Her Majesty the Queen - v. -, 2012 SKPC 126

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 126 Date: August 3, 2012 Information: 24354028 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - E. J. B. Appearing: D. Bode For the Crown W. Rusnak For the Accused JUDGMENT B. M. KLAUSE , J I. INTRODUCTION [ 1 ] E. J. B. is charged that he between June 1, 2008, and December 31, 2008, at Rhein, in the Province of Saskatchewan, did for a sexual purpose touch S. H. a person under the age of sixteen years directly with a part of his body, to wit his penis contrary to s. 151 of the Criminal Code of Canada .

[ 2 ] The Crown called two witnesses: S. H., and her mother, J. H. [ 3 ] S. presented as a bright, somewhat precocious child, and gave her evidence in a very frank and forthright manner, despite her young age. In April of 2011, she testified that she was eight years old and would be nine on July 25, 2011. [ 4 ] The facts are fairly straightforward. The complainant lived with her mom, J., in the small village of Rhein, Saskatchewan. After a period of time, they became quite friendly with the neighbours, the accused, E. B., and his wife, M. D..

Over the course of this friendship, S. came to spend some time with the B.s when her mom was unavailable to take care of her, in effect the B./D.’s provided child care services. It was in this context that the complainant alleges inappropriate touching by the accused. [ 5 ] The allegations were serious and include french or tongue kissing, lying on top of the complainant with his trousers down and the complainant apparently feeling rather than seeing his penis.

She testified that this happened while her mom was away shopping, thus affording the accused an opportunity to behave inappropriately with the complainant. There was not much further in the way of detail and the rest of her evidence was really focussed on extraneous issues, such as the sometimes chaotic home environment in which she lived with her mom and her string of friends, including men that she lived with at various times. She also discussed the arrangements when she was staying at the B./D.’s, the rules of their house, and where she would sleep if she slept over at their place.

She also described a rather curious incident involving a rock shaped like a penis which apparently her mother had possession of and which she showed to the B.s. She was also familiar with a picture on her mothers cell phone which showed an adult penis. She was also questioned about an incident at the Superstore in Yorkton where her mom demonstrated with a penis shaped vegetable what a penis could be made to do and she indicated that she was embarrassed by this behaviour. [ 6 ] The next witness for the Crown was the mother of the complainant, J.

H., who was able to give a contextual context to S.’s evidence and it was she who received the first complaint from her daughter. She described her daughter as bright and very sophisticated for her age. She outlined the nature of their relationship with the B.s, first as neighbours, and then as friends, and ultimately S.’s godparents. Suffice it to say that the B.s were trusted by her to care for S. on several occasions, and she felt that they had betrayed that trust by allowing this to happen.

Her cross-examination was extensive and consisted mostly of a detailed examination of her personal life i.e. her relationship with Will, her common-law husband, the breakdown of that relationship, and the various goings on with the neighbours in Rhein. She denied showing S. a picture of a friend’s penis on her cell phone, never explained to her the use of the penis stone, and does not recall an episode of cucumbers at the Superstore in Yorkton at all. She was obviously upset when S. disclosed to her what had happened in regard to E. B..

She has talked with S. in the past about good touching, and bad touching, and talked about private parts, and in referring to a woman’s private parts, the family refers to that as a “perogy.” She was upset and astonished when S. revealed to her what had allegedly occurred to her and did not really know what to do. In terms of a possible date for the alleged offence, it really is difficult to pin down an actual day or month, but it seems likely the event would have occurred in the month of December 2008, as it appears that S. spent a reasonable amount of time with the B.s during the pre- and post-Christmas season.

II. THE DEFENCE [ 7 ] The defence called four witnesses: M. D., wife of the accused; Richard Solanenko and Andy Hegstrom, neighbours of the accused; and the accused. 1. M. D. [ 8 ] Ms. D. is the wife of the accused. She essentially described the neighbourhood dynamics of small town Saskatchewan. She became friends with the H.s and while the relationship was initially friendly and neighbourly, it became over time, chaotic with partying at the H.s, yelling and police attendances.

She often would take care of S. over night if J. asked and in one instance kept S. at the request of the RCMP as J. and her common-law were fighting. In essence she testified that any time S. was at their house, she was also there, and that the accused was never alone with S. at all, and therefore could not have committed the alleged act. It was her evidence that the accused was not interested in child care and any child care being done was done by her, and her alone, without much participation by B.

She was also able to elaborate on the penis stone incident, the cell phone with a penis on it incident and the vegetable incident at the Superstore as she was present for all of these occurrences. In regard to Christmas 2008, she advised that they had bought presents for S.,

and S. wanted to stay longer at their house and had begged her mom to stay longer. She described S. as a very precocious, attentive child, who was quite mature for her age and “who knows too much for her age”. Ms.

D. was adamant that at no time when S. was staying at their house in Rhein would the accused have had an opportunity to physically assault the complainant in the manner described. [ 9 ] I found her evidence to be compelling, eloquently presented, demonstrative, but not prone to exaggeration or hyperbole. [ 10 ] In cross-examination she further discussed the ghost incident in which S. had complained of ghosts in her room. She obtained a box for S. to “store” the ghosts in. It was her opinion that S. was being “bothered” by someone at night and this was S.’s method of coping with that. 2.

Richard Solanenko [ 11 ] Mr. Solanenko was a neighbour of the people involved in this case. He testified as to hearing amorous sounds emanating from the upstairs window of the H. household, which he described as “sounds of pleasure”. In cross-examination, he conceded that he did not know who was making those noises. 3. Andy Hegstrom [ 12 ] Mr. Hegstrom was a truck driver who lives in Rhein and at one point in time was in a relationship with J. H.. He described S.’s behaviour as occasionally sexually inappropriate, but that she was smart and mature for her age.

His relationship with J. ended when he started dating J.’s mother, Jeannie, and J. then started dating his brother, Will. 4. E. B. [ 13 ] Mr. B. testified in his own behalf. He briefly detailed the neighbourhood dynamics and stated that the first time S. stayed overnight at their house would have been in December of 2008. It was his evidence that he never cared for S. alone, as he stated “I don’t babysit”. M. would make all the arrangements for child care with J., but he denies ever being alone with her during the time frame of the indictment.

He stated he never was in his bedroom alone with S.; he never french kissed S.; and never pulled down his pants in her presence. Even after the alleged incident he indicated that S. would wave to him and be friendly. He also recalled the penis stone incident, and that J. had a picture of her friend Jesse’s penis on her cell phone, with a piercing through the end of the penis. [ 14 ] His evidence was not seriously challenged in cross-examination. I found him relatively composed and forthright in his responses. He did not prevaricate and although understandably nervous, gave his evidence clearly and concisely.

It could best be summarized as a general denial of any illegal behaviour. III. ANALYSIS [ 15 ] In commencing my factual analysis of the evidence, it will be helpful to place the evidence of the complainant in its historical context. [ 16 ] The allegation is alleged to have been committed between June 1, 2008, and December 31, 2008, and this date seems to be chosen because the adults were able to piece that together, as opposed to the complainant remembering any of those dates. The incident was reported to the mom on April 14, 2009, and to the RCMP the next day.

The evidence of the complainant was recorded by a member of the RCMP on April 28, 2009. [ 17 ] The Information was sworn on May 9, 2009, and the accused first appeared on July 20, 2009. It was subsequently adjourned to August 10, 2009; September 14, 2009; October 7, 2009 and a trial date set for May 4, 2010. It was adjourned subsequently to June

15, 2010, and ultimately another trial date of January 4, 2011, was set. It was adjourned once again with a trial date set for April 14, 2011, at which time the trial commenced, with the evidence of the complainant, S. H., and her mother, J. H.. It was then adjourned on numerous occasions, to suit availability, of counsel and the court, and is now here for decision. [ 18 ] I note that at the time of the complaint, the complainant would have been between five and six years of age. The time between the date of the offence in 2008, and the first time evidence was heard was nearly three years.

While I do not criticize anyone for any delay in this matter, suffice it to say that it makes for a difficult exercise, for a complainant this young, reconstructing facts from so long ago. [ 19 ] It is trite to further observe that the onus is on the Crown and always remains on the Crown to prove each essential element of the charge beyond any reasonable doubt.

If any one essential element remains unproved, or if I am in doubt as to any of those elements, then I am obligated to acquit the accused and give him the full benefit of the doubt. [ 20 ] This case can be categorized as a historical sexual assault, given the date of the offence, and the time when it was first brought to the attention of the authorities. These cases are notoriously difficult for the Crown to prove as they rely nearly exclusively on the memories of individuals, who often wish to suppress, or forget the incident entirely.

It is rendered even more difficult when the principal witness was a child at the time of the incident, and remains a child at the date the evidence is proffered. [ 21 ] There is no longer in law any requirement for corroboration as there was formerly in the Criminal Code . It was thought for the proper administration of justice that the requirement of corroboration was often too big a hurdle for the proper prosecution of this type of offence.

So, in law, if I accept the evidence of the complainant, and reject that of the defence, and in particular the accused, I would be able to enter a conviction against this accused. [ 22 ] I found the complainant to be a bright, obviously intelligent, and quite articulate child, who does seem to possess a rather unusual awareness of certain activities best known to people of more advanced years. Her evidence was presented in a straightforward and relatively cogent fashion, given her age and experience with sexual issues. I do not think she exaggerated any evidence or made anything up.

Her mom’s evidence did little to advance the case, other than to corroborate what the defence essentially admitted, i.e. that the accused and his wife did have S. over at their residence on numerous occasions, thus suggesting an opportunity for the accused to perpetrate the acts complained of. I have no doubt that something was done to her, sexually and inappropriately, the question thus becomes who was that person? [ 23 ] The defence called four witnesses and much of their evidence tended to focus on the sexual proclivities and lifestyle arrangements of the mother of the complainant.

While not strictly relevant to the complaint at hand, it does tend to explain some of the way in which the complainant presented her evidence.

The unusual story of a stone shaped like a penis, which was lugged around the neighbourhood; the picture of “Jessie” a friend of J.’s, who allowed his pierced penis to be photographed by a cell phone, and shown to the neighbours and seen by S.; the rather embarrassing incident in Superstore involving a cucumber and how a woman might like to use it in a sexual fashion; this evidence, while not necessarily relevant to the complaint before me, does point to an environment in which a young, intelligent and obviously articulate young person, could become exposed to and desensitized to matters which are more properly an adult concern. [ 24 ] I have no doubt that in the course of her young life, S. has not only witnessed inappropriate behaviour, she also been a victim of it.

The question still remains, who did it? [ 25 ] It is trite to point out that the onus is upon the Crown to prove each and every element of the offence beyond a reasonable doubt . This onus never shifts, and remains on the Crown throughout the proceeding. In order for the Crown to succeed in the context of this case, it must prove beyond any reasonable doubt, that a sexual touching of the sort described by the complainant actually occurred. If I am left with any reasonable doubt, that doubt must be exercised in favour of the accused. [ 26 ] This is a difficult case for both the Crown and the Defence.

The Crown is faced with the evidence of a single witness, without any supporting medical, or corroborative evidence. No statement was presented by the Crown that would indicate any involvement by the accused, nor was any additional evidence provided by the Crown, or available to it. Similarly the Defence is left with the unenviable position of trying to extract from a very young witness, embarrassing details of a very personal matter, which may, or

may not, have occurred three years ago. No records, or detailed notes were kept, no statements were made to an adult at the time of theoffence, and the complaint did not come to the attention of the mother of the complainant until several months after the event complainedof. [27] The leading case in this area on the burden of proof is D. W. vs. The Queen (1991), (SCC), 63 C.C.C. (3d)397, a decision of the Supreme Court of Canada. At page 409 of the judgement per Cory, J.: 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 no 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 the believe the accused. Secondly, if thedo 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.207.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the maincharge, but on any recharge. A trial judge might well instruct the jury on the issues of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, 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. [28] This principle was embraced and expanded by the British Columbia Court of Appeal in R. v. C. W. H. (1991), (BC CA), 68 C.C.C. (3d) 146. Wood, J.A. delivered the judgment of the court and at page 155 quoted the above paragraph from R. v.

W. (D.) and added the following condition: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [29] Ultimately the Saskatchewan Court of Appeal dealt with the same issue in R. v. McKenzie (P. N.) (1996), (SK CA), 141 Sask. R. 221, and combined C. W. H. with R. v.

W.(D.) to arrive at the following instruction to the trier of fact per Tallis,J.A. at paragraph four: Given the conflicting versions presented in the testimony placed before the jury, it was essential for the trial judge to adequately instructthe jury on this aspect of the case. While it is not necessary to adopt any particular form of language, I find the following passages in R.v. Rose (unreported B.C.C.A., November 12, 1992) to be instructive and useful: For these reasons it was vital that the learned trial judge clearly instruct the jurors, if they preferred the evidence of Ms.

Kelly over thatof the Appellant, as they obviously did, that they were nevertheless required to acquit the Appellant if they had a reasonable doubt abouthis guilt after weighing her evidence along with all the other evidence. 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 evidence which 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. was dealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflicting evidence of the complainant and the accused. ... [ 30 ] I also refer to Her Majesty the Queen and T. J. B. , 2009 SKQB 236 , a decision of Mr. Justice Acton at paragraph 31: The complainant was a sincere and credible witness. I am sure that she believed what she was saying to be the truth. She seemed to be quite certain what the actual acts were that the accused was alleged to have done to her.

However, she was extremely vague on dates and times, particularly with respect to the activities in the home on Monk Avenue.

I am also aware the witness was approximately six to seven years of age at the time of the alleged incidents and therefore may not have a good comprehension of dates and times. [ 31 ] And again at paragraph 32: I am aware that it was extremely difficult for the complainant to testify and she did her utmost to relay matters as she believed them to be to the court. [ 32 ] It is noteworthy that all of these cases essentially deal with the evidence of children who testified that they were sexually abused and the accused in the same case testified that he had not sexually abused anyone.

In W. (D.) a sixteen year old niece testified against her 42 year old uncle; in R. v. C.W.H. , the complainant was the natural granddaughter of the accused who was 11 at the time of the offence and 16 when she testified; and in Mckenzie a 24 year old married father of three was accused of sexually assaulting several girls under the age of 14, who were being cared for by his mother in a group home. [ 33 ] In the instant case, I note for the record that this offence occurred four years ago, when the complainant was between the ages of five and six.

It was not brought to the attention of her mother and hence the authorities until at least four months after the alleged incident occurred. Some twenty four months has elapsed between the time of the first disclosure in April of 2009, and the trial date on April 14, 2011. This matter has been set for trial on two previous dates, before it was finally heard on April 14, 2011. There was little evidence called, on behalf of the Crown, to support any detail of the complainant’s allegations, undoubtedly because none was available to the Crown.

The allegations by the complainant were incomplete as to time, place, and any significant detail as to how long, or under what circumstances the assaults complained of occurred. No written record was kept or maintained by the complainant in regard to any of the actions complained of.

This is neither unusual, or surprising, given the extreme youth of the child complainant. [ 34 ] I am therefore, in considering the evidence and the applicable cases and in particular our Court of Appeals decision in McKenzie , at step 2 of the test: Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [ 35 ] I have carefully considered all of the evidence. I have reviewed my notes of the case, and had available to me the transcript of the complainant’s and her mother’s evidence.

At the end of all of this, I am simply unable to decide whom to believe. Or to put it differently, I believe both of them are telling the truth, as they see it or recall it. I do not believe either of them are lying, but I am completely unable to decide whom to believe, and I therefore must acquit the accused on the charges. [ 36 ] Dated at the City of Yorkton, in the Province of Saskatchewan, this 3 rd day of August, A.D. 2012. ___________________________________ B. M. KLAUSE, J