His Majesty the King - v. -, 2022 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2022 SKPC 46 Date: November 24, 2022 Information: 991157709 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - A.H. Mr. Douglas Howell For the Crown Mr.

Zachary Carter For the Accused PUBLICATION RESTRICTION : 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. DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] The accused is an adult who is charged with a historic sexual assault that occurred when he was a youth.

It is alleged that the accused sexually assaulted his half-brother during a Christmas visit which occurred in either 2002 or 2003. At that time, the complainant was about 10 years old. The accused would have been approximately 16 years old.

[ 2 ] While the complainant provided a detailed description of a major sexual assault and while I am satisfied that the complainant now genuinely believes that these events occurred, I have a doubt – a compelling and persistent doubt – that the complainant’s memories of his childhood may have been influenced by subsequent events in his life and may not be accurate. Because I have a doubt as to whether the events described by the complainant occurred, the accused must be acquitted. THE EVIDENCE [ 3 ] A trial was conducted on September 22, 2022 and November 4, 2022.

The Crown called two witnesses – the complainant [D.C.A.]; and Constable Kimberly Maruszczak, a member of the Prince Albert Police Service. The accused [A.H.] testified in his own defense. Crown Evidence : The Family Background : [ 4 ] The complainant is now 30 years of age; the accused is 36. They are half-brothers. They have the same father. The accused has lived in Prince Albert all his life. When he was about five years old, his parents split up. The accused and his younger sister then went to live with his mother and his grandparents.

The accused’s father met someone new and had four children with his new partner - the complainant is the oldest of these children. [ 5 ] The accused would visit his father from time to time after his parents separated. He and his younger sister would visit their dad about once a month (sometimes less) and would commonly visit for big holidays, like Christmas and birthdays. These visits continued even after his father had a new family. The accused testified that some of these visits involved he (and his sister) going to his dad’s place on Friday night and returning home to his grandparent’s place on Sunday.

In other words, some of the accused’s visits to the home of the complainant involved sleeping over. Also, it was not unusual for the accused to be in the same house as the complainant at Christmas. [ 6 ] Of significance to these proceedings, the complainant had a younger brother. His nickname was “Boo”. This person was six years younger than the complainant (approximately 12 years younger than the accused). Tragically, Boo committed suicide in May of 2020. The Complainant’s Testimony : [ 7 ] The complainant testified that in 2002 or 2003, the accused (and his half-sister) spent Christmas with them.

Apparently, it was common for the complainant’s side of the family to stay up late and open their presents on Christmas eve at midnight. The complainant testified that, sometime after all the presents were open, only he and the accused were still awake. The complainant said that, around 2:30 or 3:00 a.m., the accused asked him to go downstairs with him. There is a pool table and play area in the basement. The complainant said he thought the accused wanted to play pool or something. They both went downstairs. No one else was awake or present at the time. In 2002, the complainant would have been nine years old.

In 2003, he would have been ten. [ 8 ] The complainant said that when they were downstairs, the accused unzipped his own pants, pulled them down a little, removed his penis (the complainant used the term “dick”) and held it in his hand. The complainant testified that the accused told him to come over. The complainant did. The accused then told the complainant to touch his penis with his hands. The complainant did. The accused told him to move his hands on his penis and showed the complainant how he wanted him to move his hands. The complainant said he touched the accused’s penis for about 30 to 40 seconds.

The accused then told the complainant to put his mouth on his penis. The complainant testified that he did that for about 15 or 30 seconds. [ 9 ] The complainant said he did not remember if the accused ejaculated. The complainant did not remember spitting anything out – so he did not think so. The complainant did not say why the encounter ended but he testified that as soon as it did, he went upstairs, closed the door to the basement behind him, went to his bedroom, and went to sleep.

The complainant said he did not have a good memory of what he did after the incident but was confident that the incident occurred in the manner he described. The complainant

testified that this was the only incident of this kind that he experienced with the accused and that he and the accused only spoke about the incident once. [ 10 ] The complainant testified that, for many years after the incident, he had persistent dreams (he called them “bad memories” and “nightmares”). These dreams kept reoccurring and it was upsetting for him. The complaint said that as he got older, he started to believe that maybe his dreams were recollections of real events. However, he did not want to deal with these dreams/memories and so he began using alcohol and drugs.

The complainant said that about 10 years ago (2012 – when the complainant was about 20), he began using hard drugs, including methamphetamine and cocaine. He said the drugs helped him “forget”. The complainant testified that he got sober about five or six years ago (sometime in 2016 or 2017) and has been sober since. In cross-examination, the complainant admitted that he abused drugs for a number of years and that the use of these drugs could cause him to experience things that were not real – he saw or experienced things that were not real.

The complainant testified that, after he got sober, his memories of the incident started to “solidify into reality”. He started to think that maybe his dreams were real. [ 11 ] The complainant said the first person he spoke to about the incident was the accused. The complainant testified that in 2016 or 2017, he and the accused were sitting on the porch of his dad’s house, having a conversation. The accused was drunk. The complainant testified that he had been sober for about a year at this time. The complainant said that, during their conversation, he and the accused talked about the incident.

The accused did not describe the conversation – he just said the accused asked the complainant to forgive him. When asked about the conversation in cross-examination, the complainant only said the accused brought up the incident and asked for his forgiveness. [ 12 ] The complainant said that about three years ago (2019), the complainant spoke to his girlfriend about the incident. He then spoke to his father soon after.

The complaint said he did not tell anyone else about the incident other than his girlfriend and his father at that time. [ 13 ] Tragically, in May of 2020, the complainant’s brother, Boo, passed away. The complainant testified that he believed the accused had “hurt” Boo – that he had caused emotional harm to his brother. The complainant admitted that he blamed the accused for Boo’s death. The complainant testified that, after Boo’s funeral, his memories of the incident began to “solidify”. He said he came to believe that he was not having a reoccurring bad dream – he was remembering actual events.

The complainant then decided to go to the police. He first made contact in January of 2021 and he gave a statement to police in February of 2021. [ 14 ] In cross-examination, the complainant denied the suggestion that the events he described may not have happened – that they were just a bad dream. The complainant was confident the incident happened as he described it. [ 15 ] The complainant brought a memory card from his brother’s funeral to court. He held it tightly while he testified.

Defence Evidence – The Accused’s Testimony : [ 16 ] The accused testified that he has no recollection of the conversation that the complainant said occurred in 2016 or 2017 on the front porch of his father’s house. As for the incident described by the complainant, the accused denied that the incident happened. He denied showing his penis to the complainant, denied asking him to touch it, and denied that any other kind of sexual encounter occurred. [ 17 ] The accused denied being alone downstairs with the complainant at Christmas in either 2016 or 2017.

He testified that, while he (and his sister) would often visit his dad during Christmas, they did not sleep over during these visits. The accused testified that, when he was 15 or 16, they always spent Christmas Eve at his grandparent’s place and then went to his dad’s place on Christmas Day. [ 18 ] In cross-examination, the accused admitted that he also began using methamphetamine in 2020.

ANALYSIS AND CONCLUSION [ 19 ] It is a fundamental principle of criminal law that the Crown must present evidence to the Court to establish each element of the offence and that such evidence must provide proof beyond a reasonable doubt. If the Crown cannot discharge this burden, I must

acquit the accused. If there is evidence inconsistent with guilt and I accept that evidence, I must also acquit. If, after hearing all theevidence, I am left in reasonable doubt by it or I do not know whom to believe, again I must acquit. In a criminal trial, the burden nevershifts from the Crown to prove its case and to do so beyond a reasonable doubt. See: R v W. (D.), (SCC), [1991] 1 SCR742 at pages 757-58. [20] In this case, the credibility of both the accused and the complainant were called into question. The Crown disputed theaccused’s denial that a sexual encounter occurred.

On the other hand, counsel for the accused cautioned that the complainant may havehad a motive to lie. The Crown argued that the complainant’s evidence was clear, cogent and compelling and there is no basis not tobelieve him. Counsel for the accused argued that his client’s testimony was clear, cogent and compelling and that there is no basis not tobelieve him. [21] Credibility is concerned with a witness’s veracity. It’s about a witness’s honesty – his/her willingness to tell the truthwithout amplification or obfuscation. Credibility is not an all or nothing proposition.

A trier of fact may believe all, part or none of awitness’s evidence. Furthermore, a trier of fact may attach different weight to different parts of a witness’s evidence. Finally, anydecision I make to accept or reject any testimony (from the accused or any other witness) must be based on the totality of evidence I haveheard in these proceedings – not based on an evaluation of one person’s evidence in isolation. See: R v R. (D.), (SCC),[1996] 2 SCR 291 at para 93.

See also: R v Wolff, 2019 SKCA 103 at para 38, 380 CCC (3d) 223. [22] I heard two versions of events – one describing a major sexual assault and the other denying that anything like that happened.I am mindful that I must not simply compare the testimony of the complainant and of the accused, and then choose which version ofevents I prefer. To do so would be to misapply the burden of proof. It is possible that a trial judge might not fully believe an accused’sversion of events, but still be uncertain as to what really happened.

In that situation, there is doubt - the benefit of which must go to theaccused (even if the complainant’s version might be more plausible or more believable than that of the accused on a balance ofprobabilities). See: R v Nyznik, 2017 ONSC 4392, 350 CCC (3d) 335. The correct application of the burden of proof requires theCrown to prove its case beyond a reasonable doubt. [23] The accused testified and denied that a sexual encounter occurred as described by the complainant.

While he acknowledgedthat he would commonly spend time with his father and his half-siblings (including the complainant) during holidays and other visits, hedenied that any sexual encounter occurred with the complainant during any of these visits - Christmas or any other time. I found theaccused’s testimony to be clear, cogent, and plausible. I observed no internal or external inconsistencies in the accused’s description ofevents.

On the other hand, as might be expected for an incident that was said to have occurred over 19 years ago, the accused’s denialwas general, and his recollection of concomitant events was vague. [24] Counsel for the accused raised a concern about the complainant’s credibility. Counsel noted that the complainant admittedthat his memory of the alleged sexual encounter did not “crystalize” in his mind until the death of his brother. The complainant alsoacknowledged that he was mad at the accused and blamed him for his brother’s suicide.

Counsel for the accused cautioned that thismight reasonably provide the complainant with a motive to lie. While this caution is well-taken, I find the complainant’s testimony wassufficient to overcome this concern. I observed no internal or external inconsistencies in the complainant’s narration of events, and hisdemeanor was entirely consistent with a witness articulating a difficult and troubling experience.

Simply put, I believe the complainantbelieves that he is telling the truth. [25] Nonetheless, this case turns on whether the Crown has proven beyond a reasonable doubt that the sexual encounter describedby the complainant actually occurred. "Historical" sexual assault cases are not uncommon. However, in such cases, the Court is requiredto use caution in evaluating the adult recollections of childhood experiences because of the potential for distortion or false memories.These concerns have more to do with the reliability of the evidence than the credibility of the witness. See: R v G.D.D., (NS SC).

Reliability does not involve an assessment of a witness’s willingness to tell the truth. It is about a witness’s ability toaccurately retain, recall and communicate facts to the Court. A credible witness’s evidence can be wrong. In this regard, it is importantto remember that confidence in the recital of a memory is not necessarily a good indicator of its accuracy; nor is the mere presence ofdetail. The passage of time and intervening events plays a role in the durability of memory.

See: R v Z.E.B., 2006 NSCC 36 at para. 41. [26] In the present case, the events described by the complainant occurred approximately 20 years ago when he was either nine orten years old. The complainant testified that his initial memories of the incident were that of a dream – a very bad dream. However, hetestified that these dreams were persistent and reoccurring. The complainant said that, when he was an adult, he began to believe thatthese were recollections of actual events - as opposed to the reoccurrence of a bad dream.

The complainant testified that as an adult, hewas not prepared to deal with these memories, and he began abusing alcohol and drugs to help him forget. The complainant testified thathe consumed alcohol and drugs for about four years, including hard drugs like cocaine and methamphetamine. The complainant admittedthat the drugs he used could cause him to experience things that were not real. After he got sober (stopped drinking and using drugs), thecomplainant said that his memories started to become clearer.

The complainant testified that two events crystalized his belief that he wasrecalling real memories of actual events. First, he had a conversation with the accused in 2016 or 2017. Second, his brother committedsuicide in May of 2020. The complainant said his brother’s passing caused his memories of the incident to “solidify”.

[ 27 ] Without a narration of the complainant’s conversation with the accused in 2016/2017, it is difficult to attach weight to this evidence. The complainant clearly believed that during this conversation the accused admitted the incident occurred and was seeking the complainant’s forgiveness because of that incident. However, without knowing what was said, the evidence is ambiguous. I find I cannot attach weight to it as corroboration or otherwise. [ 28 ] Boo’s suicide was clearly a devastating loss for the complainant and his family.

The fact that this tragic loss was a catalyst for the complainant’s conclusion that the accused had sexually assaulted him is deeply troubling. Even without the complainant realizing it, it is possible that the tragic loss of his brother and his belief that the accused was somehow responsible, influenced his conclusion about his own experiences. From the evidence, it appears that the complainant and Boo each had their own struggles. While the complainant overcame his addictions, tragically his brother was not able to survive his struggles.

Having considered the evidence, it is not possible to exclude the possibility that the complainant’s negative feelings toward the accused (because of his belief that the accused bore some responsibility for his brother’s suicide) may have influenced his belief that the accused was also responsible for his own struggles. Obviously, I have no way of knowing whether these events influenced the formation of the complainant’s memories.

However, the possibility that they may have is sufficient to raise a concern about the reliability of the complainant’s testimony. [ 29 ] Finally, the complainant candidly acknowledged that he abused both alcohol and drugs for a number of years. While the complainant testified that he did so to avoid dealing with his childhood trauma, there can be little doubt that the abuse of alcohol and drugs can have lasting physical and mental consequences for a person. My concern is not that the complainant was using alcohol or drugs at the time of the alleged incident – he was not doing either.

My concern is that the complainant’s memories of his childhood may have been hampered or influenced by the period of time when he was abusing alcohol and drugs. [ 30 ] Simply put, while I believe that the complainant believes that he is telling the truth, I have a doubt – a compelling and persistent doubt – that his memories of his childhood have been influenced by subsequent events in his life and may not now be accurate.

It is possible that the tragic loss of the complainant’s brother, together with the complainant’s belief that the accused bore some responsible for his brother’s suicide, coupled with several years of consuming hallucinogenic drugs, may have resulting in the formation of false memories about the complainant’s childhood. Because I have a doubt as to whether the events described by the complainant actually occurred, the accused must be acquitted. Dated this 24th day of November, 2022, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. Schiefner, J