Her Majesty the Queen - v. -, 2011 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 036 Date: February 16, 2011 Information: 24393785 Location: Rose Valley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ashley Gwilliam Appearing: Myrna McCallum For the Crown William Klebeck For the Accused This judgment is subject to an order under s. 486.5(1) of the Criminal Code . Any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. JUDGMENT J.A.

PLEMEL, J [ 1 ] The accused is charged that he did commit a sexual assault on K.T. contrary to section 271(1) of the Criminal Code . The Crown proceeded summarily and the trial was heard on February 2, 2011. At the commencement of trial there was an order under

section 486.5(1) for the non-publication or broadcast of any information which could identify the complainant. For this reason, I will refer to her in my decision as K.T. and the other Crown witness as N.S.

[ 2 ] The issue in this case is whether the accused intentionally put his hand down the front of K.T.’s jeans in the hallway of the Kelvington Bar, and if he did, was it for a sexual purpose without her consent. [ 3 ] The Crown called two witnesses namely K.T. and N.S. The Defence also called two witnesses those being the accused Ashley Gwilliam and Brady Atchison. [ 4 ] K.T. was at the bar in Kelvington, Saskatchewan on the evening in question with her then fiancee, whom she has since married, and N.S. N. S. is a male friend of K.T. and her husband.

These three and others were at a social event called the Mud Bog in Lintlaw, Saskatchewan earlier in the day. [ 5 ] The accused and Brady Atchison were also at the bar that evening. Brady works for Ashley Gwilliam’s father. Ashley Gwilliam referred to him as a friend. They were also at the event in Lintlaw earlier in the day. After leaving the Mud Bog all witnesses ended up at the bar. Mr. Gwilliam and Mr. Atchison were already there when N.S., K.T., her husband and another arrived. They sat down at a table near to where Mr. Gwilliam and Mr. Atchison were sitting.

The evidence is that the accused and Brady Atchison moved to a table in the immediate vicinity of, and nearly joining, that of K.T. and her party at some point in the evening. There was general conversation between the persons at these tables and with others in the bar. All four witnesses were smokers as was K.T.’s husband. They would leave the bar from time to time to smoke outside as smoking was not permitted in the bar. Crown Evidence [ 6 ] To go outside for a cigarette, parties would go through a short hallway leading from the bar to a back door.

K.T. estimated that the length of this hallway was about ten feet. They would smoke outside near that door. From the hallway there is a large opening on one wall through which customers may buy off-sale. Patrons seated in the bar who are facing in the right direction would be able to see through the off-sale area, through the large opening and into the hallway. Light from the off-sale shines into the hallway. The complainant testified that it was not a dark hallway. However, the prosecutor then asked her if it was fair to describe it as dimly lit and she answered , “yes it was”.

It is in this short hallway that the complainant, K.T. testified she was sexually assaulted by the accused. K.T. testified and I accept that she was wearing jeans which were not tight fitting and these had a button snap and zipper on the front. She was wearing a leather belt with a western style buckle. The buckle did not have a tongue but was one which came open by pulling forward on the belt buckle. [ 7 ] K.T. testified that on one occasion when she went out to have a cigarette, her husband was already there as was the accused and another person who she did not know.

I am satisfied that this person was Brady Atchison. Although she left the bar for a cigarette that night on about four occasions, this was the only time the accused was outside smoking at the same time she was. She testified that when she came back in, the accused followed her and, reaching from behind, he opened her western style belt and stuck his hands down the front of her jeans. In answer to a leading question from the Crown, she agreed that he had put his hand on her vagina but had not penetrated her vagina with his fingers. She testified that this happened very quickly, in a minute or less than a minute.

She testified that she froze and she did not yell for help. She told him to let her go. He did and she went quickly into the bar with her pants and belt still open and sat down. [ 8 ] She testified that soon after, the accused came in and, when he walked by her chair, he touched her head with his hand. She told N.S. what he had done in the hallway and shortly after she left the bar and went home. She explained the reason she told N.S. and not her husband while still in the bar, is because her husband at that point was sitting at another table.

She stated that N.S. and her husband arrived home about fifteen minutes after her. Once home, her husband phoned police to report the matter. [ 9 ] In cross-examination she denied a suggestion by defence counsel that she stayed in the bar for up to half an hour after coming in from having the cigarette and during this time may have consumed another bottle of beer.

Defence counsel also asked her if the accused, when she first came into the bar that night from the Mud Bog, had said words to the effect “would you like a nipple rub” or “how about a nipple rub.” She said she did not hear him make that comment to her or any other women in the bar. It was suggested to her in cross-examination that the accused made a similar comment to her when she was outside having the cigarette and that at some point she replied with words to the effect “no, but how about a moustache ride.” She denied that he made those comments to her or that she gave such a reply.

[ 10 ] In cross-examination K.T. agreed that it would take only three to four steps to cover the distance from the outside back door to the end of the hallway which enters the bar. Counsel for Mr. Gwilliam asked K.T the following: “You’re saying that in those four steps Mr.

Gwilliam was able to come up behind you, grab you by the waist, unsnap your western belt, undo it, unzip your jean button, pull your zipper down and put his hands in your pants and he can do that in the four steps that it takes to go from the entrance into the bar.” She answered “yes”. [ 11 ] K.T. testified that prior to this incident she knew the accused to see him but did not know him well. She testified that now, as a result of this incident, she is afraid of him. [ 12 ] N.S. testified that he is a friend of K.T. and her husband.

He stated that K.T. was in a good mood prior to going out for a cigarette but that when she came back in she was shaken up, sad and crying. He testified that her pants were undone and that she told him what happened. He testified that when she told him what happened, the accused walked into the bar and as he walked by her he touched the side of her face. She started crying and walked out of the bar. Defence Evidence [ 13 ] The accused testified that when women came into the bar that night he asked them for a nipple rub. He testified that K.T. was one of the women he made this comment to.

He said that when she came outside of the bar to have a cigarette he asked her if she had come out for her nipple rub and she said no. Later after they finished their cigarettes he again asked her if she was now ready for her nipple rub and she responded no, but how about a moustache ride. He testified that K.T. then entered the back door of the bar and he chased after her to “maybe pinch her hips” but that he stumbled and missed and grabbed onto her to keep himself from falling. He believes he grabbed her by her front and held onto her stomach as he fell.

He said he was just “goofing around.” He denied opening her belt and putting his hand down the front of her jeans. He also denied touching her head or face with his hand as he passed her table when he came back into the bar. Brady Atchison said he heard the accused make comments to K.T. about a nipple rub and also K.T.’s comments about a moustache ride. He testified that these comments were made while K.T’s husband was still outside. K.T.’s husband finished his cigarette first and returned into the bar. I am unable to determine whether or not these comments were made. All of the parties had been drinking.

K.T. estimated that on a scale of one to ten with one being sober and ten being extremely drunk, she was a three. Using the same scale N.S. put himself at a five. Mr. Gwilliam estimated he was between a 5 and 7. Mr. Atchison placed himself at about 6. Mr. Atchison testified both he and Mr. Gwilliam were intoxicated and that he felt the accused was more intoxicated than he was. [ 14 ] Brady Atchison testified that he followed the accused into the bar after they finished their cigarettes. He said it is a door which closes slowly and that he caught it before it closed.

K.T. and the accused may have been in the hallway about five seconds before he entered. He testified he saw the accused stumble into K.T. Neither of them fell down. He acknowledged that he would not have been able to see the front of K.T. at this time. He did not see the accused put his hand into the front of K.T.’s jeans. Decision [ 15 ] I am satisfied that the accused intentionally shoved his hand down the front of K.T.’s jeans for a sexual purpose. I am satisfied that when he did this her belt buckle and snap button came undone and that her zipper opened. I do not know how far her zipper opened .

I am satisfied that K.T. did not consent to Mr. Gwilliam putting his hand down the front of her jeans. I do not believe that he opened her belt, undid her button, unzipped her zipper and put his hands into her pants in separate motions. As defence counsel argued, this would have been difficult to do in the few steps it would take to go down the hallway from the back door into the bar. I believe the belt and button opened and the zipper came down in one motion as he put his hand down the front of her jeans.

While I am suspicious that his hand was on the inside and not the outside of her panties and may have touched her vagina, I am not satisfied of that beyond a reasonable doubt. These were her responses to leading questions. Even though I am satisfied he intentionally grabbed her and touched her inside her jeans for a sexual purpose, it happened very quickly and when he did this she understandably froze and became quickly distraught.

While I believe she was attempting to be credible in her testimony on this point, I also believe that his hand may have been outside her panties and in the area of, but not touching, her vagina.

[16] I do not believe the accused’s evidence that he simply stumbled and fell into her, grabbing on to her stomach to keep fromfalling. I believe that what Brady Atchison saw as he entered the door was not the accused falling into her but grabbing her as shetestified. The evidence of the accused, even when considered along with Brady Atchison’s, does not leave me with a reasonable doubt. [17] It was suggested that K.T. may have had reason to complain of sexual assault because her husband may have been jealousgiven comments about nipple rubs and moustache rides. There is no evidence to support this.

When K.T. was asked if her husband wasa jealous person she replied “no that I know of.” Even if he was a jealous person, I do not believe that she would open her belt, button and zipper to make it look like she had been sexually assaulted. I am satisfied on her evidence and that of N.S. thatwhen she came into the bar she was distraught, and that her belt and pants were open. K.T.’s testimony in this regard is consistent withthe evidence of N.S. This was a direct result of her having been sexually assaulted by the accused in the hallway.

Furthermore, I amsatisfied that the accused intentionally touched her head or face as he walked past her going back into the bar and that this was simplyanother unsolicited, unwanted contact he inflicted on her after he sexually assaulted her. She had no reason to fabricate theseincidents. Brady Atchison may not have seen the accused touch her head or face back in the bar but that is consistent with him notlooking at them when it happened.

The assault itself happened in the hallway and, while it might have been possible for others in thebar to see it occur if they had been looking in the direction of the off-sale opening, it is not surprising that it went unobserved. [18] While Mr. Gwilliam may have thought this was playful “goofing around” K.T. was not consenting to it and had not givenhim any reason to believe that he could touch her in this way.

I believe that alcohol may have been a factor affecting his judgment atthe time but his state of intoxication does not in this case provide him with a defence. [19] In reaching this conclusion I am mindful of the comments of the Supreme Court of Canada as it relates to the assessment ofcredibility in cases such as these. [R. v S. (W.D.) (SCC), 34 C.R. (4th) 1] Firstly, I do not believe the accused when hetestified that he accidentally fell into K.T. and perhaps grabbed her in the area of her stomach to keep from falling. Secondly, hisevidence does not leave me with a reasonable doubt.

Thirdly, based on the evidence I have heard, I am convinced beyond a reasonabledoubt of the guilt of Mr. Gwilliam. Conclusion [20] I therefore find him guilty of sexual assault as charged. _____________________ J.A. PLEMEL, J