Her Majesty the Queen - v. -, 2017 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 062 Date: July 28, 2017 Information: 44662798 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Harley David Moses Appearing: Sheryl Fillo For the Crown Patrick McDougall For the Accused Note: Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant, and any information that could disclose the identity of the complainant, shall not be published in any document or broadcast in any way. JUDGMENT D.A.

LAVOIE, J. [ 1 ] The accused stands charged as follows: on or about the 30th day of June, A.D. 2012 at or near Saskatoon, Saskatchewan did commit a sexual assault on R.D. contrary to

Section 271 of the Criminal Code . Background

[ 2 ] This trial has a number of unique evidentiary and time delay elements to it, such that the Court feels it would be useful to relate background information to put all matters into proper context. [ 3 ] The date of the alleged offence is June 30, 2012. The Information was sworn on June 30, 2012. The record discloses that after arrest, the accused was released from custody that same day, upon entering an Undertaking to appear in court on July 30, 2012. On July 30, 2012 the accused failed to appear before the Court and a Bench Warrant for his arrest was ordered.

It appears the whereabouts of the accused remained unknown until one of the accused’s friends, who was also a witness of the incident on June 30, 2012, met the accused by happenstance sometime in 2015 in Whitehorse in the Yukon Territory. [ 4 ] It would appear from that encounter the outstanding Bench Warrant was acted upon, as the accused was arrested and released on an Undertaking entered into on May 24, 2015 in Whitehorse, to attend court in Saskatoon on June 18, 2015.

The accused did not attend court on June 18, 2015, however, due to technical errors apparent on the face of the Whitehorse Undertaking no Bench Warrant was ordered. [ 5 ] The record discloses further attempts were made to serve the accused with effective process, with the accused finally being before the Court in Saskatoon, while in custody, on October 24, 2016. The accused was released from custody again on November 4, 2016. On December 21, 2016 a trial date was set for May 3, 2017, which in fact proceeded on that date.

The Court enumerated the procedural history of the matter, to put in context, witnesses commenting on lack of recollection of some details due to the elapse of some five years from event date to trial date. The Facts [ 6 ] The following is a

summary of the evidence forthcoming from the witnesses at trial. [ 7 ] Ms. Lynn McNeely, an adult female, was the owner of a two story house at 524 Avenue I South, in the City of Saskatoon. She had a number of young males living in the residence at the time. Jeremy McNeely, her son, who was aged 18 on the date in question. Michael Wolf, who was renting the upstairs second floor which consisted of a moderate small kitchen, one bedroom which had been converted to a sort of living room with a couch as basic furniture. This is the room where the alleged assault took place.

One bedroom, across the hall from the livingroom. One other bedroom used for storage and one washroom. Ms. McNeely occupied the main floor which had a kitchen, bedroom, livingroom, and a washroom. Her nephew, Brandon Caplette, was residing temporarily with her and he slept on the living room couch. Her son, Jeremy McNeely, slept in a converted area in the basement. Also, the accused, Harley Moses, was residing in the home as he had no place to stay.

She allowed him to reside temporarily on the understanding he would pay a monthly room and board. [ 8 ] On the night of June 30, 2012 she had allowed the young men to have a party in the residence. Between 10 - 20 people came and left the party at various stages, with the majority of the alcohol drinking and socializing taking place in the living room on the second floor. Ms.

McNeely stated she kept a close watch on the activities by going up to the second floor every 10 to 20 minutes to ensure the music was not too loud, and more specifically to monitor possible drinking and driving when the young people left to go home. Transcript page 100 - Lynn McNeely Q Okay. So on that particular night, there was a party? A Yeah. Q And were you up when that party was going on? A I don’t sleep until I know everybody is either passed out or gone home, or I get the keys, because I won’t allow anybody drinking and driving, at all.

Q Okay. And so – A I’m a stickler when it comes to stuff like that. Q –so did you see people coming and going at your home, or – A Yes. Yes. And – Q And was there people that you knew, or people you didn’t know? A There was some people I didn’t know. Q And was there a particular time when most people left, or do you recall the end of the party, or – A Oh, geez, I would probably say between 2:30 and 3:00 in the morning, everybody started leaving.

Q And do you go around to check – A Oh, yes. [ 9 ] The Court will now set forth the evidence of each witness to establish a chronological sequence of the events as they unfolded. [ 10 ] Jeremy McNeely, son of Lynn McNeely, the adult female who was in charge of the house testified he was 18 years of age around June 30, 2012. He had been sleeping in the basement when he woke up about 4:00 a.m. He heard activity and went upstairs to the second floor to discover there had been a house party which was now winding down.

He hung around for a while then went back down to the main floor and eventually the basement where he slept. He had drank no alcohol. He has known Harley Moses for a number of years since they were in grade 8 or 9. He saw Harley upstairs and felt Harley was fairly intoxicated. Transcript page 137 Q Okay. And what condition was Harley in that time? A He was blacked out drunk. Probably one of the drunkest times I’ve ever seen him. [ 11 ] Someone introduced Jeremy McNeely to R.D. (the alleged victim) whom he met for the first time that night. Nearly everyone of the attendees at the party appeared to have left.

He felt it was Harley’s and Michael Wolf’s (who rented the upstairs) party. The transcript sets forth his observations and movements over the next hour or so. Transcript page 138 Q All right. And had you ever met R.D. before that night? A Negative.

Q Pardon me? A No. Q Where was you – where was she when you first saw her? A Face first, laying on the floor. Q Okay. And when about was that do you think? A I don’t know. Later. Q Where was she at that point? A On the floor. Q but where? What floor and what room and – A The same room that this happened in. And – Q Okay, what level of the house? Transcript page 139 A Upstairs. Q The upstairs? A Yeah. Q And what is the room – what would you call that room? What’s in the room? A Just a couch. Q Just a couch. A Some end tables. Q Okay. So, in the room upstairs it has a couch.

Is there any other rooms upstairs that have a couch? A No. Q Okay. And when you first saw her, she was face first laying on the floor? A Yeah.

Q And was she conscious or unconscious? A She was unconscious. Q And what did you do? A Me and somebody else picked her up and put her on the couch, when everybody else was leaving, because it was the polite thing to do. Q Okay. So – so everyone else is leaving, and you and someone else picked her up and put her on the couch. A Yeah. Q And how did you lay her on the couch? A I don’t know, I just grabbed her feet, they grabbed her hands. Q Mmhmm. A Just tossed her up there. Q Okay. And what – was she wearing any clothing at the time that you saw her? A She was fully clothed. Q Fully clothed, okay.

Do you recall where Harley was at the time that you Transcript page 140 were doing that? A No, I don’t recall at that particular time. Q Okay. Do you recall who was the person that helped you put her on the couch? A No, I don’t. Q Okay. So you say everyone else was leaving, and that was the polite thing to do. So when you left that room, who was left in there? A Hmm? Q When you left that room – A When I had left the room, nobody was in the room. Q Okay. But I’m asking, was R.D. still on the couch?

A Yes. Q Okay. A Yeah. Q But no one else when you left the room? A No. Q And was she awake at all when you were in that room? A No. Q So you go where then? A Downstairs. Q Okay. And what are you doing downstairs, and – A I was talking with my mom and Mikey. And then, I was wondering where Harley was, and that’s when I went up to check, and I found him. Q Okay. How long had Harley been gone that you – you say you were wondering where he was? A Fifteen, 20 minutes. Q Pardon me? A Fifteen, 20 minutes. Q Fifteen, 20 minutes? Transcript page 141 A Yeah. Q Okay. And so you went up to check, and where did you go to? A The upstairs room where we laid R.D. on the couch.

Q Okay. So tell us about that. A Well, I had opened the door, and then I seen him there with his pants off, and her clothes– Q When you say “him”, you’ll just have to use – A Harley. Q You see Harley there with his pants off. A And R.D. with her pants off. And then, he stared at me like a deer caught in the headlights for a bit. And then I closed the door, ran down the stairs. I grabbed Mikey, I was kind of freaking out, and I didn’t really know what to do. And, me and Mikey went upstairs, and – Q Okay. A –yeah. Q So let’s just go through this a bit more detail. You say you opened the door, you saw Harley.

Where was he? A He was sitting next to her while she was lying down on the couch. Q So she, and is that R.D. we’re talking about? A Yes. Q Okay. She’s lying down on the couch. Is she conscious? A No. Q What position was she in? A Facing away from me. Faced towards the back of the couch in the fetal position. Q And where, exactly would Harley be compared to her? A He was sitting up right next to her at her feet. Q Can you tell us how close their – their bodies or body parts were to each other? A They were touching. They were touching. Transcript page 142

Q So what parts of the bodies were touching? A His – her feet were touching his thighs and legs. Q And so, when you opened the door, do you make eye contact with anyone? A Harley. Q Do you say anything to him at that point? A pardon my language I said, “What the fuck?”. Q Okay. Did he respond? A No. Q What did you do then? A I ran downstairs. Q Okay. So you ran downstairs, you said, and you got Mikey? A Yeah. Q Where was he? A He was downstairs talking to my mom, where I had previously been. Q MS. FILLO: Okay. So you get Mikey, and the both of you come back upstairs? A Yeah. Q And so, what happens then?

A Well, there was a lot of yelling. Mikey lost his shit – sorry. And – Transcript page 143 Q Okay. What’s Mikey yelling and at who? A Mikey was yelling at Harley. Q At Harley. Do you recall anything particular he was saying? A No.

Q And is Harley responding at all? A No. Q Does R.D. at all wake up during this? A No. Q So what happens next? A I got my mom – well, we kicked Harley out of the house. A Yeah. Yeah. Well, I went and got my mom to like throw a blanket on her, but that was already after we had kicked Harley out of the house. Transcript page 144 Q So who was involved in kicking him out of the house? A Me and Mikey. Q What about our mom, where is she? A She was up there with us. Q Okay. So that’s why I want to go in order. So you went and got your mom? A Yeah.

Q And I said, did you physically go and get her, or did you yell for her, or how? A She might have already been up there. It was like five years ago. Q Okay. So at the time that you recall the three of you, you mentioned Mikey, yourself and your mom being involved in kicking him out? A Mmhmm. Q And where was Andre, do you recall? A In the room across the hall. Q At some point, did he come out of that room? A Yes.

Transcript page 145 Q Okay. Did anyone do anything in relation to R.D.? A What do you mean? Q Well, she was upstairs. Did she ever wake up – A No. Q –when you were there? A No, she was unconscious the entire time – Q Okay. A –until the ambulance came. Q Did anybody try talking to her or anything like that, or try – A No, I – Q –that you – A –just got my mom to throw a blanket over her, and then we just left the room, because at that point, it was a crime scene, so – Q Okay. And so, were you present when police arrived? A Yeah. Q And did you go back upstairs with police at all? A No. Transcript page 146 Q Okay.

After this particular day, did you ever see Harley after that? A Yes. Q When was that?

A That was – it would be a year and a half, almost two years ago, in Whitehorse, Yukon. I was up there for some work with West Tower Communications. Q Oh, okay. A And I had ran into him in town. Q And you ran into him. Did you ever speak about this incident? A Not that particular day, no. Q Okay. Did you ever speak to him about this incident on any other day? A yes. Q When was that? A A few weeks ago. Q Where was that? A In my truck. Q Where were you? A Driving around. Q What – what – in Saskatoon or someplace else? A Yeah, in Saskatoon. Q Okay. What was this about then?

A I asked him if he had – if he wanted me to tell him what happened, and he said he’d rather not. Q Okay. Before that, how does the conversation start? A I think I just bluntly brought it up. Transcript page 147 Q Pardon me? A I don’t remember exactly what he said. Q Okay. Did he give you any details, or what – A No. He said he didn’t remember.

Q He said he didn’t remember, and you asked him, did you want– A Me to tell him. Q And what did he say? A He’d rather not. Q He’d rather not. And that was the conversation? A That was pretty much it, yeah. Transcript page 148 Q So the first time when you walked in, tell us exactly what Harley’s position is, what he’s doing? A Well, he was sitting in the same spot. But instead of sitting upright, he was hunched over R.D. a little bit. Transcript page 149 Q MS. FILLO: Could you see whether he was touching her or not, or the arms just reaching out? A No, he sat upright fairly quickly after I opened the door.

Q Oh, okay. So you opened the door, he sits upright. Does he say anything then? A No. He never said a word to me throughout the whole thing. Q Okay. Did you see him get dressed at all when you were there? A No. Q Okay. Did you see – you mentioned the girl being naked from the waist down. Did you see where her clothes were at all within that room or any place else? A No, I didn’t see them. Q Okay. A There was a lot going on, it was pretty hard to pay attention to detail. Q Okay. But what you said is that the last time you had seen her, when you placed her on the couch, she was wearing clothes –

A Yes. Transcript page 150 Q –and the next time when you’d seen her with Harley, she was naked from the waist down? A Yes [ 12 ] Andre Couilloneur-Bear was aged 22 at the time of trial. He was a friend of Michael Wolf who rented the upstairs of the residence at 524 Avenue I South. He did not live there. However, it appears he spent a lot of time at that address visiting with his fiends. He was at the house on the night in question and partook for a while in the party upstairs.

He described how he had one beer and around 2:30 a.m. left the party and went into Michael Wolf’s room across the hallway from the living room (party room). He was on the bed and watching movies on Michael Wolf’s laptop. He may have fallen asleep for a while. The party was dying down and people had left. The battery on the laptop started to die down. [ 13 ] The transcript sets forth significant parts of his testimony as follows: Transcript page 75 Q Okay. And do you recall approximately what time that you might have left and gone to this other room, or – A probably about 2:30 Q MS. FILLO: Okay.

And could you hear other people while you were in that room? A Yeah, it was still very – very busy. Q Okay. And what, as the morning went on, what could you hear? A It started dying out, like people started leaving and it started getting quieter. A And what went on as you were watching movies? A The laptop started to die, and so the charger was in the next room. I got up, went into the next room, I opened the door about halfway, and – because the charger was in there, and before I could like do anything, I seen Harley with his pants off. He was in a push up position over this girl.

I didn’t know who that girl was, and I couldn’t see her face. She looked like – I don’t know, she looked like she was asleep or something. And I closed the door right away, and – Transcript page 76

Q Okay. So what happens next, sir, then? A So after I closed the door, I went – I like was kind of evaluating what I just seen, and I – right away, I just assumed they were having sex. And so, like I didn’t really pay – pay attention to it. I went into – back into the next room, and I was laying in the bed, and that’s when, like about two minutes later, Jeremy, my friend, was like screaming for my name. He was saying Transcript page 77 “Andre” and I was like, oh shit. And so, I opened the door, I was like, “What’s going on?”, and he’s like, “Harley –“. Q Okay.

I’m not going to – he spoke to you at that point, but I’m not going to ask you to repeat what he said. A Yeah. Q Okay. So he’s screaming your name, you open the door and you have a conversation, or he – A Yeah, we talked. Q –seems – okay. A Yeah. Q And so, where do you go, once you open your door? A We were standing there talking for a while. Q Where? A In the foyer between the room of my door and the living room door. Q Okay. Okay, so you and Jeremy are standing in the foyer? A And Mikey. Q And Mikey was there, too. Okay. And then what?

A When Lynn the mom came upstairs, she was like , “Andre, go get the phone”, and so I ran downstairs and grabbed the phone and dialled 911. Q Okay. Did you have an opportunity to look back in the room that you had seen Harley and the girl in? A No. Q Okay. So you’re standing in the foyer, and do you ever go back in that room? A No.

Q Okay. So Lynn comes, she says, “Andre, go get the phone”, and the phone is located where? A In the kitchen on the main level. Q And what do you do? A I called the police. Transcript page 78 Q Okay. A And they arrived pretty quick. Q Mmhmm. A And they had me outside and I wrote a statement. Q Do you see anybody leave the home? A No, I didn’t see Harley leave, but I seen the girl leave, like the paramedics came. Q So the paramedics came, and who did the girl leave with? A She left with the – she left with the paramedics, I believe. Q So did you have any contact with that girl before then? A Absolutely not.

Q Okay. A I didn’t know who she was. Q Had you seen her at all in the home that night, prior to you going into the bedroom and watching movies? A No. Q Okay. So can you describe this couch that was in the bedroom? What was the size of it? A It’s a small loveseat, like two-seater.

Q Okay. So what position was the girl in? A She was laying on her back. When I first entered the room, she was laying on her back with her head to the side, so I couldn’t see her face. And her leg – Q So when you – you’re just moving your head to the side? A Yeah. Q So when you say her – and you’ve tilted it away from me. So are you saying her head was tilted away from you? A Yes. And her legs were like open and her pants were off. Transcript page 79 Q Okay.

I know you used the word “push-up position”, and we – we may have an idea of what that means, but maybe if you could just be more descriptive, so we all understand, when you’re talking about Harley’s position? A he was – she was laying down with her legs up, and he was on top of her, lunged. He wasn’t penetrating or anything, but just kind of like standing there, and his arms were on either side of her waist. Transcript page 91 Q Right. So you didn’t see what took place other than what you saw for those two seconds that you opened the door? A Well, there was those two seconds.

At the same time, the second encounter was when I was called out of the room by Jeremy, Mikey, and that’s when I looked again, and he – Harley was sitting up straight with his pants off, and the girl was – she had her head turned the other way. Like, I could see her face, and she was like asleep, like totally out of it. [ 14 ] Michael Wolf, aged 25 at trial, confirmed there was a house party in the upstairs area he rented on the night in question. Numerous people came and went throughout the evening with the majority gone sometime around or after 4:00 a.m.

At that stage, left in the house were himself, Andre, Jeremy, Harley, Lynn and R.D. the alleged female victim. [ 15 ] He recollects the partiers had left. He notice that R.D., whom he had only met that night, was asleep/passed out on the large window sill in the upstairs living room. He and Jeremy moved her to the couch. His recollection is Harley was not in the room when he and Jeremy left R.D. asleep on the couch. She was fully clothed at the time. He, Harley, and Jeremy had now gone to the basement.

Harley left the basement and announced he was going to the bathroom which would be on one of the two upper floors. Harley didn’t return for some time so Jeremy announced he was going to go look for Harley. Michael heard Jeremy yelling. He ran upstairs to the second floor. The transcript sets out his evidence as follows: Transcript page 41

Q Okay. So what do you see and hear, once you go into that room? A Well, I see him -- Q And you have to use the words, because when you say “him”, you’ve talked about a lot of guys there. THE COURT: Yeah, I seen who? A Oh, okay, I seen Harley (INDISCERNIBLE) upstairs, and R.D. half-naked, still sleeping. Q MS. FILLO: Okay. So where exactly is Harley? A In the living room Q Where? A Upstairs Q MS. FILLO: What’s he doing? No, where is he Transcript page 42 though, in the – in the room, where is he? A Oh, on the couch. Q On the couch. Is there more than one couch, or just one couch? A No, just one. Q Okay.

And you say he’s half-naked upstairs? A Yeah. Q So what do you mean by half-naked? A Like no pants, no underwear. Q No pants, no underwear. And the last time you had seen him, did he have clothing on that area? A Last time I seen him? Yeah.

Q Yeah. Okay. And where does – where is Harley’s living quarters, or where does he sleep? A Downstairs in the basement. Q Downstairs in the basement. Okay. And where did you see R.D.? A Upstairs in the third floor in the living room on the couch. Q Okay. So this is the same couch? A Yeah. Q And can you describe the positions of each of them on the couch, please? A She was laying on her back. Q What was she wearing? A No pants or underwear. Q And the last time you had seen her, could you compare the clothing? A She was fully clothed when she was on the couch last. Q Okay. So she’s wearing no pants or underwear.

Do you actually see where the – where that clothing is? A No. Q And so, you said she’s laying on her back. And where is Harley in relation to her? Transcript page 43 A Sitting beside her. Q And can you tell me, was Harley drinking any liquor that evening? A Yeah. Q Okay. Can you describe his level of intoxication? A Probably ten out of ten. MR. MCDOUGALL: You’re going to have to speak up.

A Ten out of ten. Q MS. FILLO: So when you came in, did you hear Harley say anything? A He said, What’s done is done”. Q What’s done is done? A Yeah. Q Did he say anything else? A No. Q What did you say to him? A A bunch of yelling and swearing. Q So you were yelling and swearing at him? A Yeah. Q What did he do then? A Nothing. Q So, when you say “nothing”, you mean he just sat there? A Yeah. Q Okay. And who else was in the room then? A Andre and Jeremy, just in the room there. [ 16 ] It appears Lynn McNeely then came upstairs and somewhat took charge of the situation.

She got the boys out of the room and had someone call the police. Harley was removed from the house immediately. Michael recollected the police arriving and seeing them arrest Harley some minutes later when he was seen standing outside in the front yard. [ 17 ] In addition at p. 69 of the transcript, the Court asked the following: Q What observations if any, did you make when you saw him sitting on the couch and her on the couch? What observations if any, did you make as to her level of consciousness at that time? A She was unconscious. Q What do you mean by that? A She was like totally passed out.

[ 18 ] Lynn McNeely’s evidence confirmed the young men were living at her residence and paying rent or room and board. Her main involvement starts when she hears her son Jeremy shouting. She goes upstairs to find Jeremy, Andre, and Michael standing in the living room with Harley sitting on the couch and R.D. lying on the couch.

She moves the boys out of the room to prevent any physical confrontation and directs someone to phone the police. [ 19 ] Her main evidence is set out in the transcript as follows: Transcript page 106 Q Just describe as – as if you walk upstairs, tell us exactly word for word, what you see, what you hear. A Well, when I walked upstairs, between my son and Mikey, both just livid and hollering at Harley. I – Q Okay, that’s Jeremy and Mikey hollering at Harley? A Yeah. And asking him, what the heck was he thinking, what was going through his mind, that he should never do something like that, that is wrong.

And – Q That’s what they’re saying to him? A Yes. And at that point, I said to both the boys, you know what, go in – into Mikey’s room, I will deal with this. So I turned around and seen Harley, and he had no socks, no under – underclothes, no pants on. And – Q So are you –are you saying nothing from the waist down? A Yes. Q Where is he? A At that point, he was sitting right – I wish I had a thing that I could draw the diagram. Transcript page 107 Q So what do you see?

A Well, I seen Harley sitting at the very end of the couch, and he had his head in his lap, and I flew off the handle, and I said to him, you get up and you get your clothes, and you get the hell out of my house now. And that I was going to be pressing charges, because this is something that does not wash with me. And in doing so, he had no intentions of moving, or leaving, or doing anything yet. He just sat there looking at me with a smile on his face, ejaculating off in front of me. Q Ejaculating in front – A Ejaculating off in front of me.

Q So, just so that we all understand what you mean, please tell us what you saw him doing.

A Well, grabbing his – Q You’ll have to use the words, ma’am. A Grabbing his pecker and – Q What is – what is the – THE COURT: His penis. Transcript page 108 A His penis. MS. FILLO: Okay. A And stroking it back and forth, and just having a big smile on his face. Q And does he say anything in response to your telling him to get out? A No, he – he didn’t say anything. And at that point, I had – by that point, Andre was up, and I had hollered and said, somebody call the police right now. Q Okay. What else did you see in the room?

A And then when I looked over, I then realized that there was a girl that was on the couch passed out. And she had nothing on from the waist down, and she was passed out. Q What was her position? A She was on her stomach. Q So are you able to see her face at that point? A No, she had long hair and I couldn’t see her face at all. Q Okay. And so, when you see – and I just want to know if you mean full stomach, side, what exactly? A Full stomach. Q Okay. And – and you said, so she’s naked from the waist down. Harley is naked to the waist – from the waist down. How close are they in this couch?

A Well, right where the couch is and where he was sitting at the end of the couch, she was – her feet were – could have been touching him. That’s how close. Q So how long does it take, or does Harley eventually respond to – to what you are saying?

A He didn’t really want to respond. I walked in and I grabbed him by the arm, I grabbed his clothes, I said you get these on and you get the hell out of the house now. Q Where were his clothes? A Some of his clothes were on the floor, some of it was where the girl was. Transcript page 109 Q –what clothing, do you recall? A He had – his socks were on the floor, his pants was on the floor, his underwear was on the couch by the girl.

Transcript page 111 Q So who was trying to wake her up, in terms of who would be – A We were all in the room trying to wake her up, shake her and call her by her name, and she wasn’t getting up. Transcript page 112 Q How long do you think that you were trying to wake her up there for? A Probably a good 10, 15 minutes. Transcript page 117 Q And how – the last time you had seen her prior to the couch, what was she wearing? A I do believe it would have been black spandex pants.

She had a bunny hug on, so I don’t know what colour her – [ 20 ] Officer Kevin Adrian testified receiving a 911 dispatch at 6:00 a.m. and arriving at 524 Avenue I south at 6:03 a.m. He spoke to the occupants and around 6:21 a.m. someone pointed out the accused standing in front of the house. He arrested the accused at 6:22 a.m., read him his Charter rights and police warning, and lodged him in the back of the police vehicle.

Transcript page 6 A Yes, I looked outside onto the – to the front yard and I saw this male. Q Okay. What did you do then? A Due to the grounds that I had – had built, speaking to the four people, I went outside and I arrested Harley Moses for sexual assault. Q Okay. Can you tell us the condition of Harley Moses? A I described him as mildly to moderately intoxicated. He was cooperative to deal with. He was slow or sluggish in his movements. He was not a problem to deal with. He wasn’t belligerent to me.

But I – I gauged him to be mildly or moderately intoxicated. [ 21 ] He spoke to one female and three males at the residence. All the witnesses were coherent and were able to write statements. [ 22 ] A short while later, Officer Jody Levesque arrived to give assistance. At 6:46 a.m., the two police officers went upstairs and found the female, lying on the couch and was in a deep sleep or passed out. She eventually identified herself as R.D. She was naked from the waist down. Officer Levesque took lead role with R.D. and Officer Adrian dealt with the witnesses.

For reasons that become more evident later, Officer Levesque was never able to get a written statement or any investigation cooperation from R.D. [ 23 ] His testimony in relation to dealing with R.D. is as follows: Transcript page 20 Q And can you just advise the Court, your involvement in this matter: A I was dispatched to 524 Avenue I South, I believe, to assist officers who were already on-scene. Upon arrival, I spoke with Constable Adrian, who had advised that the victim was upstairs and he was receiving some statements from some – some witnesses. Q Okay.

A I attended up to the upstairs, where I located a northwest bedroom that – that had a couch against the north wall, where I noted a female now know to me as R.D., who was passed out on her back, kind of in like a fetal position. And I noted that she wasn’t wearing any clothing from her waist down, and appeared to be possibly only wearing a yellow bunny hug. Q Okay. Was there anybody else in this room that you – A No, there was not. Transcript page 21

Q Okay. So did you attend alone or with anyone else? A I was by myself in the bedroom. Q Okay. A I was trying to wake her up. It took approximately about ten minutes. I used numerous pressure point techniques that we normally use to wake-up people who are passed out. A couple times, she opened her eyes and then kind of went back asleep again. And then, finally, after about ten minutes, I was able to kind of get her alert enough that I could speak with her. Q Okay. And just describe what type of pressure points you had to use.

A I honestly don’t remember, but normally, I would use a pressure point behind the ear, or a sternum rake on the chest. They seem to be the – the ones that work the most for me. Q Okay. And you said it took about ten minutes. Is that – in comparison, you said you’ve had to use these pressure points to awaken intoxicated individuals before. Is that a usual amount of time, unusual? A No, that was actually quite long. I did request for MD to attend during that time. Q So while you’re attempting to wake her up, you had requested MD Ambulance to attend? A That is correct. Q And why was that, sir?

A Just because it seemed to take her a long time to wake up, and I wanted her vitals to be checked. Q And so when she phone – finally awoke, could you describe her condition then? A She appeared to be intoxicated to me. I could smell a strong odour of beverage alcohol coming from her breath. And, yeah, basically just that. She didn’t have slurred speech or anything, but she seemed very tired and passed out. I don’t know whether that was from sleeping or from the intoxication. Q And so, were you present when MD Ambulance attended? A Yes, I was. Q Okay. Did they have an opportunity to check her out?

Transcript page 22 A Yes, they did. They checked the vitals and let me know that she was fine, basically.

Q All right. A Besides being intoxicated. Q And so, what happened after they arrived and checked her out? A After they left, I asked her – I kind of briefed her on the situation on why we were dealing with her, and I asked her to accompany me to RUH, to administer a sexual assault kit. Q Okay. Was she able to accompany you? A Yes, she was. Yeah. Q Okay. A We went down to RUH, where she spent some time with a doctor. Q Okay, you obtained an oral statement from her. Okay. And how long did you remain at the hospital?

A I stayed until she was finished, until I believe it was – I don’t remember the exact time, but maybe about 8:20, 8:30, where the doctor said I could go in and see her. And that’s when the doctors had indicated that she refused to do a – a kit. Q Okay. And did you give her a ride anywhere after that, or did you just leave her on her own? A No, I – I left her there at that point. [ 24 ] It would appear from that point on R.D. refused to give a written statement or cooperate any further with the police in relation to the investigation.

The Court infers that lack of cooperation continued as R.D. was not presented by the Crown at trial to testify. The Crown closed its case without testimony from R.D. Importantly, the Court cannot speculate as to why there was no testimony from R.D. [ 25 ] Lastly, the Court notes that in cross-examination, defence counsel asked the following questions of Officer Levesque: Transcript page 25 Q Okay. Now, in regard to your notes again, is it correct that you found – or you saw an empty bottle of Wiser’s whiskey laying on the floor? A Yes. Q And it was empty? A Yes, that’s correct.

Q Were there any glasses laying around? A Not that I recall, no.

Q Did you take – did you seize that bottle of whiskey, that empty bottle? A No, I did not. Q Okay. And you didn’t – did you mention that to Sergeant – or, Sergeant – excuse me, Constable Adrian? Did you – A I – I don’t remember if I mentioned it to him, but I have in my report that – well, I don’t want to give hearsay evidence, but I indicated in my report what she had said to me in regards to the Wiser’s. Transcript page 26 Q What did she say to you in regard to Wiser’s? A That she drank a 66 ounce of – of Wiser’s. [ 26 ] Then at page 30, lines 6 - 28, the Court asked for further clarification on that exchange.

The Court Questions the Witness Q You said there was an – an empty bottle on the floor. That’s on the floor in the room you were in; is that correct? A That’s correct, Your Honour. Q Okay. And do you recollect the size of the bottle that – you know – A I’m not – about yay big. I don’t – I’m not a drinker, I can’t reference the sizes too well. But it was like – Q Okay, but – okay, but you – okay. All right. Do you recollect if it was a – the size of it was consistent with the information you had? A Yes, That’s correct. THE COURT: All right. Any questions arising from that, Crown? MS. FILLO: No. THE COURT: Defence?

MR. MCDOUGALL: I’m fine. Thank you very much, Your Honour. [ 27 ] Upon closing of the Crown’s case, the defence elected to call no evidence. The Court is left with assessing and critically weighing the evidence presented by the Crown, in the absence of any other evidence presented by the defence.

Issues and the Law [28] In the absence of any evidence from an alleged complainant or victim, the Court must be ever mindful to remember theburden remains on the Crown throughout to prove the case beyond a reasonable doubt. [29] Before an accused can be convicted of an offence, the tier of fact must be satisfied beyond reasonable doubt of the existence ofall of the essential elements of the offence. ( R v Vaillancourt, (SCC), [1987] 2 S.C.R. 636 at 654) A reasonable doubtmay arise from the evidence, a conflict in the evidence, or a lack of evidence.

It is not an imaginary doubt. [30] The Court must be mindful that a criminal trial is not a credibility context. It is only after considering the evidence as awhole, and applying the principle of reasonable doubt to issues of credibility, or reliability of the witnesses and to the findings of fact,that the Court can come to a decision. The Court may accept all, some or none of the evidence of any particular witness. [31] The Court must also be careful not to inadvertently shift the burden to the accused, to show a motive for some of the witnessesto fabricate evidence.

The Court must not view the evidence piecemeal, but must determine whether the guilt is proven beyond areasonable doubt on the totality of the evidence. The burden remains on the Crown throughout. [32] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamentalprinciple of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charityextended to the accused in this particular case.

To be presumed innocent until proven guilty by the evidence presented in a court of law,is the fundamental right of every person accused of criminal conduct. [33] The actus reus of sexual assault is established by the proof of three elements: (

i) touching; (ii) the sexual nature of theconduct, and (iii) the absence of consent. R v Ewanchuk, (SCC), [1999] 1 SCR 330 para 25. [34] At the outset, the Court will deal with the following questions: What is the actus reus in relation to the evidence presented bythe Crown. The Court must note that there is no direct, eyewitness evidence of any overt physical or fondling contact of R.D. by theaccused.

Accordingly, the Court suggests that the actus reus would be described by the following question “does the evidence establishbeyond a reasonable doubt that the accused removed the clothing of R.D. from her waist down, without her consent”. The issue ofconsent will be addressed later in this decision. During argument, the Court posed that question to both counsel. They both agreed thatthe act of the accused in these circumstances removing the clothing of R.D. from the waist down, in the given circumstances on June 30,2012 would be

an act of “Sexual Assault” as contemplated by s. 271 of the Criminal Code. The question is, has that act been provenbeyond a reasonable doubt? [35] The question then distills to this: “has the removal of R.D.’s clothes by the accused, while she was in an unconscious statebeen proven beyond a reasonable doubt?” [36] In addition, the evidence in relation to that “actus reus” consists largely of circumstantial evidence. This brings into playnumerous decisions over the years which discuss the cautions and evidentiary guidelines the Court must consider before determining theguilt of an accused.

The first such caution is often referred to as The Rule in Hodge’s Case - 1838 CanLII 1 (FOREP), 168 E.R. 1136,which states that before the jury can find the prisoner guilty, they must be satisfied, “not only that those circumstances were consistentwith his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rationalconclusion that the prisoner was the guilty person”. [37] The Court summarizes the essence of numerous decisions of the Supreme Court of Canada since Hodges Case, to the conceptthat “where a charge depends upon circumstantial evidence, it ought not only to be consistent with the prisoner’s guilt, but inconsistentwith any other rational conclusion”.

[38] The Court also wishes to review and must avoid, a problem in the application of the rule, that sometimes occurs in thedetermination or a “rational conclusion” other than guilt. For the conclusion inconsistent with guilt to be rational, there must be evidencein the case capable of supporting such conclusion. In the case of R v Torrie, (ON CA), [1967] 2 OR 8 (ONCA), thetrial Judge acquitted an individual in relation to a motor vehicle accident based on a reasonable doubt in the determination of no other“rational conclusion”.

An expert testified that in his opinion the tire puncture was caused by the collision and had not occurred beforethe collision. On cross-examination he testified in answer to hypothetical questions that it was possible for the puncture to have occurredshortly before the collision by a sharp object thrown against the tire by some other traffic.

There was no evidence of any sharp object onthe road nor of any other traffic near the accident, Evans, J.A. in writing for the Court in allowing the appeal from acquittal and enteringa conviction said: The learned trial judge came to the conclusion, substantially if not wholly, based upon the answer of the witness McMillan, to thehypothetical questions, that there was a reasonable doubt of the respondent’s guilt. In my opinion, this conclusion is in error for therewas no evidence to support it.

The “sharp object” or “other traffic” appeared only in the questions of counsel for the respondent andlacked factual support. .... With the greatest respect, I am of the opinion that the learned trial judge misapplied the rule in Hodge’s Case as to circumstantialevidence in that he based his finding of reasonable doubt on non-existent evidence. In R. v.

McIver, McRuer, C.J.H.C. said: The rule (in Hodge’s Case) makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and theconclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. Noconclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginativeconclusion, not a rational one. This statement was approved on appeal to this Court and an appeal therefrom to the Supreme Court of Canada was dismissed.

I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do notunderstand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused.

It is abundantly clear from the reasons for judgment of the learned trial judge that he would have found the respondent guilty of eithercriminal negligence or the included offence of dangerous driving, had it not been for the conjectural possibility logically assented to bythe witness McMillan. [39] If the Court finds the actus reus has been proven beyond a reasonable doubt then it must address the issue of consent. [40] The relevant provisions of the Criminal Code read as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose; or . . .

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing

bodily harm and aggravated sexual assault. . . .

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. R.S., c.

C-34, s. 244; 1974-75-76, c.93, s. 21; 1980-81-82-83, c. 125, s. 19. 273.1(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271 , 272, and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; © the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstance in which no consent is obtained. 1992, c. 38, s. 1 . [ 41 ] From the evidence in this trial, it appears the issue condenses itself into the following question: Has the evidence established beyond a reasonable doubt that all material times to the activities of Mr.

Moses, as observed by third parties, R.D. was unconscious and incapable of giving consent as contemplated by s. 273.1 of the Criminal Code ? [ 42 ] In that respect, the decision of R v Ashlee , 2006 ABCA 244 , 212 CCC (3d) 477 [ Ashlee ] is so similar in fact and principles of law that the Court is guided by the reasoning of the majority decision without reproducing it in its entirety. [ 43 ] Of note is that the only evidence in Ashlee , supra, of the Crown was that of third parties who observed the activities between the female victim and two men.

Their evidence was to the effect the female appeared to be “out cold”. In addition, the victim gave no evidence other than a third party observer and two police officers. No evidence was called by the defence. [ 44 ] The legal principles were canvassed extensively and with such clarity that this Court need only adopt them in their entirety. See also R v Magiri , 2017 ONSC 2771 and R v Villaroman, 2015 ABCA 104 which canvassed extensively the principles set forth in s. 273.1 and found them to be constitutional. See also R v Nguyen, 2017 SKCA 30 .

[45] Lastly, the Court must be ever mindful of the applicable principles on how to assess and weigh the evidence, as set forth inthe decisions of R v W.D., (SCC), [1991] 1 SCR 742 (SCC), R v M. (P.N.) (SK CA), 1996, 141 SaskR 221 (SKCA), R v Klemenz and Matychuk , 2015 SKCA 89, and R v Y.M. (ON CA), 2004, 186 CCC (3d) 247(ONCA).

Analysis and Conclusions [46] The evidence presented by the Crown which remained unchallenged by other evidence, must now be weighed by the Court inrelation to the burden of proof beyond a reasonable doubt. [47] It establishes that a young female identified as R.D. attended a house party from late in the evening to early of the nextmorning around the date in question. It also establishes that she drank alcohol. Defence brought out a verbal statement given by R.D. tothe effect she was drinking from a 66 of Wiser’s. The Court infers that would be rye whiskey.

In addition, the police officer confirmedan empty Wiser’s bottle in the room. In any event, all the party invitees had left except for those identified in the evidence and R.D.herself. The Court is satisfied this was sometime between 4:00 and 5:00 a.m. At that stage Jeremy McNeely and Michael Wolf foundR.D. asleep and somewhat in an unconscious state either on the floor or on a large window sill. They came to the conclusion she waspassed out from the consumption of alcohol. [48] These two young men physically carried her or supported her to move and lie down on a couch in the room.

They then lefther alone in the room in a state of being fully clothed. As Jeremy stated, “Me and somebody else picked her up and put her on the couch,when everybody else was leaving, because it was the polite thing to do”. [49] Jeremy, Michael, and the accused were in the basement. Lynn McNeely and her nephew were on the main floor. Andre wasupstairs in Michael’s room across the hall from the room R.D. was sleeping in. [50] Harley Moses then announces he is going to the bathroom and leaves the basement. Harley is gone for a considerable lengthof time such that Jeremy is uncomfortable and goes to look for him.

The Court is satisfied this was in excess of ½ hour. Just before that,Andre opened the upstairs living room door to briefly see Harley in a somewhat compromising position with R.D. In addition, bothHarley and R.D. are naked from the waist down. Andre, is startled and just returns to his room. Within minutes, Jeremy opens the livingroom door and also sees Harley and R.D both naked from the waist down. He immediately reacts and yells. Michael Wolf immediatelycomes upstairs and sees Harley and R.D. in a compromising state of undress. He becomes angry and shouts at Harley.

Lynn McNeelyreacts to the shouting and comes upstairs. She herds the three young males out of the room to prevent a physical confrontation. Thenshe sees Harley, physically masturbating in front of her. She reacts and immediately instructs someone to call the police andimmediately ejects Harley from the house. [51] The police arrive shortly and confirm many details of the evidence given by the occupants, including finding R.D. naked andin a state of very deep sleep or unconsciousness.

It takes Officer Levesque at least ten minutes to awaken or rouse her such that he isconcerned for her well being and calls paramedics to come and check her state of health. [52] The evidence from all the witnesses is consistent and somewhat overwhelming in one aspect throughout. That is from Jeremyand Michael putting R.D. on the couch to every time someone saw her between approximately 4:30 a.m. to 6:00 a.m. they felt she was insuch a deep sleep to be unconscious and incapable of any apparent voluntary physical movement or thought process.

The Court issatisfied beyond a reasonable doubt that from the time she was put on the couch until Officer Levesque awoke her, she was incapable ofgiving any consent to any sexual activity whatsoever as contemplated by s. 273.1 of the Criminal Code. [53] The next issue to determine is how did R.D. come to be in a state of undress from the waist down. [54] This Court is satisfied that was not done by any of the other occupants of the house other than the possibility of Harley Mosesthe accused.

[ 55 ] The evidence created an intricate, intertwined scenario of unconsciousness on the part of R.D. and access on the part of Harley. All of the said circumstantial evidence remains unchallenged and uncontraverted by any other evidence other than some speculative, possible scenarios put forth by defence in cross-examination and argument. The Court is satisfied beyond a reasonable doubt that the only logical inference to be drawn in relation to the circumstances, is that the accused Harley Moses removed R.D.’s clothing when she was in a state of unconsciousness and unable to give any consent in law.

To suggest any other inference would be speculative at best and unsupported by any other rational

interpretation to be given to the evidence. [ 56 ] As discussed in argument, this Court is satisfied that removal of R.D.’s clothing by Harley in those circumstances would be the actus reus amounting to a sexual assault as contemplated by s. 271 and the jurisprudence. The Court is satisfied the circumstantial evidence establishes beyond a reasonable doubt that the accused in fact removed R.D.’s clothing while she was in a state of unconsciousness. [ 57 ] The Court therefore finds him guilty as charged. _________________ D.A. Lavoie, J