R. v. A. H., 2018 NLSC 234

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. A. H. , 2018 NLSC 234 Date : November 22, 2018 Docket : 201808G0043 Her Majesty The Queen v. A.H. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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 Frances J Knickle Reasons for Judgment Given Orally Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: November 6 and 7, 2018 Date of Oral Judgment: November 13, 2018

Summary:

The Accused was charged with sexual assault and sexual interference. The Court acquitted the Accused. While the Court was satisfiedthere may have been sexual contact, the Court could not be satisfied beyond a reasonable doubt that the contact was without the consentof the Complainant. The Court was left with a reasonable doubt by not only the evidence of the Accused but all the evidence. Appearances: Samantha E. Allen Appearing on behalf of the Crown Dana M. MacSween 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 is charged with having committed a sexual assault and sexual interference against A.R., contrary to Sections271 (1)(

a) and 151, respectively, of the Criminal Code. This is the decision on verdict. [2] The Complainant A.R., who was 14 years old at the time of the alleged conduct, testified that after an evening of drinkingand having gone to a party, she returned to her friend’s house (A.H.), who is someone other than the Accused, around 1-2am, and passedout. She awoke to find the Accused taking off her pants and touching her vagina. A.R. testified that the Accused put his arm across hermouth and neck. A.R. stated she told the Accused to stop several times and resisted his efforts.

She said she could see the Accused asthere was some light in the room. She thought it may have been around 5-6 in the morning. She stated she got up and got her pants on,but got up so quickly that she blacked out, as she was very intoxicated at the time. The next thing she remembered was waking up in thewashroom, where she took a couple of “Tylenol” pills. [3] A.R. testified she had a flask of vodka, and a “couple beers”, that evening. A.R. testified she was sure she was the only one inthe bedroom when she went to sleep. She was also sure she returned to the house first.

She testified that she locked the door, becauseshe knew her friend Z. had a key and could let herself in the room. A.R. testified when she woke up, her friend Z. was also in the bedasleep as was the Accused. A.R. said she was in a relationship at the time, as was the Accused. A.R. stated she did not consent to thetouching and had thought the Accused was her friend. [4] The Accused admitted he had sexual intercourse with A.R. (of which A.R. did not testify to) but denied any sexual assault. The Accused testified that A. R. was essentially following him around over the course of the evening.

This was inconsistent with A.R.insofar as she testified she left A.H.’s house to go to a party. He testified that it was A.R who initiated the contact. That he was asleep inthe room and that A.R. came to the room and lay down and started kissing him. The Accused maintained he only had sexual intercoursewith A.R. because he was not ‘fully awake.” When he realized what was happening, he said he stopped. The Accused also gave astatement to the police. This statement was not entered in evidence but after a voir dire was ruled admissible.

The Accused was crossexamined on parts of that statement. [5] While there was clearly a divergence between A.R. and the Accused as to the circumstances of the sexual contact, theirevidence was consistent with each other in several regards. They both agreed that A.R. was very intoxicated, and the Accused was sober,or had little to drink on the evening in question. They both agreed that the Accused had recently moved to the area and was staying atthe house of A.H.’s and this was where A.R. was that evening when she encountered the Accused.

They both agreed that A.R. gave theAccused one or more sips of her flask earlier in the evening. They both agreed that they were sleeping in the same bed at A.H.’s houseand the mutual friend Z. was also asleep in the bed; although they differ on how they each came to be there. They both agreed there wassexual contact, although they differ on the nature of the contact and how it came about. They both agreed that A.R. and Z. woke up the

Accused later that morning and told him to leave the room. ANALYSIS [6] 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 doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, [2000] 2 SCC 40). It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences.

On the criminal standard, a court must be satisfied well beyondthis level of certainty. [7] 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. This approach is to ensure that in a case wherethere may be competing versions as to what occurred, the Court does not fall into the trap of simply choosing between the two contestedversions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework of W.(D.). [8] Firstly, if the evidence of the accused is believed and would support a finding of not guilty, the Court must find the accusednot guilty. [9] 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. [10] 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. [11] In this case,

Section 150.1(2.1)(a)(

i) of the Criminal Code also applies; as A.R. was 14 years old at the time of the incident andthe Accused was 18 years old at the time. This means, that notwithstanding her age, A.R. was legally capable of consenting to thecontact, as there was less than five years in age between she and the Accused. Application of the Law to the Facts [12] In this case, applying W. (D.), while I do not believe the Accused, I am left with a reasonable doubt by his evidence. Whenconsidered with all the evidence that I do accept, I have a reasonable doubt that there was sexual contact without the complainant’sconsent.

I am also left with a reasonable doubt as to whether the offences occurred, because of a lack of evidence. [13] Insofar as the Accused’s explanation as to how he came to be having sexual contact with A.R., he was not a believable witness. His testimony that he only had sexual contact with A.R. because he was not “fully awake” is not credible. He testified to this, while atthe same time testifying that he also stated to A.R. “why are you doing this” or “why are you laying beside me” while she waspurportedly touching him first.

This testimony makes no sense, if he was still half asleep, and is not reconcilable with his testimony thathe only stopped when fully woke, and he realized it was A.R. [14] It is also not credible, given he was the one who was more or less sober of the two. Given his level of sobriety, it is not logicalthat A.R., who I accept was intoxicated and passed out in her bed, was the one who initiated the sexual advances, while the Accused layasleep and unknowing of what was happening to him.

To accept his evidence outright, I would have to accept that in her intoxicatedstate A.R. managed to remove the Accused’s pants while he was asleep, and started having intercourse with him, without him knowingwhat was going on. [15] The Accused’s explanation that he was actually fully engaged in intercourse with the complainant before realizing what wasgoing on is not credible in light of his sobriety, and I reject his testimony to the extent that he asserts that the sexual contact occurred onlybecause A.R. initiated the contact, and he was not fully awake. [16] The Accused also testified about events that occurred between he and A.R., which were not put to A.R. on cross examination,and I give this evidence little weight. [17] But I do not reject the Accused’s evidence in its entirety, and I do accept that on the evidence before me, it is plausible thatthere was consensual sexual contact between he and A.R. that evening.

While I do not believe him on his version, I am left with areasonable doubt by his assertion the sexual contact was consensual on A.R.’s part, especially when considered with A.R.’s evidence. [18] A.R.’s description of awaking to find the Accused taking off her clothes and refusing to stop despite her resistance until shemanaged to get off the bed, before she then passed out, is conduct that could constitute sexual assault, but I am not satisfied beyond areasonable doubt that this is what occurred. It may be what occurred, but that is not enough to establish guilt on the criminal standard.

Because of her lack of memory, and inconsistencies as discussed below, when considered with all the evidence, A.R.’s evidence is notreliable enough to be satisfied that there was sexual touching without her consent. [19] Firstly, there were significant gaps in A.R.’s memory as to the sequence of events both before, and immediately after thealleged assault, as well as the morning after. There was a paucity of evidence, except the bare facts of awaking to find the Accusedtaking off her pants.

While her lack of memory as to what happened once she left the party to return to A.H’s house is understandable asA.R. was intoxicated at that point, and I accept that she was intoxicated, her intoxication at the end of the evening does not explain whythere were such gaps in what happened early in the evening, or the next morning or concerning the sequence of events that led her tospeak to the police.

These significant gaps in all of her evidence cause me concern as to being able to be satisfied of her narrative aboutthe alleged offences. [20] I am also troubled with A.R.’s narrative, in that the Accused was prepared to admit that he had intercourse with A.R, but denied

the touching of her vagina, as described by A.R., and A.R. denied that there was any sexual intercourse. It may be that there was no intercourse, but it may also be that there was intercourse, that A.R. does not remember.

Prudently, the Crown, in fact did not ask to found a conviction on whether or not intercourse occurred submitting that if intercourse occurred, it is unknown whether or not that was consensual as A.R. testified, she did not recall many parts of the evening. [ 21 ] The problem in this case, is that there is such a paucity of evidence, I cannot be satisfied as to what occurred. [ 22 ] Further, there are two aspects to A.R.’s testimony, which I find to be inconsistent statements that cause me concern, in light of the considerable lack of detail about the evening generally. [ 23 ] Firstly, A.R. testified that when she awoke, A.H. put his hand over her mouth and his arm across her neck.

A.R. did not disclose this to the police when she made her original complaint. On the one hand the fact that a witness may provide further detail in a subsequent statement (or as here, in testimony) is not problematic standing alone. It is not unusual for a witness to remember different details at different times. [ 24 ] However, here, this difference between her testimony and her statement to the police causes me concern.

I am troubled by this additional detail, because saying that the Accused placed his arm over her mouth and across her neck is not the kind of detail one would expect someone who had been subject to that application of force to forget. It is a significant detail about the alleged assault because it changes the character of the assault and suggests a more aggressive encounter than what was told to the police.

When this is considered with the fact that there are so few details as it is about what happened, to then have such a significant deviation causes me concern as to the reliability of A.R.’s overall account. [ 25 ] The second aspect of her testimony that causes me concern, albeit less so, is A.R.’s testimony about how she got home, and who she told what and when. A.R. testified her “Mom picked her up,” she went to school, and to the police station later that day.

However the testimony of the Investigating Officer was that when A.R. came to report the incident with her mother, the incident was to have occurred over the weekend, and not on a school day. (The Accused’s evidence was also essentially that the incident had occurred over the weekend although he also testified that he went to school later that day. Both the Accused and A.R. were confusing on this point, and it was hard to understand what sequence of events occurred the morning after the alleged incident). [ 26 ] Standing alone, this kind of inconsistency would not be problematic.

It is detail peripheral to the assault itself. It is not unusual for a witnesses be mistaken about peripheral details, and it is clear from a review of all the evidence that the party took place on the weekend, and the reporting to the police occurred a couple of days later.

I accept these particular mistakes are honest mistakes about her recall, but when I consider this with the other significant inconsistency, and the gap in her memory as a whole, I simply cannot rely on her evidence to be satisfied beyond a reasonable doubt that she was sexually assaulted. [ 27 ] Put another way, while standing alone this is not the kind of inconsistency that would cause me concern, in light of A.R.’s poor recall in general, it becomes a more significant inconsistency, and undermines the reliability of her overall recall as to what happened.

When this is coupled with the Accused’s explanation, of which is plausible to the extent that there may have been consensual contact between he and the complainant, I am left with a reasonable doubt that the offences occurred. [ 28 ] When I consider all the evidence, while I am satisfied that there was sexual contact between A.R. and the Accused, I am not satisfied beyond a reasonable doubt that the Accused committed sexual assault or sexual interference.

I do not believe the Accused’s explanation as to how the sexual contact came about, but when looking at all the evidence, in particular the frailties of the Complainant’s evidence, I am with a reasonable doubt that the Accused committed either offence against A.R., and that was sexual contact without the consent of the Complainant. [ 29 ] I find the Accused not guilty on both charges. _____________________________ Frances J Knickle Justice