R. v. D.S, 2021 NLSC 177

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. D.S . , 2021 NLSC 177 Date : December 22, 2021 Docket : 201904G0179 Her Majesty The Queen v. D.S. 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.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: December 6, 7, 8, 9 and 10, 2021

Summary: Following a trial, the accused was acquitted of sexual assault, assault and mischief. Appearances:

Jeffrey C. Young Appearing on behalf of the Crown Robby D. Ash Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Dick, 2018 BCCA 343; R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, [2000] 2S.C.R. 44; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Best, 2016 NLCA 10; R. v. D. (D.), 2000 SCC 43; R. v. B.(G), (SCC), [1990] 2 S.C.R. 30; R. v. Ewanchuk, 1999 SCC 711 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] D.S. stands charged with four counts of sexual assault, contrary to s. 271(1) of the Criminal Code, R.S.C. 1985, c. C-46, twocounts of common assault, contrary to s. 266 of the Criminal Code, and two counts of mischief by damaging property, contrary to s.430(1)(

a) of the Criminal Code. The offences are alleged to have occurred on various dates in 2018, at or near the community of LittleRapids, NL. The complainant in each case, S.S., is the spouse of D.S. [2] There were two main witnesses at trial, the complainant and the accused. The investigating officer, RCMP Constable Park,was also called by the Crown at the request of the defence and briefly cross-examined.

The Evidence Background [3] The following facts are not controversial and are derived from the combined testimony of S.S. and D.S. [4] The complainant and accused met in Nova Scotia in 2007, while D.S. was attending agricultural college. Upon returning tothis province they lived together for a couple of years, before getting married in May 2009. In February 2011, S.S. gave birth to adaughter. [5] Shortly after marriage, S.S. and D.S. worked on a dairy farm owned by D.S.’s father and two of his uncles.

In October 2009they purchased the cows and equipment, placing the operation in a new company of which S.S. and D.S. were sole directors and equalshareholders. The farm land was leased. S.S. and D.S. jointly operated the company, sharing in the chores and manual labour on thefarm, as their physical abilities would permit. This continued until D.S. was arrested on 5 March 2019 in relation to the current charges. [6] The farm struggled financially and served as a source of tension in their relationship, although the marriage was in troublebefore the financial difficulties began.

Leading up to 2018, S.S. and D.S. were arguing over such things as finances, farm chores andtheir daughter’s care. When the two separated in early 2018, they initially stayed in different bedrooms in the same house, but eventuallyD.S. moved into a second house on the farm next door to S.S. While separated they continued to operate the farm together, share in thechores, socialize with friends and spend shared time with their daughter. [7] In the fall of 2018 D.S. and his uncle met with the farm’s creditor and were told that if things didn’t improve the farm wouldbe liquidated.

D.S. was subsequently charged with sending a threatening email to this creditor, but the charge was dismissed. S.S.provided the police with the email in question, and it was then when she alleged that she had been assaulted by D.S. [8] S.S. provided two videotaped statements under oath to the police, on 6 and 8 March 2019. [9] In 2018, S.S. and D.S. were working on a separation agreement which included custody/access of their daughter, but no CourtOrders were in place. In July 2019, S.S. moved to New Brunswick, taking their daughter with her.

The Charges [10] As D.S. is facing a number of charges, for the sake of clarity, I will address the evidence in relation to each as they appear onthe Indictment. 28 January 2018

Count#1 On or about the 28 th day of January, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit a sexual assault on [S.S.], contrary to section 271(1) of the Criminal Code ; Count #2 On or about the 28 th day of January, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit an assault on [S.S.], contrary to

section 266 of the Criminal Code ; The Evidence of S.S. [ 11 ] S.S. testified that on 28 January 2018 she, D.S., and some friends went out to a bar together. She left early with a friend who lived at Humber Valley, was dropped off at her home in Little Rapids on route, and went to bed. [ 12 ] According to S.S. she was awoken later to find D.S. in bed inserting his fingers in her vagina.

She told him “over and over” to stop and tried to fight, but D.S. pinned her down by her shoulders, holding her arms against her sides and put a pillow over her face. [ 13 ] According to S.S., while at the bar both she and D.S. were drinking. She did not know if she was intoxicated when she woke up, but she felt by his behavior that D.S. was intoxicated. [ 14 ] He proceeded to remove her panties to engage in vaginal intercourse, telling her that if she didn’t “lay down and take it” she would never see her daughter again. S.S. testified that she took from this threat that she and/or her daughter would be killed.

She was scared for her life. [ 15 ] According to S.S., after what seemed a long time, probably 15-20 minutes, D.S. realized what he was doing and stopped. He eventually took the pillow off and she just lay there. [ 16 ] D.S. then got up, telling her that he was going to look for a gun. She took from this that he meant to do harm to her and her daughter. In his absence, she took the opportunity to text her friend. She thought the friend might be up as she was a young mother. The friend called her back and they talked, but she did not relate that she had been sexually assaulted, or threatened.

When D.S. returned she hung up. The following day she moved into the spare bedroom in their home. [ 17 ] When questioned if at any point she got up and went to the bathroom, S.S. first said she didn’t know, but after a pause said that she did not. [ 18 ] On 6 March 2019, S.S. provided the first of two sworn videotaped statements to the police. During her statement S.S. said nothing of being awoken to find D.S. inserting his fingers in her vagina. Rather, she said that he came home and asked for sex, to which she said no. She also said nothing about a pillow being placed over her head.

When demonstrating to the police the position of her arms, she held them over her head, not down by her sides. In her 6 March 2019 statement she told police that she kept wishing that she had access to her cellphone to call for help. The Evidence of D.S. [ 19 ] D.S. testified that he recalled an encounter with some similarities to that related by S.S., but that it was on the first weekend in February 2018, not January. His friend had returned from Calgary after a year and a one half’s absence, and he, S.S. and a friend of S.S., met him at a restaurant, Sorrento’s.

They stayed for approximately 2-3 hours, where D.S. consumed approximately 4-5 drinks of whiskey and S.S. consumed 3-4 glasses of wine. [ 20 ] The group left the restaurant and went to a bar, Flynn’s, where D.S. guessed that he had 4-5 beer. He also believed S.S. was drinking and that she was intoxicated. He could tell, as amongst other indicators, her smile would change. For his part, he admitted also taking the lion’s share of a gram of cocaine and that he too was intoxicated.

He denied that his recall of the events that evening was affected, as at the time cocaine enhanced, rather than impaired his perception. [ 21 ] S.S. and her friend left the bar at approximately 1 a.m. and he and his friend about an hour later. It took them a while to wait for a cab. At the time he and S.S. were still sharing the same bed, although their relationship was strained and arguments were frequent. [ 22 ] When he entered the bedroom S.S. was awake.

He got into bed, leaned over and kissed her on the neck, or cheek, whereupon she said, “If we are going to have sex I have to pee first.” She then got out of bed and went to the bathroom across the hall. He could recall that she was wearing a tee shirt and panties. Upon returning to bed, she lay on her back, and appeared relaxed. He then put his hand on her leg to arouse her and she responded by opening her legs. Nothing was said by either at this point. When she was wet, S.S. reached down and directed his penis into her vagina.

He recanted with some difficulty that the cocaine effected his sexual performance and he was unable to stay hard, or to “finish.” This prompted S.S. to become angry with him, saying that he no longer found her attractive and didn’t love her. He stopped, the two argued, and he went outside for a cigarette. [ 23 ] When he returned they continued to argue. He probably said some hurtful things, whereupon S.S. then moved into the spare bedroom.

Thus began their period of physical separation. [ 24 ] D.S. emphatically denied placing a pillow ever the head of S.S., pinning her down or threatening her with the loss of her daughter if she did not comply. While acknowledging that, as a hunter, he had guns on the property, he testified that these were held in a

locked gun safe. He denied leaving the bedroom to look for a gun. He denied S.S.’s assertion that she told him to stop, or that she struggled to escape. 16-17 January 2018 Count #3 On or between the 16 th to the 17 th day of January, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit a sexual assault on [S.S.], contrary to section 271(1) of the Criminal Code . Count #4 On or between the 16 th and 17 th day of January, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit an assault on [S.S.], contrary to

section 266 of the Criminal Code . The Evidence of S.S. [ 25 ] S.S. testified to a second incident, this time when both she and D.S. were living in separate houses on the farm. She was in her bed on her cellphone when D.S. entered uninvited and demanded to know to whom she was talking. He tried to open her phone, which was password protected, by placing her thumb on it. He then proceeded to hit her with an open hand around her face and sides over 100 times “as hard as he could”.

At the same time he exclaimed that he was hitting her “where the bruises wouldn’t show.” [ 26 ] According to S.S. she nevertheless received bruises. A couple of days later she took five photographs, copies which were entered in evidence. I will have more to say about these photos later in this judgment. [ 27 ] S.S. testified that in addition to the beating, D.S. proceeded to take her vibrator and press it to her clitoris, while he kneeled on the bed. S.S. asked him to stop, but he refused.

Eventually he left. [ 28 ] According to S.S. she was not sure if she had been drinking, or whether or not D.S. had been drinking and she could not recall the events leading to this alleged incident.

She could not recall in which month this incident occurred, but thought it was prior to her birthday, on 3 September 2018, and possibly in May 2018. [ 29 ] The foregoing description of events differs from that described by S.S. in her 6 March 2019 statement to police. [ 30 ] In her statement, S.S. related that while at the police station she and her friend “figured out” that the incident actually occurred following a moose dinner at a local club in November 2018. Indeed, the photographs taken by D.S. are date stamped 20 November 2018.

In her statement, S.S. said that she and D.S., along with some friends, went to the dinner in the same vehicle. At the time she and D.S. were separated, but still trying to be civil to each other. [ 31 ] She and D.S. came home together, whereupon D.S. said he was coming in. She said no, but he came in anyway. She could not remember how she got in bed, but D.S. was holding her down while she tried to get away.

When asked what strength he was using when he hit her, S.S. stated that she did not know as she had a “lot to drink.” The Evidence of D.S. [ 32 ] For his part D.S. denied ever physically assaulting S.S., stating, “I’ve never hit [S.S]. I’ve never hit anyone.” While he was aware that S.S. possessed a vibrator, he denied ever using it on her without her consent.

According to D.S., the incident as described by S.S., whether it be prior to September 2018, or in November 2018, simply did not occur. 9 August 2018 Count #5 On or about the 9 th day of August, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit mischief by willfully damaging without legal justification or excuse and without colour of right, property, to wit: the front entrance door, the property of [S.S.], which damage did not exceed five thousand dollars in value, contrary to section 430(1) (

a) of the Criminal Code . The Evidence of S.S. [ 33 ] S.S. testified that in early August 2018, likely during the afternoon, D.S. proceeded to kick in the front door to her house. This was preceded by several threatening text messages from D.S. saying that she was not safe in her own home. Copies of undated photos of the door and its frame, taken by S.S., were tendered in evidence.

[ 34 ] From the photographs it would appear that the door has not been removed from its hinges, but on the lock side the jamb is splintered away, suggesting that the door was forced open. There is what appears to be a wet and muddy print approximately one third of the way up on the door panel nearest the lock.

The deck leading to the door appears dry. [ 35 ] When asked to explain the wet mark on the door, S.S. first said she saw D.S. walk across the grass, but when questioned further, recanted, saying she was not sure how he got there as she was in the house. [ 36 ] During cross-examination S.S. admitted that she had previously broke the same door with a sledgehammer, as she was locked out and her daughter was locked inside. She denied staging the incident.

The Evidence of D.S. [ 37 ] D.S. denied kicking in the door to S.S.’s residence, although he conceded that one of the photos entered in evidence showed what appeared to be a boot print on the door. [ 38 ] He related an incident in February 2019 when S.S. broke the door open with a sledgehammer, damaging the doorframe in a manner as shown in the photographs, but could not say whether the damage was exactly the same. [ 39 ] D.S. could also recall an occasion where both he and S.S. forced the door open, as the lock was not working properly. 16 April 2018 Count #6 On or between the 10 th to the 16 th day of April 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit mischief by willfully damaging without legal justification or excuse and without colour of right, property, to wit: an Apple iPhone, the property of [S.S.], which damage did not exceed five thousand dollars in value, contrary to section 430 (1) (

a) of the Criminal Code . The Evidence of S.S. [ 40 ] S.S. testified that she was home one night in April, and still sleeping in the spare bedroom, when D.S. took her cellphone from her and broke it with his hands. She felt something bad was going to happen and tried to call 911, but the call didn’t go through. [ 41 ] Constable Park testified that if a 911 rings through, but the caller hangs up, or the call otherwise ends, the RCMP are able to determine from tracking software from where the call originated. In that circumstance they are sent out to investigate.

To the best of her knowledge the RCMP have no record of a missed 911 call relating to D.S. or S.S. It is not known whether the alleged 911 attempt rang through on the other end. [ 42 ] In her 6 March 2018 statement to police, S.S. said that she had been out somewhere, that she was lying in bed looking at Facebook on her cellphone, when D.S. came in and smashed it on the floor. She later corrected this in her statement, saying that he broke it in his hands, ripping the screen.

The Evidence of D.S. [ 43 ] D.S. testified that he could recall an incident prior to April 2018 where the cellphone, then being used by S.S., got damaged. He and S.S. were in the living room arguing, when S.S. threw the phone, striking him and the floor. He then picked it up, and while he initially planned on throwing it back, thought better and elected to pitch it across the room where it hit the floor and slid under a couch. He acknowledged that he was frustrated and angry when he did so.

Ultimately, the screen was cracked, although he could not say whether it broke when S.S. threw it at him, or when he pitched it. He denied that the incident occurred as described by S.S. or that he broke the phone to prevent her from dialing 911. [ 44 ] He could not recall if the broken phone was ever repaired. In any event, the next day he purchased S.S. a new phone, coloured rose-gold, as his was the only name on the Bell cellphone account.

He denied purchasing the phone out of guilt, but rather because when living and working on the farm S.S. needed one. 3 September 2018 Count #7 On or about the 3 rd day of September, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit a sexual assault on [S.S.], contrary to section 271(1) of the Criminal Code . The Evidence of S.S. [ 45 ] S.S. testified that she and D.S. were attending a birthday party in her honour at a friend’s house in Humber Village. D.S. had assured her that everything would be fine, and that nothing would happen.

She could not recall who drove to the gathering, but D.S. was

driving on the return. However, instead of driving her home, he drove to a secluded part of the farm away from the house. Fearing for her safety, she tried several times to get out of the vehicle, opening the passenger door while it was moving, but D.S. reached across and closed it. [ 46 ] According to S.S. she never knew what was going to happen with D.S. at the end of the night.

She nevertheless elected to get a drive home from him, as if she went with someone else it would “probably be worse.” S.S. testified that D.S. stopped the vehicle, pushed her seat back, ripped her dress off, got on top of her and proceed to have vaginal intercourse. She told him to stop, to which he replied this is how you like it and called her a “slut.” All the while she was wanting to press the vehicle’s SOS button, but D.S. kept smashing her arm down. When finished, he drove her home and dropped her off. [ 47 ] S.S. felt that D.S. was probably intoxicated, although she could not say how much he had to drink.

She offered that D.S. was missing from the party for a portion of the evening. S.S. acknowledged that she too was drinking, and was probably intoxicated, but maintained that this did not affect her memory of the assault. [ 48 ] In her 6 March 2019 statement to police, S.S. said nothing of the foregoing incident. When questioned on the omission, her response was that she did not recall it at the time. She did describe the assault in her second police statement a few days later.

The Evidence of D.S. [ 49 ] D.S. recalled that on 3 September 2018 he and S.S. drove to a friend’s house in Humber Village to celebrate her and another person’s birthday. They were separated at the time, but still doing things together with their daughter, such as watching movies and camping, as well as attending social functions. As it was her birthday, and S.S. was intending to drink, he agreed to be the designated driver. They were in S.S.’s Jeep Cherokee. [ 50 ] While at the party he consumed at most 3 beers during the early part of the evening and did not consume any other drugs.

At one point, between 9 and 10 p.m. he left to check on the barn. [ 51 ] By the time the two left the party S.S. could still walk, but was intoxicated. On the way home she was in a bad mood and angry with him, but he could not say why, except perhaps because he was then sober. He had given her a kayak for her birthday and could recall that she was wearing a lifejacket in the vehicle, an apparent gift at the party. He jokingly said that she needed a helmet. [ 52 ] On the way home he may have stopped at the horse barn and/or cow barn to push feed, but otherwise drove S.S. straight to her house.

She got out and went in. He may have carried some gifts to the door, but did not enter. [ 53 ] D.S. denied that anything untoward happened on the way home. Specifically, he denied driving S.S. into the bushes, engaging in sex, or that she attempted to exit the vehicle while moving. D.S. testified that he did not reach across to close her door, and in any event, such a feat would not be possible while driving in a vehicle as wide as a Jeep Cherokee.

December 2018 Count #8 On or between the 21 st and 22 nd day of December, 2018, at or near the community of Little Rapids, province of Newfoundland and Labrador, did unlawfully commit a sexual assault on [S.S.], contrary to section 271(1) of the Criminal Code . The Evidence of S.S. [ 54 ] S.S. testified that she had been out and upon arriving home, as she was getting ready for bed, D.S. came to her door.

He convinced her to let him in, whereupon he proceeded to pick her up and carry her over his shoulder to the house in which he was staying next door. [ 55 ] Here he carried her to his bedroom, where he took off her underwear and proceeded to digitally penetrate her vagina. He then turned her over and threatened to rape her anally. He inserted his penis partially in her anus, after which he stopped and started crying, saying that he did not know why he did such things. [ 56 ] S.S. testified that she asked him to stop and thought that she had tried to get away.

At the time, she had an overnight babysitter staying at her house. [ 57 ] During cross-examination, S.S. testified that she may have called out when being abducted, but in any event the babysitter did not appear. The house in which she was then living was a three bedroom bungalow of approximately 1,000 square feet. After the alleged incident she returned to her house and went to bed. [ 58 ] S.S.’s statement to the police on 6 March 2019 paints a very different picture.

S.S. tells Constable Park that after the November 2018 incident (a reference to the moose dinner) “nothing bad happened.” She also stated that D.S. came to her house in December 2018 and carried her to his house, took her underwear off, but he “didn’t do anything.” [ 59 ] On 8 March 2019, S.S. provided a second statement to police. This time she related that D.S. tried to penetrate her digitally, and that he started touching her butt, but the two didn’t have sex. The Evidence of D.S. [ 60 ] The response of D.S. to this alleged incident is simple. It did not happen.

What is more, D.S. testified that there was no similar

event where he carried S.S. from her house to his. According to D.S. he engaged in “no sexual activity whatsoever” with S.S. duringDecember 2018. Analysis [61] The evidence of S.S. and D.S. cannot be reconciled. The Court is therefore left to assess the testimony of each, bearing in mindthat the question is not which of the two versions is to be preferred, but whether on the evidence I accept the Crown has proven theelements of each, or any, of the offences beyond a reasonable doubt.

In other words, the inquiry is not a credibility contest on whoseevidence is to be believed, the accused or the complainant, but whether the Crown has proven beyond a reasonable doubt that theaccused committed the offence(

s) for which he is charged (R. v. Dick, 2018 BCCA 343). [62] The Crown’s onus does not require absolute proof, as such is impossible to achieve (R. v. Lifchus, (SCC),[1997] 3 S.C.R. 320). But the burden of proof is much closer to absolute certainty than to a balance of probabilities (R. v. Starr, [2000] 2S.C.R. 44.) [63] In this case, while not obliged to do so, D.S. testified in his own defence. The principles in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 thus apply. As with any witness, I may accept all of D.S.’s evidence, some of it, or none at all. [64] If I believe the evidence of D.S., I am bound to acquit.

Likewise, if his evidence is such as to raise a reasonable doubt. Ifneither of these circumstances apply, I must still ask myself whether I am left with a reasonable doubt based on the whole of the evidencewhich I do accept (R. v. Best, 2016 NLCA 10). [65] That said, I found that D.S. presented his evidence in a clear and direct manner. He did not hesitate or waiver in his testimonyand was not seriously challenged during cross-examination. He was not combative or prone to exaggeration. Overall, I was alsoimpressed by his candour.

He admitted to behaviour which was arguably against his interest, his use of cocaine, of being “angry” whenhe threw the cellphone, and in saying hurtful things, for example. Overall, his evidence was internally consistent and lackedembellishment in his favour. In short, I found him to be an impressive witness. [66] Adopting the approach in W.(D.), I find that the evidence of D.S. is such as to leave me with a reasonable doubt as to his guilton each of the offences. On this basis alone, D.S. is entitled to an acquittal.

However, were I in error in placing such reliance on histestimony, I would nevertheless also be left with a reasonable doubt based on my assessment of the evidence as a whole. [67] With the greatest respect, I did not find the testimony of S.S. to be convincing. There were long pauses in her testimony,leaving me with the impression that she was trying to recall what she had said previously, and anticipate the defence strategy, rather thanrecollect the event in question. [68] I accept that some discrepancies in a witness’ evidence might be reasonably anticipated.

Paradoxically, the evidence of awitness who is able to recant each detail with precision might itself be suspect, as appearing contrived and rehearsed. Memories fade,are lost and at times recovered.

This is particularly the case in instances of sexual abuse, where the trauma of the event may result in thesuppression of memory. [69] That said, inconsistencies in the evidence are not to be overlooked, but must be carefully scrutinized to determine whether theyare of no real evidentiary import, or significant enough to cast the reliability of the witness’ evidence into question and introducereasonable doubt into the equation. A single significant discrepancy may be enough to do so.

So too may a combination ofdiscrepancies, which when viewed individually are of no real import, but when considered collectively give the trier of fact cause forpause. [70] Of greater import than the manner in which S.S. delivered her evidence, there were material inconsistencies and contradictionsbetween her evidence and sworn police statements on 6 and 8 March 2019. These are not easily explained by the passage of time, ornervousness, and amount to more than mere elaboration. They call into the question the reliability of S.S.’s evidence generally.

I wouldhasten to add, however, that I am not suggesting that S.S. was deliberately lying. Such a conclusion is not required. Rather, whencombined with the evidence of D.S., the inconsistencies and contradictions are such as to give rise to a reasonable doubt with respect towhether the events occurred as S.S. described them. [71] In assessing the evidence of S.S. I observe that the alleged assaults in this instance are not historical in nature.

The statementsprovided to the police by her were during the first week of March 2019, just three months after the alleged assault in December 2018 and14 months following the first alleged assault in late January/early February 2018. [72] Turning now to a consideration of this evidence. December 2018 - Count #8 [73] Of all the discrepancies in the testimony of S.S., the evolution of her evidence regarding the alleged incident in December 2018is perhaps the most concerning.

While not determinative, it is such as to cast a long shadow over the reliability of her testimonygenerally. [74] The narrative begins with S.S.’s statement to police on 6 March 2019. At this time she related that D.S. came to her home andcarried her over to his house, removed her underwear, but that nothing happened. This is also consistent with her statement to police thatnothing bad happened after November 2018. We are now just a few months after the alleged event, at a point when presumably S.S.’smemory is fresh.

Having remembered being carried from her home, leaving the babysitter behind, it would be reasonable to suppose that

S.S. would also recall what happened next. Indeed, she did not say that she could not recall what happened, but rather that nothinghappened. [75] When questioned at trial, S.S. provided two contradictory explanations for the discrepancy. First, she explained that what shemeant by “didn’t do anything” was that she was not vaginally raped. Alternatively, that at the time of the statement she did not recallwhat happened and was overwhelmed. [76] Two days later S.S. gave a second statement to the police.

On this occasion, S.S. told police that D.S. removed her pants andunderwear, penetrated her vagina with his fingers and started touching her butt, but the two didn’t have sex. [77] S.S.’s first statement to the police was given just three months following the alleged assault. Her version of what happenedevolves from nothing happened, to digital penetration but no sex, and finally, during her evidence at trial, into digital penetration, andanal intercourse.

This evidence amounts to far more than an elaboration of what happened, as suggested by the Crown, such that I amleft to question which version, if any, is the correct version, recognizing that all were given under oath. 3 September 2018 - Count #7 [78] S.S. also testified to a sexual assault while trapped in the passenger seat of her Jeep Cherokee, when returning from a party forher birthday on 3 September 2018. S.S. alleges that the assault occurred in an isolated part of the farm and that she was terrified.

Sheacknowledged being intoxicated and offered that D.S. was probably intoxicated as well, but did not say why. She also offered that hewas away from the party for hours. [79] For his part, it will be recalled that D.S. remembered the evening in question. As he was the designated driver, he was notdrinking, and at some point he left the party to attend the barn. D.S. denied that the assault ever occurred.

He was able to recall somedetails of the evening and that S.S. wore a lifejacket home, an apparent gift received at the party. [80] S.S. testified that while being sexually assaulted all she could think about was reaching the SOS button, but was prevented byD.S. from doing so. If believed, she was then more than willing to notify the authorities of her situation. When she was later dropped offat her house, however, she took no such action.

In fairness, S.S. was apparently no longer in any immediate danger at this point and thereare any number of reasons why she might change her mind about notifying the authorities. I would not regard her failure to do so,standing alone, as giving rise to an adverse inference against her credibility (see R. v. D. (D.), 2000 SCC 43 at para. 65). [81] However, the fact that S.S. said nothing regarding this incident when she gave her first statement to the police is concerning. Itis possible, of course, that she was overwhelmed at the time and simply forgot.

However, Constable Park pressed her throughout theinterview for what she could recall. Yet this incident, if it occurred as described, was arguably one of the more traumatic of the allegedassaults, involving forcible confinement and intercourse while in a secluded location. Yet when giving her first statement, S.S. couldallegedly recall incidents before and after this one and incidents of a relatively more minor nature. [82] She did relate the incident two days later, however, and included it in her 8 March 2019 statement.

One has to be careful inplacing too much emphasis on her previous lack of disclosure, but it is nevertheless a consideration in my assessment of her evidence as awhole. 16-17 January 2018 – Counts #3 and #4 [83] The evidence of S.S. regarding the alleged beating, whereby D.S. struck around her face and sides over 100 times is alsoproblematic. In her testimony she said that D.S. struck her as hard as he could.

However, in her statement to police she stated that shedid not know with what force she was struck, as she “had a lot to drink.” When providing her statement to police S.S. thereforeacknowledged that her memory of the alleged event was impaired by alcohol. This may also explain her inability to say with anysemblance of precision when this alleged encounter took place. In her police statement she offered that she and a friend had “figuredout” that it was following a moose dinner in November 2018, and indeed the photos are date stamped in that month.

In her testimony,however, she said it occurred prior to her birthday on 3 September 2018 and most probably in May of that year. [84] Bearing in mind that we are not considering events that occurred years prior, some allowance must nevertheless be made forthe inability to describe precise dates and times. Here, however, the gap is substantial and while not determinative is nevertheless afactor to be weighed in the balance in assessing the reliability of S.S.’s testimony. [85] It will be observed that the Indictment refers to 16-17 January 2018.

However, the defence offered by D.S. was that on nooccasion did he strike S.S. Under the circumstances, time is not an essential element of the offence and I am satisfied that the defence’sability to make full answer and defence has not been impaired by the discrepancy in dates (see R. v. B.(G), (SCC),[1990] 2 S.C.R. 30.) In fairness, the defence did not suggest otherwise. [86] S.S. provided five photographs taken from her cellphone and bearing a date stamp of 20 November 2018.

They depict whatappears to be a small yellowish bruise on her upper right chest, and what S.S. described as a bruise on her left upper thigh. However,from the resolution of the photograph it is difficult to discern if this is in fact a bruise. [87] S. S. testified that she was struck over 100 times around the face and sides, yet there is no evidence of facial trauma. S.S.’stestimony that D.S. told her he would hit her where the bruises wouldn’t show is inconsistent with her testimony that he struck her aroundthe face “as hard as he could”.

I am therefore left to wonder if the attribution to D.S. is an attempt to explain away her lack of injury. Inany event, the photos are equivocal insofar as they are offered as evidence of an assault by D.S. When considered in the context of theremaining evidence they do not persuade me that this alleged bruising was caused by him. 28 January 2018 - Counts # 1 and #2 [88] With respect to the alleged sexual assault in January/February 2018, in her 6 March 2019 police statement S.S. said nothing

about having a pillow placed over her head, or waking up to find D.S. inserting his fingers in her vagina. Rather, she told the police that when D.S. came home he asked her to have sex and she said no. At first she could not recall if she may have gotten up to use the bathroom, but after a pause testified that she did not. The delay was such that I did not find this evidence convincing. [ 89 ] It is significant that S.S. testified and told the police that D.S. threatened that she would never see her daughter or her again, which she interpreted to mean that he intended to kill one or both of them.

While being assaulted all she could think of was getting her cellphone to call for help. When he was finished, D.S. left to go find a gun, leaving her with the opportunity to do so. If true, S.S. then believed that she and her daughter were in immediate peril. However, instead of summoning help, S.S. took the opportunity to speak on her cellphone with a friend.

It is not known what was discussed, but S.S. did not seek assistance or relate what had just allegedly happened. [ 90 ] I do not regard this scenario as analogous to a delay in the reporting of sexual abuse as referenced in D. (D.) , for if S.S.’s evidence is believed, both she and her daughter were then in immediate peril, she wanted to phone for help, had the opportunity to do so, but contacted a friend for reasons that are unclear.

This version of events, while not determinative in its own right, is one further consideration going to question the credibility of S.S.’s testimony [ 91 ] When determining the presence or absence of consent I accept that the approach is purely subjective, such that the actual state of mind of the complainant is determinative. That said, credibility of the complainant must still be assessed in light of all the evidence. In R. v.

Ewanchuk , 1999 SCC 711 Major, J. explained (at paragraphs 29-30): 29 While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. 30 The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant.

That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [ 92 ] Unlike the circumstances in Ewanchuk , I am not satisfied beyond a reasonable doubt that S.S. did not consent to the sexual encounter in January/February 2018.

Under the circumstances, the question of whether D.S. held a mistaken but honest belief in communicated consent does not arise, as there was no “mistake.” [ 93 ] I reach this conclusion based on my overall assessment of the credibility of S.S. and my acceptance of the evidence of D.S. regarding what actually happened on the evening in question, that S.S went to the bathroom first, opened her legs to receive his advance and that she attempted to insert his penis in her vagina.

The sexual encounter ended when D.S. found that he was unable to perform, precipitating an argument between the two and ending their sleeping arrangement together. It was, in effect, the final straw in an already strained relationship and I am not satisfied beyond a reasonable doubt that it was S.S.’s response to non-consensual sex, as she alleges. 16 April 2018 - Count #6 [ 94 ] I accept the evidence of D.S. regarding how the cellphone came to be damaged. Based on this evidence it is not clear who broke the phone, S.S. or D.S.

This is sufficient to raise a reasonable doubt as to the guilt of D.S. 9 August 2018 - Count #5 [ 95 ] Finally, it seems evident that one or more persons may have forced open the door, possibly by kicking it as alleged by S.S. One might be tempted to ask, if D.S. did not break in the door, then who did? Such a question, however, is to impermissibly shift the onus of proof to D.S. Overall, the inconsistencies and contradictions in the evidence of S.S. leave me not knowing what to believe of her evidence.

For this reason, I am not satisfied beyond a reasonable doubt that D.S. broke the door. disposition [ 96 ] For the foregoing reasons, I find the accused, D.S., not guilty of all charges on the Indictment. _____________________________ Donald H. Burrage Justice