Her Majesty the Queen - v. -, 2016 SKPC 98

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 098 Date: July 19, 2016 Information: 90101973 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.B. Appearing: T. Rock For the Crown J. Stockdale For the Accused JUDGMENT R.D.

JACKSON , J Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act .

I INTRODUCTION [ 1 ] The accused stands charged on or about the 10 th of July, 2015, at Kindersley, that he did, for a sexual purpose, touch A.M., a person under the age of 16 years, directly with a part of his body, to wit: touched her vagina with his hands, contrary to s. 151 of the Criminal Code of Canada .

[ 2 ] The charge arises from an incident at the accused’s trailer where the complainant alleges that she awoke when the accused had touched her vagina. The accused admits to physical contact by moving her and grasping her leg and shoulder and denies any sexual touching of any nature. [ 3 ] The Crown called the investigating officer, Constable Archibald, who took an audio visual statement from A., which was admitted as Exhibit P-1 by consent.

In addition, A.C., mother of A. and A. herself, testified on behalf of the Crown. [ 4 ] Defence evidence consisted of the testimony of the accused as well as a friend, Lois Hall. II ISSUE [ 5 ] The issues before the Court is whether the Crown has proven the requisite elements of the offence beyond a reasonable doubt, having due regard to the principles of R v WD [1] . III EVIDENCE [ 6 ] At the time of the incident Ms. A.C. rented a bedroom in the accused’s house trailer which she shared with her daughter, A..

Social gatherings were frequent including on the evening of the incident where several friends of the accused were gathered, including K., Shelley, Ches, Ms. A.C., her daughter A., and another young girl, J., daughter of K., who was staying for a sleepover with A.. The two young girls went to bed around 10:00 p.m. in Ms. A.C.’s bedroom. Ms.

A.C. testified that she tucked the two children in and noted that they were sleeping in a “T” formation, i.e. the friend lying in the normal position lengthwise on the bed and A. sleeping across at the end of the bed in a perpendicular manner. [ 7 ] At approximately midnight Ms. A.C. left to drive her friend, Ches, home since, in her view, he had consumed too much alcohol to do so on his own. [ 8 ] Information provided by A. in the police interview as well as her viva voce trial testimony conveyed that she was awoken by the accused when he touched and rubbed her vaginal area as he was standing next to the bed.

A. immediately kicked at him at which point he left the bedroom. [ 9 ] A. then ran out after him very upset and crying for her mother, stating “you touched me”. The accused denied that he did so and then asked whether he should call the police to which she replied “go ahead - you will be the one going to jail”. She then donned her bike helmet intending to leave on her bicycle to go find her mother. Shortly thereafter her mother arrived home whereupon she related what had occurred. She and her mother then left. [ 10 ] Ms.

A.C. testified that when she arrived to retrieve A. she said to the accused “you’re dead” after hearing A. say “he touched me”, at which point the accused simply held up his hands in a questioning manner. [ 11 ] Following this confrontation, Ms. A.C. took A. to the residence of Lois Hall where she and A. then resided thereafter. Ms. Hall testified that Ms. A.C. had shown up “in the middle of the night” very emotional telling A. to “go see Lois - she will protect you.” According to Ms. Hall, A. herself did not appear upset at this time. [ 12 ] Ms. Hall also testified that after this incident, Ms.

A.C. continued to frequent the residence of the accused for social visits which both the accused and Ms. A.C. also corroborated in their evidence. Although surprising, if not reprehensible, given the serious nature of the charge involving her daughter, the Court only references this to underscore that whatever impropriety or poor judgement

ascribed to the mother, her post-incident conduct is not the issue before the Court. Nor does it impact upon the credibility of the complainant. [ 13 ] In his evidence in-chief the accused testified that one by one the guests left, including Ms. A.C. after 11:00 p.m. to drive her friend Ches home. Throughout the evening he had consumed 8 to 10 beer in his estimation. [ 14 ] Around 2:00 a.m. he went in to check on the girls and found A. “half off the bed” at which point he hoisted her back up by placing one hand just above her knee and the other on her shoulder.

He denied touching her as alleged, not even accidentally stating there was “no possible way his hand could have slipped”. Further, she didn’t awaken when he did this. [ 15 ] It was about an hour later, according to the accused, that A. emerged from the bedroom inquiring after her mother. He stated that he didn’t know where she was whereupon A. became very distraught. He denied that she confronted him at this time about touching her and only found this out from the police the next day. [ 16 ] He then texted Ches to advise Ms. A.C. that her daughter was upset and she should come home.

When she arrived he stated “he didn’t even know what was going on”. He stated further that he didn’t hear anything said to him by A. [ 17 ] In the accused’s cross-examination much more detail emerged which included:

a) shortly after Ms. A.C. and A. left, J.’s mother K. “just came in, grabbed her daughter and left” without saying anything to him;

b) that when A. came out of the bedroom so upset, he “threatened about three times” to call the police because “she was crying and he didn’t know how to deal with it”;

c) he recalled A. saying “go ahead - you’re the one who will be going to jail”. His explanation for this was because he was teasing her about calling the police, he guessed;

d) that A. had awoken on other occasions when her mother wasn’t there, asked about her, and then simply went back to bed;

e) when A.C. arrived he heard her say words to the effect “you’re dead” after talking to A.. When asked by the prosecutor “so you do remember her saying ‘you’re dead’?” to which he replied “yah, I believe so”. A few minutes later in his evidence he stated “well I just heard her say it today in court”;

f) when asked why he didn’t just tell A. that her mother had left with Ches, he stated “I didn’t know she took Ches home” and then “I knew she had Ches’s phone”;

g) just before he checked in on A. and J. he had an encounter with K. in the kitchen as she was leaving where he hugged and groped her, reluctantly conceding that it was a sexual touch. . . “I had a few beers - just grabbed her butt”;

h) that he hadn’t told Ms. A.C. he was evicting them and that it otherwise was a pretty good living arrangement with them. IV DETERMINATION

[ 18 ] The Court has had the benefit of reviewing Exhibit P-1 and the trial evidence in its entirety. In all respects, the Court finds that A., notwithstanding her tender years, provided clear, concise and cogent evidence concerning the incident before the Court. Her answers were logical and consistent and did not in any sense appear to be rote or rehearsed. When she was unsure she simply stated that she didn’t know rather than taking any obvious opportunity to embellish or prevaricate.

Nor was she shaken in cross-examination as to her recollection of events. [ 19 ] Further, the evidence provided by A. accorded with the logical flow of the narrative generally provided at the trial. Examples of this included:

a) her immediate reaction to the incident was visceral - she became extremely distraught to the point of tears and immediately confronted the accused stating “you touched me” and “you’re the one going to jail”, the latter comment being corroborated by the accused in his evidence;

b) she was upset to the point that she donned her helmet and was prepared to leave immediately on her bicycle to find her mother. By contrast, the accused testified that on previous occasions when she had awoken asking after her mother, she simply went back to sleep when told that she was not there;

c) A. immediately communicated what had occurred to her mother upon her arrival without any opportunity to collude or discuss the incident otherwise in any fashion. She has been consistent in her narrative concerning what occurred from that point forward; and

d) there was no history of ill-will or animosity between A., or Ms. A.C. for that matter, and the accused. Indeed, it appeared that all had co-existed in a congenial and mutually beneficial living arrangement to that point. Although the accused testified he was planning on evicting Ms. A.C. and her daughter for rent arrears, he acknowledged this had not been communicated to her at the time of the incident. [ 20 ] The Court did not find the accused to be a believable witness. His answers in many respects were contradictory, evasive and without credibility. Examples included:

a) in examination-in-chief he testified that A.C. had left to take Ches home. Then, when questioned in cross-examination as to why he simply didn’t contact A.’ mother immediately when she appeared to be so upset, he stated that he didn’t know where she was;

b) his response to A. when she was so visibly upset asking for her mother to then ask whether he should call the police because he didn’t know how to handle the situation, in itself was bizarre to say the least. This is particularly so when viewed in light of his evidence that he knew A.C. had Ches’ cell phone and that he had actually texted her earlier to say the girls were asleep;

c) his evidence in cross-examination that he recalled Ms. A.C. telling him “you’re dead” when she came to collect A. after testifying in-chief that he didn’t recall any communication in the driveway. Further, a few minutes later he attempted an obvious back pedal by stating that he knew so because he heard her say this today in court;

d) his evidence that he didn’t know there was any problem until the next day when the police came after both A. and J. had been abruptly removed from the home;

e) his illogical explanation for A. stating that he would go to jail because of him teasing her about calling the police. [ 21 ] The Court also notes that the accused admitted to drinking eight to ten beer that evening. Further, just prior to “checking in on A.” he had hugged and inappropriately touched the buttocks of K., a 20-something acquaintance who was just leaving the residence.

[22] In all respects, the Court has no hesitation in accepting and preferring the evidence of A. regarding what transpired thatevening. Where such testimony conflicts with the testimony of the accused, her evidence is preferred and his evidence is rejected by theCourt. [23] This however does not end the matter. Because the accused has testified in his own defence, the Court must consider andapply the principles of R v WD. Simply stated, it is not merely a credibility contest between the complainant and the accused todetermine which is to be preferred.

The Court must first assess whether the evidence of the accused is believed, and if not, whether, onthe whole of the evidence, accepted by the Court, a reasonable doubt has been raised as to the guilt of the accused. [24] As noted, the Court does not believe the evidence of the accused. The Court then turns to the balance of the evidencepresented which the Court does accept. The complainant was unequivocal in her description of what the accused did. She stated that itcould not have been an accident.

She identified the accused as the perpetrator, reacted in a manner that would be compatible with suchan incident and immediately confronted the accused. Her description of the exchange between them was compelling and logicalcompared to the illogical, if not nonsensical, recounting by the accused. She had no axe to grind and did not in any respect appearvindictive toward the accused. Simply put, there was nothing in her evidence or that of the accused or other witnesses capable of raisinga reasonable doubt concerning the guilt of the accused.

V CONCLUSION [25] The complainant has testified that she was awoken by the accused rubbing her vagina. She testified that this could not havebeen by accident. The accused admitted to touching the complainant “above the knee” but denies any touching of the complainant’svagina - even by accident. As indicated, the Court prefers and accepts the evidence of the complainant.

Accordingly, the Courtconcludes that the accused touched the child complainant deliberately for a sexual purpose and is therefore found guilty of the chargepreferred on the Information contrary to s. 151 of the Criminal Code. ____________________________ R.D. Jackson, J [1] (2008), 2008 ONCA 268 , 79 WCB (2d) 80, [2008] OJ No 1356 (CA)