone may not allow a fact finder to conclude that the evidence was given honestly and accurately, but it certainly does not require the opposite finding. [ 33 ] In accordance with the direction from the authorities, as I found the exculpatory evidence from the accused credible, I must acquit him. [ 34 ] The evidence as a whole leaves me in reasonable doubt as to whether the accused continued attempting anal sex after the complainant’s consent was withdrawn. [ 35 ] For these reasons, the charge is dismissed. _____________________________ Daniel M. Boone Justice