Her Majesty the Queen - v. -, 2016 SKPC 150

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 150 Date: October 12, 2016 Information: 90014107 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.M. Appearing: Jennifer Hiatt For the Crown Catherine Maloney For the Accused JUDGMENT B. D. H ENNING , J [ 1 ] The person accused in this matter is D.M., charged that on or about the 15 th Day of October in the year 2015 at or near Regina, Saskatchewan, he did commit a sexual assault on V.B., contrary to

section 271 of the Criminal Code . The Crown proceeded by

summary conviction, and the matter came to trial on June 27, 2016 with Crown evidence, and was continued on July 20, 2016 for Defence evidence and argument. Decision was reserved.

SUMMARY OF EVIDENCE

[ 2 ] The first Crown witness was V.B., the complainant. She stated that the incident had taken place on the evening of October 11, 2015, not the 15 th as originally charged. The evening of the 11 th was the Sunday of the Thanksgiving weekend, but the exact days, whether this was on the Saturday/Sunday or the Sunday/Monday were not clearly or consistently identified by witnesses. She gave her age as 26 and stated that she was a social work student at the University of R[…]. She related a narrative that began with going out with friends, going initially to a bar called The F[…] on S[…] Street in Regina.

They were first on the patio with several persons she named who included ‘R.T.’ (R.T., a Defence witness) and ‘D.M’ who is the Accused, D.M.. They were in a relationship at the time. [ 3 ] For ease of reference, all persons will be referred to by their first names. V.B., the complainant, was with this group that included friends of friends, that is, persons she did not know prior to the evening. She indicated that they had drinks, and were there for an hour, but was unsure of the time and the exact number of drinks –“ two or three” at that stage.

She was not paying attention to R.T. and D.M, although she was seated next to R.T.. She stated that she was never alone with D.M, although they did talk. She does not remember their conversation in any detail. She did say another male person joined them, and she talked to him about some personal things, including an ex-boyfriend whom he knew. [ 4 ] V.B. indicated they went to other places in the same area, all on S[…] Street. She talked with R.T., who had an apartment with D.M, which was within the same block as the bar they were at. She and R.T. went to the apartment and they talked for a time.

More details of their conversation came out in cross-examination. At some point, R.T. said she had forgotten her purse, and she left to retrieve it, saying that V.B. should stay as she would only be gone a short while. They had gone to the apartment after 2:00 a.m., after ‘last call’. This time was later indicated to be somewhat earlier. While V.B. was away, she fell asleep on the couch. She produced a sketch of the apartment, P-1. [ 5 ] When V.B. woke up again, the lights were out in the apartment, and lights had been on before. D.M, she said, was on her.

She stated she had worn a striped top, a cardigan sweater and dark navy pants. When she woke up, she said her clothes were on, but her pants were pulled down to her knees. She had been wearing underwear, and that was pulled down as well. She said that she got up immediately and pulled her pants up. She grabbed her purse. D.M’s head had been between her legs when she awakened. His mouth was on her vagina, and he was ‘licking’. She terminated whatever was happening, by doing the actions she described, grabbed her purse, and left. She did not relate any conversation in her initial narrative.

She said she was upset and went out to Victoria Avenue, and she was crying. She said that a girl and her boyfriend in a car saw her, and offered a ride. They stopped and she allowed them to drive her home. They walked her to her front door. [ 6 ] At her place of residence she tried to call friends, and connected with a friend in British Columbia. This person called another mutual friend who was in Regina who came over to see V.B. at her residence. This was ‘N.A.’, who was N.A., the second Crown witness. N.A. called her husband, and after discussion, they went to the Regina General Hospital.

They were there about three hours. V.B. said she did not go to the police until the Monday (this may have occurred on early Monday), and then said that she meant the day after the long weekend, which would have been the Tuesday following. As stated, these events may have happened on the Saturday night/ Sunday morning, or the following day. This was never made entirely clear, but it is not, in my opinion, an issue that needs to be resolved as the events central to the case are not confused with any other incident on other possible dates. V.B. added some further detail at the end of her examination-in-chief.

She stated that she pushed his head away as she got up, and he said “I must have read the signals wrong”. She had never met him before that night. [ 7 ] In cross-examination more details of several bars were brought out, and details of conversation between V.B. and R.T.. Most of the time during which they spoke, D.M was not part of the conversation or in the vicinity. V.B. admitted there were parts of the evening that she could not recall, and she was “quite intoxicated”. However, she was not stumbling and she knew what occurred generally throughout.

She described events in more detail, including her visit to the hospital, where she discontinued the examination that was begun. The statement that V.B. gave was shown to her, which was given at a later time. She also said that six drinks is a lot of alcohol for her. She confirmed that she did not have conversation with D.M during or after the incident in the apartment, beyond the one remark she attributed to him. [ 8 ] The next witness was N.A. who indicated she had known V.B. for three years and that they were close friends.

She stated that she got a call from a friend who told her in a general way about V.B., and asked her to go over to V.B.’s place at about 3:30 a.m. She identified this as the night before Thanksgiving, which could mean either early Sunday morning, or possibly, early on Thanksgiving Day. She stated that when she went to V.B.’s, she was very upset and could hardly speak. She had been crying, and the witness had never seen V.B. like that before. They did not really know what to do, and so decided to go to the hospital, at about 3:30 or 4:00 a.m.

At the hospital things were also upsetting as V.B. was required to repeat her story to four or five persons. When asked about V.B.’s sobriety, N.A. said that she did not seem drunk. This closed the evidence for the Crown. [ 9 ] The case resumed with Defence evidence, beginning with R.T.. She indicated that she had been in a relationship with the Accused, living at S[…] Street in a third floor apartment, but that relationship had ended. She had worked that day at the C[…] restaurant

on S[…] Street and then gone to the F[…] for a drink after work which was four or five doors away on the same street. At that location she met V.B. for the first time. V.B. was with a friend of D.M’s. At the beginning she was with D.M, but they became separated. She was in proximity and in conversation with V.B. much of the evening. She knew other persons at the bar. She had six or seven drinks.

She said she only saw V.B. have two drinks, and they left about 1:00 a.m. together to go to her apartment. [ 10 ] V.B. had indicated to R.T. that she had issues with her present relationship and residence, and they talked of R.T.’s apartment and a possibility of moving in with R.T. and D.M. This was mentioned in V.B.’s evidence as well. At some point R.T. said she had to leave to pay her tab, or that she forgot something at the F[…]. She told V.B. that she could stay on her couch if she wished. She had no concern about leaving her at the apartment. She left and returned about 1:30 a.m.

She said she was not “completely wasted” and could function normally. [ 11 ] R.T. said that D.M returned around 2:30 and took a shower, and that she was in the bedroom. D.M came into the bedroom and no problem of any sort was apparent to her. No upset was heard by her, but she did indicate the television in the bedroom had been on. She did not recount what D.M said to her about V.B. until cross-examination. [ 12 ] In cross-examination it was brought out that they had first been to O[…], another bar adjacent to the C[…] where she worked. They then went to the F[…]. V.B. was with a male friend who knew D.M.

She was close physically to V.B. most of the night, but not to D.M. She indicated that she did not wear a watch, but she made various references to timings which I would infer were not very exact. She said that she and V.B. left about midnight, and that she, R.T., had six or seven drinks in the evening. She was intoxicated to some degree, but not extremely so. She again confirmed she had left V.B. on the couch when she went back to pay her bar bill. When she returned, she went directly to the bedroom without passing by the living room where V.B. would have been. She watched the TV, which was on low.

She referred to her statement given on or about October 15 th . Some minor discrepancies were pointed out, such as that she fell asleep rather than watching TV. She said she did not hear anything. It is possible that she both watched TV and fell asleep for some period. Little of significance turns on this, except when she states she heard nothing of anything occurring in the living room. [ 13 ] R.T. mentioned that D.M came in, and she was awake at that point. She asked him if V.B. had left, and he said that he had tried to wake her, and she had grabbed him and began to kiss him and undress him.

He had wakened her and she was aggressively sexual, and that he took

part in it. He apologized to R.T. for doing so. This version of events became the central Defence position. [ 14 ] The final Defence witness was D.M.. He gave his personal background, and confirmed that he lived in the apartment with R.T.. He indicated that he had played touch football in the evening before going to the F[…] where they met V.B. and others. He said that they all talked. He and R.T. had separated at the bar, but he saw her return to the bar, and they went back to the apartment together. This varies somewhat from R.T.’s evidence. He described the apartment.

He was going to have a shower, and R.T. turned on the TV. He went into the living room after showering, and V.B. was on the couch. R.T. had told him that V.B. was there. [ 15 ] D.M gives a very different version of events in the living room. He stated that the couch was L-shaped, and she was on the long side, and he sat on the short side. This couch is his bed, and she was asleep. He jostled here with his feet and she pushed away. He shook her shoulder and told her to sleep on the part of the couch that he had been on. She said not to worry about it, and leaned over to him and kissed him.

He said that he was surprised. There were three or four kisses. He said that she had expressed sexual interest in multiple persons when he was still at the F[…]. [ 16 ] D.M says that V.B. undid her jeans and pushed his face to her vagina to perform oral sex. This broke off abruptly, though, and details were not made clear. She then looked for her phone, and left, but before doing so, she asked him not to tell her boyfriend (whom he knew) that she had been there, and she was “scared to get caught”. She was not crying or upset. He then went to R.T.’s bedroom.

D.M was asked about numbers of drinks, and details of events at the bar, which were not fully consistent with what R.T. or V.B. had said. [ 17 ] In cross-examination, D.M again described how V.B. had found her phone, grabbed shoes and left without being upset. He was in shorts and a T-Shirt. They played a video game before things became sexual. They used headphones, so no sound would have been apparent. He said he always slept on the couch, and there were issues between him and R.T.. There was a second bedroom, but without a bed, and that might have been offered to V.B. if she were to move in.

He again stated that V.B. had expressed sexual interest in persons at the bar, and had been the one to initiate sexual behavior. They had performed oral sex, he said. His evidence on cross- examination was more detailed than on direct examination. Essentially, however, he denied any sexual assault, and stated that what occurred was extensive consensual sexual activity initiated by the complainant. LEGAL ARGUMENT

[18] The Defence argues that the evidence of D.M should raise a reasonable doubt, stating that it should be believed, or at leastshould be assessed as capable of belief, and thereby raising a reasonable doubt. The Defence asserts an honest belief in consensual sexualactivity. The Defence emphasized the possible effects of intoxication by the complainant, and other inconsistencies. [19] The Crown position is that there was no consent to sexual activity in the present case. The evidence of the complainant isclear and credible, in the Crown assessment, and should be accepted.

There was irreconcilable difference between the Complainant’s andthe Accused’s evidence. It was not questioned in argument whether the evidence of the Crown, if accepted, would constitute sexualassault, nor was it contested by the Crown that if the events were found to be as the Defence asserted, it would establish consent to whatoccurred, and be grounds for acquittal. The case therefore turns upon what evidence is accepted, or found to be capable of belief. [20] Both Crown and Defence acknowledge that there is no common ground with respect to the events in the living room and thereis direct conflict of evidence.

This raises the issue of the classic case of R v W.(D.), [1991] 1 SCR 742, (SCC), and othercases involving the consideration of conflictual evidence, which is particularly challenging in the context of sexual assault. [21] In the case of R v P.N.M., (1996), (SK CA), 141 Sask R 221 (CA), Tallis, J. in concurring reasons,observed the following in the context of conflictual evidence in sexual assault: In fact, both the Supreme Court of Canada and this Court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R. v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and R. v.C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given inthose two cases. The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R. v. W.(D.) at p.409. The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R. v.

C.W.H., at p.155: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

It was stated by Cory J. at the same page that this precise language is not required in every case. It should also be noted that Cory J. wasdealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflictingevidence of the complainant and the accused. ... This case also required a careful instruction on the burden of proof and reasonable doubt. The following passage from the decision ofCory J. in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742 at p.757 is apposite: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.), approved inR. v. Morin, supra, at p.357. In my opinion these observations apply with equal force to situations where the focus is on reliability as well as credibility. [22] The Crown has filed a number of cases for consideration.

Of particular value is the case of R v Morningchild, 2004 SKPC 39,where Nightingale, J considered the question of whether there was consent in a sexual assault case and reviewed the case law and theprocess of analyzing the evidence.

EVIDENTIARY ANALYSIS AND CONCLUSIONS [23] In considering the evidence, it is not sufficient for the court to simply choose one version over the other without careful anddetailed analysis to identify cogent reasons. Defence evidence may not be rejected simply because the court prefers the evidence of theCrown.

This is a case where there is some common ground with respect to the activities that led up to the alleged offence in the details ofwhere the parties were, the persons present, the general activity, and the development of the situation where the complainant was asleepon the couch in the apartment occupied by the D.M and R.T..

However, there is irreconcilable discrepancy and conflict over thequestion of consent to the activity that occurred, and the extent of that activity. [24] There is also further discrepancy over the evidence of the Accused in characterizing the complainant as having sexual interestin multiple persons at the bar, and the inference that might be drawn from that with respect to the Defence allegation of subsequentaggressive sexual activity. The alleged remarks of interest must come from conversation heard by the Accused. The evidence of R.T.and V.B. was that they were together most of the time at the F[…].

If remarks were made regarding multiple persons, then R.T. wouldhave been in position to hear at least some of them. Neither R.T., a Defence witness, nor V.B., place the Accused in a position tooverhear such remarks for most of the evening. R.T., though called by the Defence, was not directed to this issue or specificallyquestioned about V.B.’s expressions of sexual interest. This would be a significant occurrence to relate, if in fact it happened. Thepurpose of her being a witness was to assist in the determination of a charge of sexual assault.

She did not recount anything about sexualinterests by V.B., and she corroborates V.B.’s evidence that D.M was not in their company for most of the evening. I have no hesitationin rejecting this evidence of the Accused in this area, and further, and in so doing, it raises questions about credibility of other aspects ofhis evidence.

The Accused’s evidence in this area attempts, in my opinion, to depict the complainant as being sexually aroused andaggressive in order to bolster his version of subsequent events. [25] The Accused in evidence described a very different scene with the complainant acting as the sexual instigator. He narratedquite extensive interaction of a non-sexual nature initially, including playing a video game, and this detail does not detract fromcredibility.

However, his evidence of the activity suddenly turning sexual at V.B.’s instigation, but then almost as abruptly, beingterminated is not credible in the context of the evening as described by V.B. or R.T., in my opinion. Consensual sexual activity is notconsistent with what N.A. observed and recounted. D.M’s further statement that V.B. made a remark to him to keep the activity secretfrom her partner or boyfriend is not consistent with what she had indicated to R.T. about that relationship.

She had referred to somedifficulties in her present situation that she wished to change, and that was one reason moving into the apartment with R.T. wasdiscussed. A concern to keep information from this person is not consistent with her statements that suggest it was about to beterminated. [26] Apart from direct comparison of evidence, there are a number of techniques and approaches to analysis that can be helpful indetermining whether evidence has credibility.

It is, of course, trite to say that in the final consideration of evidence, the Crown mustconvince a trier of fact that all of the aspects of the offence charged are proven beyond reasonable doubt. The Defence evidence mayraise a reasonable doubt even if the trier of fact does not accept the evidence of the Defence, if it has the capability of being true, andwould render the actions of the person charged innocent. [27] I have noted a significant inconsistency in the evidence of the Accused at paragraph 24 above.

Not all inconsistencies are ofsignificance, however, and differences of details that ordinary lapses of memory in a complex series of events at some distance in timeare common, and indeed, may be considered at times as indicators of truth as they conform to ordinary human experience in suchmatters.

Thus errors with respect to the number of drinks, timings, the reason for returning to the bar by R.T., returning to the apartmenttogether (D.M & R.T.) or separately, occurrences at the hospital, and other details do not detract from the credibility of evidence of anyof the witnesses, in my opinion. [28] Other credibility considerations include the interest and possible motivation of the parties. The prime parties in a sexualassault trial are the Accused and the complainant. In the present case, the parties were strangers before the evening in question, and sopre-existing bias or motive is not present.

Neither gave evidence in such a way as to raise issues of credibility because of the manner oforal presentation. [29] The doctrine of recent complaint has been long removed from the law in Canada with respect to sexual assault. However,evidence of a complaint and demeanor may be considered as part of the narrative of the alleged offence, and this evidence from a thirdperson is admissible, not for the truth of what was said, but to show consistency and credibility of the complaint. See: R v R.D.A., 2015SKCA 100 .

This evidence is limited to statements made by a complainant that are closely connected to the occurrence, andmay be considered part of the overall narrative. In that case, it may have some weight to support evidence of the complaint whenbrought out in evidence of a third person.

[ 30 ] In this case, the only such evidence comes from N.A. who is a friend. She said that she was told of the incident, and she described V.B. as being very distraught and upset, which was consistent with what V.B. indicated after the event. It is not consistent with the narrative of the Accused who said the behavior was consensual, and that V.B. left without any indication of distress. I find this evidence from N.A. strengthens the complainant’s evidence. [ 31 ] V.B. described the events in a straight forward way, and she did not describe an event that has obvious internal inconsistencies or lack of coherence.

She did not give extensive or extreme details in her description of the events. She said that what she was conscious of was brief, and she terminated the unwanted actions immediately upon awakening. In my opinion, there is no lack of credibility in V.B. terminating the unwanted sexual assault and exiting the apartment as fast as possible, with a minimum of alarm, regardless of what internal upset she felt.

There are some persons who might react explosively, but there is no basis for ascribing any particular form of reaction in such a situation as being more or less credible. [ 32 ] There is a further detail that V.B. recounts that in my opinion has significance and credibility. After she pushed D.M away, stood up and fixed her clothes, she says that he said “I must have read the signs wrong”. This is a remark that might credibly be made after a sexual rebuff, regardless of how or why it occurred.

It would be consistent with him thinking, by an erroneous process, that she would be receptive to his sexual advance, but a rejection of sexual advances occurred. [ 33 ] V.B. said that she was upset and crying in the street, and her appearance was sufficiently obvious to attract help from another couple, which she described. There is no corroboration of this, but it is detail that is credible, and in my opinion, unlikely to be invented to add to a false complaint.

N.A., her friend who came over to her residence shortly after, also described a high degree of emotional upset consistent with V.B.’s evidence. [ 34 ] For the reasons discussed above, I find that the narrative of events by the Accused to show not only sexual consent, but aggressive sexuality by the complainant, is lacking in credibility. I do not accept his evidence that would make the sexual activity consensual. I accept the evidence of the complainant as credible. I therefore find the Accused, D.M., guilty of the offence of sexual assault, as charged.

Dated at the City of Regina, this 12 th day of October, 2016. _____________________________ B. D. Henning, J