Her Majesty the Queen - v. -, 2012 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 138 Date: August 17, 2012 Information: 24408868 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Cameron Duke Appearing: Mr. D. Brule For the Crown Mr. J. Deagle For the Accused JUDGMENT B. D. HENNING , J [ 1 ] Mr. Duke is charged with the offence of sexual assault alleged to have occurred at or near Craven, Saskatchewan on July 9, 2011, on C.B., contrary to

section 271 of the Criminal Code . The matter was proceeded with by

summary conviction, and a trial was held in Regina on January 31 and March 28, 2012, with argument presented on April 30, 2012. [ 2 ] The events occurred in a campground, and in the area surrounding it, located in the Qu’Appelle Valley near Craven. The Complainant and the Accused were spending a weekend at the park there and were at campsites relatively near to each other. Ms. C.B. was camping, with a family named McConnell, which consisted of a husband and wife, and three young children. Ms. C.B., and a friend of Ms. C.B.’s were present that weekend with them as guests. Mr. McConnell and Mr.

Duke worked together and the two families were known to each other, but Ms. C.B. was not known by Mr. Duke prior to that weekend.

[ 3 ] The alleged assault occurred in the course of a ride, and a stop during the ride, on a quad vehicle that Mr. Duke owned, and was giving a ride on to the Complainant. Pictures of the vehicle in question were presented in evidence as D-2. The other teenaged girl also was given a ride, but no complaint emerged from it. Evidence was presented by the Complainant through a videotaped statement made shortly after the alleged incident and in ordinary courtroom testimony. Ms. Kimberly McConnell also testified, as did Mr. Duke. THE EVIDENCE [ 4 ] Ms. C.B. adopted evidence of a video made shortly after the incident.

She watched the video in the courtroom prior to giving viva voce evidence, and the courtroom evidence, not surprisingly, did not vary significantly from the videotaped statement, except that more detail of the events was elicited in the courtroom evidence. The video evidence was adopted pursuant to

section 715.1 of the Criminal Code . The video was taken shortly after 7:00 p.m. on the date of the incident, which occurred about 5:00 p.m. [ 5 ] Ms. C.B. stated what had occurred in a clear, unemotional manner, without any sign of distress. The camera angle looked down on the interview scene from above, and did not permit any clear view of her face during the interview which was conducted at the Lumsden Detachment of the RCMP, and lasted less than twenty minutes. [ 6 ] Ms.

C.B. indicated that she had been out on the weekend with a family for whom she did babysitting and that she went for a ride on a quad—a small, four-wheeled off-road vehicle. Her friend went first, and she went second. She said the driver flirted with her, and there was flirtatious conversation during the ride, and then at one point he stopped the quad, got off and assisted her with cleaning off mud, and she did not like his touching of her. This person was the Accused in these proceedings. There was no issue of identity.

She said he told her he found her ‘very cute’ and kissed her, several times, saying that she was ‘so darn cute’. She had been riding on the vehicle sitting behind him, and he went over bumps which caused her to fall forward into him. After this stop, they returned to the camp. She said on the video that when they returned to the camp she was not very happy, and that she told Kim McConnell about it. (More detail will follow regarding the complaint, and Kim McConnell also gave evidence.) [ 7 ] In the video the interviewer asked for more detail of the touching, and she indicated that on the quad, Mr.

Duke reached backward and squeezed her thigh. She added that when he helped her on the quad he touched and rubbed her breasts over her clothing. She said she was kissed on the lips and on the neck, and he said not to tell anyone about it. She had only met him that day. Ms. C.B. adopted the video statement and was asked additional questions by both the prosecution and defence counsel regarding details of the event.

In giving her courtroom evidence, her manner was confident, with some impatience over the questions, and, as in the video interview, it was without any indicators in her voice or manner of emotional distress giving her statement. [ 8 ] Ms. C.B. provided more detail of the route, and said she felt the ride went on for an hour, though it did not. They stopped in an open area during the ride. After returning to the camp, she went for a shower with Christina, her friend, and then talked to Kim McConnell. She stated that when she spoke to Kim, she was crying and her nose was running.

She stated she was reluctant to speak in the video, although that is not apparent. She stated that as a result of this incident she ‘lost all her friends and family’, but did not elaborate on that statement. It came out in examination that she does not live with her family, and began living with the McConnells shortly after this incident. She said that she wore a helmet during the ride that was supplied by Mr. Duke. [ 9 ] In cross-examination, Ms. C.B. said that she was kissed while sitting on the quad, and that the Accused was standing and ‘spun her around’ on the seat, and was consequently facing sideways.

However, it must be noted that the handholds on the side of the seat, which are readily apparent in Exhibit D-2, which will be referred to in more detail, would not make such a position easy or comfortable to assume in the manner described. She went on further to suggest that during the ride the Accused had deliberately gone over bumps to force her to fall forward against him. When shown D-2, which included a picture of the vehicle in question, Ms.

C.B. stated that she did not hold onto the handlebars, but onto the seat only. [ 10 ] It is noteworthy that in the photographs the second passenger seat is separated significantly from the driver’s seat, and the arrangement is not at all like on a motorcycle where the passenger sits directly behind the driver. The passenger seat in the quad is angled backward to make the passenger lean backward against the backrest.

Moving forward, though not impossible, is contrary to the obvious design of the seat which appears to make the passenger more secure by sitting at an angle where gravity would keep the person against the back of the seat. Further, not to use the handles provided for stability is not logical, safe or convenient. In giving the statement at the police video interview, it is apparent that Ms. C.B. may not have remembered them, as her description does not take them into account. They would have been difficult not to be a factor in the mechanics of what she described, if it occurred in the manner described.

[ 11 ] Ms. C.B. was questioned about wearing a helmet, and one was produced which had a prominent chin guard and visor, but she could not identify it. It is apparent that in order for any kissing to occur, both would have had to remove the helmets they were wearing. It was not challenged by the prosecution that the helmets produced by the Defence were similar to the ones used on the day in question. [ 12 ] Ms. C.B. indicated that she remained for the balance of that weekend at the camp, and returned a number of times again over the summer.

She stated that she pretended nothing had happened, and spent most of the weekend with the younger children rather than the adults. [ 13 ] The second Crown witness was Kimberly McConnell. She said that her family’s quad was not functional that weekend, so Mr. Duke was asked to give the girls a ride. The two families had socialized the evening before at the campsite. She indicated that the rides were about half an hour, or slightly longer, and that the other girl went first. Ms. McConnell stated that when Ms.

C.B. returned, she sensed something was wrong, and spoke with her, and that she broke down in tears doing so. She stated that she then went to Mr. Duke at his campsite, assaulting him and calling him a ‘son of a bitch’. Mr. Duke denied wrongdoing to her. Nothing turns upon this confrontation. Ms. McConnell said that Ms. C.B. had related the events to her within one half hour of returning from the quad ride. [ 14 ] Ms. McConnell went on to describe how upset Ms.

C.B. was, but that was not apparent in any way in the videotaped statement which took place less than two hours after the event, and probably less than an hour after Ms. C.B. had related the incident to Ms. McConnell. Ms. McConnell was very adamant in her testimony, and it is apparent she has great sympathy for Ms. C.B., who came to live with her family the following week. By her conduct on that evening, and in weighing her testimony, I conclude she has animosity toward the Accused and sympathy for the Complainant. [ 15 ] The only Defence witness was the Accused.

He indicated that he rents a campsite for the season and he goes out there most weekends, and he knew the McConnells through working with Aaron McConnell. He only met Ms. C.B. that weekend. He described the day and how it came about that he took them for a ride. He took the first girl out and he said that she did not mind getting dirty, and going through puddles. On returning to the campsite, the Complainant got on after putting on running shoes rather than ‘flip flops’. [ 16 ] Mr.

Duke indicated that the machine was very noisy, and that, with the wearing of helmets, those two factors combined to make conversation impossible. He described how they went driving, going through mud, and after becoming soiled, had stopped. He had followed a path to a nearby lake front, where they could wash off with water. He indicated that Ms. C.B. stayed on the quad, initially, and then got off, half falling. At the stop, he said that they talked about her school. He said she took off the helmet and washed it. Mr. Duke recalled he said that he had a daughter her age.

He said that she had trouble putting the helmet on again, and perhaps assisting at that point, he gave her a ‘peck on the cheek’, and that they proceeded back to camp without further incident. [ 17 ] At the McConnell camp, Mr. Duke said he stayed about fifteen minutes, and went back to his camp to clean up. An hour or so later, he said that Kim came ‘storming up’ and ‘kicked him in the ass’, saying to ‘never touch her girl again’, and that she then stormed off. He was still in his campsite some time later when two police showed up and arrested him, which was done in view of the entire campsite area. [ 18 ] Mr.

Duke demonstrated a helmet of the type that he said was worn, and this was not challenged. He indicated that helmets were removed only at the stop. Mr. Duke went through some photographs of the quad vehicle in question which have been referred to as D-2. He also identified some other photographs, part of the same exhibit, that showed the route they had taken, including where they had stopped, in an open area by the lake front, which was not at all secluded.

I accept that with the helmets in place, and the vehicle operating, speaking and hearing between the driver and passenger would be very difficult, and conversation of any complexity would have been impossible. [ 19 ] Mr. Duke returned to the incident of the brief kiss that he had admitted to giving, and said that he felt comfortable doing so as he knew a relative well of Ms. C.B.’s and they had talked of him. It was, he said, to him, innocent, and by saying this, by suggestion, he asserts it was non-sexual, and that she giggled when he did it. He denied any other touching.

Alcohol does not appear to have been a factor in whatever occurred. [ 20 ] Mr. Duke was extensively examined about the weekend and the incident. At the time of the washing off of mud, he denied any touching. He stated the road was indeed bumpy, but he specifically denied other touching or the fact Ms. C.B. was thrown up against

him during the ride. He also denied flirtatious behaviour or language. He indicated that they were never more than two miles from the camp, and they were gone about one- half hour. He did say that in their conversation at the lakeside she said she had a boyfriend, and he denied any extensive discussion of that topic. Many propositions were put to Mr. Duke in cross-examination that were denied, including ones that had not been indicated by the Complainant. ARGUMENT, CONSIDATION OF EVIDENCE AND FINDINGS [ 21 ] Transcripts of evidence were available at the argument of this matter on April 30, 2012.

The Crown argued that Mr. Duke has an interest in avoiding or minimizing criminal responsibility, and is not credible in any of his evidence. The Crown asserts that the Complainant is entirely credible, and has not exaggerated the incident, and that issues relating to credibility should be resolved in her favour. [ 22 ] The Defence emphasized differences between the video statement and in-court testimony of Ms.

C.B., but other than adding detail, those differences are not of significance, in my opinion, and it is common for a witness who is trying to be honest and complete in testifying to add details after there is opportunity to reflect upon events. There are, however, some parts of the Complainant’s story, and details that are difficult to accept given certain physical factors in the vehicle and equipment. [ 23 ] Ms. C.B. indicates that significant remarks of a flirting nature occurred during the ride.

However, I accept that the helmets and noise of the machine would make conversation difficult, and exchanges of some detail with sexual content are unlikely. Further, the distance between the passenger and the driver is substantial, quite unlike on a motorcycle, and it is unlikely that a passenger would be thrown forward into the driver except in the most violent shaking of the vehicle. Bumps, would not, in my opinion, cause this to happen.

As well, owing to the distance between the two parties, reaching back to the thigh of the passenger would be difficult, though perhaps not impossible, but would require an exaggerated turning motion to effect it. I find that Ms. C.B. is not credible in this part of her testimony. [ 24 ] There was extensive argument over the fact that Ms. C.B. ‘carried on’ over the weekend, and did not exhibit emotion or upset, except as described by Ms. McConnell. Her flat and unemotional manner is recorded in the video statement that has been exhibited.

The emotional state of a Complainant is, of course, highly variable, and an absence of high emotion does not necessarily weaken testimony. But Ms. C.B.’s video statement gives nothing in support of Ms. McConnell’s description of strong emotional reaction a short time before. Ms. McConnell is a friend and supporter of Ms. C.B., and obviously accepts her version of events entirely. In Court, Ms. C.B.’s evidence was coloured more by mild impatience than with any emotional effect caused by recollection of unpleasant events. [ 25 ] Even if the events at the stop, where Ms.

C.B. describes a quite clear sexual assault through kissing and touching of her breasts is not entirely accurate, it is clear that whatever occurred was sufficient to give offence to her, and cause her to launch a complaint with police. Because I have concluded that I must reject some parts of Ms. C.B.’s evidence as outlined above, I have doubts about the accuracy of her evidence in other aspects, including the events at the stop by the lake.

I accept that something did occur which precipitated a complaint of assault to the police, but I am not convinced beyond a reasonable doubt, or even on a balance of probabilities, that the assault occurred during the stop by the lake as extensively as Ms. C.B. has indicated. I am further reinforced in this conclusion by the effect of the hand grips that I have discussed above, and which would have made it difficult for some details of the incident to have occurred in the manner suggested by her.

As a result, I do not accept that touching occurred during the ride, and I am not convinced to the criminal standard of proof that touching on the breasts and kissing occurred in the manner described by the Complainant. [ 26 ] Nonetheless, it is clear from the fact of the complaint, and from Mr. Duke’s own evidence, that something passed between the two parties that was taken by Ms. C.B. to be offensive and sexual in nature. The Accused has admitted to a brief ‘peck’ or kiss during the stop.

I am not able to conclude to the required standard of proof, however, what more may have happened due to the difficulties I have with Ms. C.B.’s evidence, as outlined above. [ 27 ] A ‘social kiss’, which may be the sort of ‘peck’ described by Mr. Duke is often exchanged as a form of friendly and non- sexual greeting between a man and woman. However, such a thing, in my opinion, is not common on short acquaintance, and especially not between persons of large age difference such as exists here. Mr. Duke is 42 years old and Ms.

C.B. was age 16. [ 28 ] There had been personal conversation at the stop over a mutual acquaintance or relative, about school, about a similarly aged daughter of the Accused, and possibly other subjects. I am not convinced beyond reasonable doubt that the conversation went as far as Ms. C.B. indicated about her attractiveness, or of other sexually suggestive remarks, but some conversation occurred which set the stage for Mr. Duke taking the liberty of what he describes as a ‘peck’.

This kiss involved some degree of touching, and I believe that this act must be examined for sexual content, and consider whether it constitutes a sexual assault under the circumstances.

THE LAW [29] Cases that examine the nature of sexual assault are relatively few. In this case, where the offence is at the lower end of thecontinuum from simple assault through major sexual assault, it is helpful to consider comments and guidance from other courts. Thecase of R. v. Cook, (BCCA) contains the following comment on the then relatively new amendments to the law withrespect to sexual assault: [43] The Burden case also provides the foundation for my second conclusion.

It is that a mere touching, if it is intentional, may,depending on the circumstances, be an exercise of sufficient force to fulfil the requirement of all the offences of assault, that force mustbe applied. If a light but intentional touching may constitute an assault, then I think that a light but intentional sexual touching mayconstitute a sexual assault. On the basis of that premise an approach to the offence of sexual assault is required which will avoidtrivializing the offence by categorizing each uninvited kiss or caress as a sexual assault, or even as a simple assault.

I do not think thatprosecutorial discretion is an acceptable solution. The better approach, to my mind, rests on a theory of implied consent to an initial mildsexual touching, if preceded by a sufficient acquaintanceship. Thereafter, there would be an implied consent to each farther reasonableadvance in touching, until such time as consent is explicitly refused. Thereafter, any touching to which consent had not been given wouldconstitute a simple assault or a sexual assault, depending upon the touching. [44] I do not propose to offer a definition, where Parliament has declined to do so.

But I do not think that the characteristic that turns asimple assault into a sexual assault is solely a matter of anatomy. I think that a real affront to sexual integrity and sexual dignity may besufficient. [30] Other cases have dealt with what constitutes a sexual assault at the minimal end of the scale. In R. v.

Ashby, ,(SKQB), Schwann J. observed in upholding the findings of the trial judge: [9] After making these findings of fact and reviewing the relevant law, the trial judge concluded at paragraphs 88 and 89: Applying the law to this charge of sexual assault, and the reasonable person test, in these particular circumstances, the nature of thetouch to the thigh, with some pressure, in the context of the conversation and suggestions by the accused, in a situation where [K.H.] felttrapped, I conclude that [K.H.’s] sexual integrity was violated.

Basically, it was a situation of sex for money, or in this case, forgivenessof a debt. It is my conclusion these words and gesture, in these circumstances, are properly within the definition of sexual assault pursuant to s. 271of the Criminal Code.

Violation of sexual integrity of a woman occurs when, as in this case, an initial sexual assault is used to explorethe possibility of further sexual contact. [31] Applying these general principles regarding touching that violates the sexual integrity of the person, I am of the opinion thatthe physical exchange between the Complainant and the Accused, which he describes as an essentially non-sexual ‘peck’, was anoffensive touching with sexual character that constitutes a sexual assault; the entire circumstances support this finding, in my opinion.

The kiss that occurred was between persons of substantial age difference, who had only met that day, and there was no significant contactor acquaintance, or existing family relationship, that would justify this familiarity as a social exchange.

It happened in the middle of arecreational event; it was not in the context of a greeting where such an exchange might be considered appropriate to a reasonable person.The offence does, however, fall at the less severe and intrusive end of such offences, although it was offensive to the Complainant. [32] I find the Accused, Christopher Duke, guilty of the offence as charged. Dated at the City of Regina, in the Province of Saskatchewan, this 17th day of August, 2012.

__________________________ B. D. Henning, J