HER MAJESTY THE QUEEN v. X.V., 2022 NBPC 3

File No.: Y643702 Neutral Citation: 2022NBPC03 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF SAINT JOHN Between: HER MAJESTY THE QUEEN -and- X.V. DECISION BEFORE: The Honorable Judge Alain Bégin (Appointed as extra-provincial judge as per s. 4.5(1) of the Provincial Court Act of New Brunswick , RSNB 1973, c P-21) AT: Saint John, New Brunswick DATE OF DECISION: May 5, 2022 CHARGES: CC 271, CC 151 APPEARANCES: Rachel Anstey for the Crown Charles Bryant for the defence There is a Publication Ban protecting the identity of the victim, N.F., as well as X.V. considering that this is a Youth Justice

There is a Publication Ban protecting the identity of the victim, N.F., as well as X.V. considering that this is a Youth JusticeCourt matter. All emphasis added) [1] This was a criminal trial. The Crown had the onus of establishing beyond a reasonable doubt that X.V. committed the offensesof Sexual Assault (s.271) and Touching for a Sexual Purpose someone under the age of 16 (s.151). [2] The onus of proof never switches from the Crown to the accused. Proof beyond a reasonable doubt does not involve proof toan absolute certainty. It is not proof beyond any doubt. Nor is it an imaginary or frivolous doubt. In R. v.

Starr (2000) 2000 SCC 40, 2SCR 144, the Supreme Court of Canada held that this burden of proof lies much closer to absolute certainty than to a balanceof probabilities. Mere probability of guilt is never enough in a criminal matter. [3] The Supreme Court of Canada in R. v. Lifchus (SCC), [1997] 3 SCR 320 noted at paragraph 39: “39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given alongthese lines: The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think that it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice.

Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short, if based on the evidence before the Court, you are sure that the accused committed the offence, you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt.” [4] It is settled law that an accused person bears no burden to explain why their accuser made the allegations against them. Reasonable doubt is based on reason and common sense. It is logically derived from the evidence or the absence of evidence. [5] In R. v. W.D. the Supreme Court of Canada indicated the manner in which a trial court should assess the evidence of anaccused who testifies.

The accused’s evidence is treated in a way different from other evidence. I must consider whether I believe theaccused’s evidence, and if so, then he is entitled to be acquitted on a charge where I believe his denial.

Even where I do not believe theaccused’s evidence, if it serves to raise a reasonable doubt in relation to his guilt for any of the occurrences, then he is entitled to thebenefit of the doubt and he is entitled to be acquitted of the charges relating to that occurrence. [6] Even where I do not believe the accused, and his evidence fails to raise doubt, I must still consider whether on the evidence Ido accept, if the Crown has proved the essential elements of each offense beyond a reasonable doubt. I may only convict the accused ofoffenses proven beyond a reasonable doubt.

Proof beyond a reasonable doubt also applies to issues of credibility. [7] Finally, if I am left in doubt where I don’t know who or what to believe, then I am by definition in doubt and the accused isentitled to the benefit of the doubt. Having said that, however, the accused’s evidence is not considered in isolation. It is part of thewhole of the evidence that I have heard and must consider. [8] A criminal trial is not a credibility contest. [9] On the issue of credibility I am guided by the case of Faryna v.

Chorny [1952] 2 DLR 34 where the Court held that the testfor credibility is whether the witness’s account is consistent with the probabilities that surrounded currently existing conditions. Thecredibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of the truth.

In short, the real test of the story of the witness in such acase must be how it relates and compares with the preponderance of the probabilities which a practical and informed personwould readily recognize as reasonable in that place and in those conditions.

[10] Or as stated by the Nova Scotia Court of Appeal in R. v. D.D.S. 2006 NSCA 34 , [2006] NSJ No 103 (NSCA),“Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeatedtesting of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidencepertaining to it, while applying the appropriate standard of proof in a …criminal trial?” [11] With respect to the demeanour of witnesses, I am mindful of the cautious approach that I must take in considering thedemeanour of witnesses as they testify.

There are a multitude of variables that could explain or contribute to a witness’ demeanour whiletestifying. As noted in D.D.S., demeanour can be taken into account by a trier of fact when testing the evidence but standing alone it ishardly determinative. [12] Credibility and reliability are different. Credibility has to do with a witness’s veracity, whereas reliability has to do with theaccuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately observe, recall and recountevents in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. [13] Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence. Reliabilityrelates to the worth of the item of evidence, whereas credibility relates to the sincerity of the witness. A witness may be truthful intestifying, but may, however, be honestly mistaken. [14] The relationship between reliability and credibility was explained in Cameco Corporation v.

The Queen, 2018 TCC 195: [11] The reliability of a witness refers to the ability of the witness to recount facts accurately. If a witness is credible, reliabilityaddresses the kinds of things that can cause even an honest witness to be mistaken. A finding that the evidence of a witness is not reliablegoes to the weight to be accorded to that evidence. Reliability may be affected by any number of factors, including the passage oftime. In R. v. Norman, (ON CA), [1993] O.J.

No. 2802 (QL), 68 O.A.C. 22, the Ontario Court of Appeal explainedthe importance of reliability as follows at paragraph 47: …The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable.Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount... [15] As well, the Ontario Court of Appeal in R. v.

G(M) (ON CA), [1994] 73 OAC 356 stated at paragraph 27: “Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness…But wherethe inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency candemonstrate a carelessness with the truth.

The trier of fact is then placed in the dilemma of trying to decide whether or not itcan rely on the testimony of a witness who has demonstrated carelessness with the truth.” And at paragraph 28, “…it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of theother evidence presented…….While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, aseries of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliabilityof the witness’s evidence.

There is no rule as to when, in the face of inconsistency, such doubt may arise, but at least the trier of factshould look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. This is particularly sowhen there is no supporting evidence on the central issue…” [16] A credibility assessment is not a science. As noted in R. v.

Gagnon, 2006 SCC 17(S.C.C.), para.20, it is not always possible to"articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attemptingto reconcile the various versions of events... And in R. v. M. (R.E.), 2008 SCC 51(S.C.C.), para. 49 the Court noted that "Assessingcredibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization." [17] In the case of R. v.

Reid (2003) 167 (OAC) the Ontario Court of Appeal stated that although the trial judge is at liberty toaccept none, some, or all, of a witness’ evidence, this must not be done arbitrarily. When a witness is found to have deliberatelyfabricated criminal allegations against the accused, the trial judge must have a clear and logical basis for choosing to accept one part ofthat witness’ testimony while rejecting the rest of it. [18] There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety: NovakEstate, Re, 2008 NSSC 283(N.S.S.C.).

On the contrary, a trier may believe none, part or all of a witness's evidence, and may attachdifferent weight to different parts of a witness's evidence. [19] A trier of fact is entitled to believe all, some, or none of a witness’ testimony. I am entitled to accept parts of a witness’evidence and reject other parts. Similarly, I can afford different weight to different parts of the evidence that I have accepted. [20] It is important to remind myself of my role, and duty, as the trial judge. The Nova Scotia Court of Appeal in R. v.

Brown (NS CA), [1994] NSJ 269 (NSCA) confirmed at paragraph 17 that: “…There is a danger that the Court asked itself the wrong question: that is which story was correct, rather than whether the Crownproved its case beyond a reasonable doubt.” [21] And at paragraph 18 of that same Brown case the Nova Scotia Court of Appeal referred to paragraph 35 of the BC Court ofAppeal case R. v. K.(V.) which stated:

“I have already alluded to the danger, in a case where the evidence consists primarily of the allegations of a Complainant and thedenial of the accused, that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgement I noted thegender-related stereotypical thinking that led to assumptions about the credibility of Complainants in sexual assault cases which we haveat long last discarded as totally inappropriate.

It is important to ensure that they are not replaced by an equally pernicious set ofassumptions about the believability of Complainants which would have the effect of shifting the burden of proof to those accused of suchcrimes.” [22] In the case of R. v. Mah 2002 NSCA 99, the Court stated: “The W.D. principle is not a magic incantation which trial judges must mouth to avoid appellate intervention. Rather, W.D. describeshow the assessment of credibility related to the issue of reasonable doubt.

What the judge must not do is simply choose betweenalternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limitedone of deciding whether the essential elements of the charge have been proved beyond reasonable doubt…the ultimate issue is notwhether the judge believes the accused or the complainant or part or all of what they each had to say.

The issue at the end of the day in acriminal trial is not credibility but reasonable doubt.” [23] The Mah case makes it clear that my function as a judge at a criminal trial is not to attempt to resolve the broad question ofwhat happened. My function is more limited to having to decide whether the essential elements of the charges against the accused havebeen proved beyond a reasonable doubt. The onus is always on the Crown to prove the elements of the offenses beyond a reasonabledoubt. The onus is not on the Defence to disprove anything.

My Analysis of the Evidence [24] I have reviewed the evidence that was presented at the trial. It is not my function as a trial judge when rendering a decision toact as a court reporter and recite all the evidence that I have heard and considered. It suffices for me to highlight the pertinent parts. Further, any quotes that I attribute to a witness may not be an exact quote but will paraphrase and capture the essence of their testimony. Cst. Doiron [25] Cst. Doiron was the lead investigator for this matter, and she observed the video interview of N.F. that took place on March 25,2021, with the social worker.

She confirmed the date of birth of N.F. to be […], 2014, and the date of birth of X.V. to be […], 2004. This means that X.V. would have been 16 years old at the time of the alleged offenses. N.F. [26] N.F. was 7 years old when she testified about events that occurred when she was 6 years old. [27] In R. v. Stewart (1994) (ON CA), 90 CCC (3d) 242 (Ont.CA) the Ontario Court of Appeal stated that thetestimony of children should not be subjected to a lower level of scrutiny than that of adults. [28] In R. v.

W.R. (1992) (SCC), 74 CCC (3d) 134 (SCC) where the Supreme Court of Canada stated that thesame standard of proof applies and, just as with adults, a judge is free to treat a child’s evidence with caution where the circumstances ofthe case indicate caution is appropriate. [29] R. v. W.R. also stated that inconsistencies about those events, particularly about peripheral matters such as time and place,should be noted in the context of the witness’ age at the time. [30] In R. v.

Utinen (2017), 2017 BCCA 320 , 355 C.C.C. (3d) 371 (BCCA) SCC leave refused, the BC Court of Appealstated that the whole of the complainant’s evidence, including internal consistencies between the videotaped statement and trial evidence,should be scrutinized to determine whether the inconsistencies relied on by the Defence give rise to reasonable doubt. [31] In the case of R. v.

H.(D.) 2016 ONCA 569 the Ontario Court of Appeal stated that where there is inconsistency about a keyfact the judge will be unable to accept the witness’ testimony about this fact unless there is a rational basis for preferring the in courtversion to the prior inconsistent account.

In a judge alone trial, if the internal inconsistencies are material enough, or frequent enough, itcan be a legal error to rely on that witness unless the trial judge articulates a reasoned basis for doing so despite those difficulties. [32] N.F. testified: - that X.V. is her father’s brother - that X.V. “pulled down my pants and put his finger in my butt” and she denied that he did anything else to her - She specifically denied any touching of her vagina by X.V. - that his finger would be in her butt “only for a second” - that the sexual touching by X.V. occurred on the couch where X.V. would sleep when he would come to visit her house and stayovernight - that it happened “a lot” of times

[ 33 ] On cross-examination, N.F. testified: - that on some occasions that she would have a bad dream and that this would wake her up - That on some occasions that X.V. would bring her from her room to the couch - Family members became aware of the touching when she said to X.V. in front of Amanda “why did you touch my butt every single night?” K.H. [ 34 ] K.H. is N.F.’s mother and she is engaged to X.V.’s brother. X.V. would come to visit them in St. John from a group home in St.

Stephen, and these visits occurred between June 2020 and February 2021. [ 35 ] In February 2021 N.F. accuses X.V. of doing sexual things to her. She confronts X.V. and he denies the allegations.

X.V. did acknowledge rubbing N.F.’s leg, and then acknowledged patting her backside, but he denied the serious sexual allegations. [ 36 ] K.H. stated that on occasion she would wake up to find N.F. and X.V. sleeping at opposite ends of the couch. [ 37 ] K.H. stated that N.F. had issues with a sore vagina in the evenings and that she would bathe her to soothe her, and that this issue no longer existed after X.V. stopped visiting.

We need to keep in mind when considering this evidence that in her interview with the social worker N.F. very clearly knew the difference between her butt and her vagina, and that N.F. was adamant that nothing happened with her vagina. [ 38 ] In cross-examination K.H. stated that X.V. would have visited more than 10 times, with his visits being every 2 nd or 3 rd weekend.

C.C. [ 39 ] C.C. is X.V.’s brother, and he described his relationship with X.V. as “the very best” and that they were “really close.” [ 40 ] C.C. was in the room when N.F. made the comments “you let me do it before” and “you touched my butt” to X.V. in February 2021. [ 41 ] C.C. and K.H. ask X.V. about the allegations and he denies them. The questioning of X.V. goes on for an extended period of time.

During the questioning X.V. is told by C.C. that if he had done anything to N.F. that it was time “to own up to it.” [ 42 ] X.V. denies the allegations but he does acknowledge that on occasion that N.F. would have nightmares and that he would take her to the couch to comfort her. [ 43 ] Of note with this evidence is that a 16-year-old boy is being intensely questioned by this brother that was like a father-figure to him, is told to own up to it, and despite lengthy questioning, X.V. never acknowledges any sexual touching.

This was a very emotional event for both C.C. and X.V., yet X.V. still never confesses to any sexual touching. X.V. [ 44 ] X.V. testified that he would have visited C.C.’s house between 15 and 20 times between June 2020 and February 2021. [ 45 ] He testified that N.F. only slept on the couch twice, once by his feet, and once by his side. On one of those occasions N.F. was having a nightmare, and on the other occasion she had wet her bed. [ 46 ] X.V. denied telling C.C. and K.H. that he admitted to patting or rubbing N.F. to comfort her. [ 47 ] X.V. denied touching N.F.’s rectum or vagina.

He denied ever dressing or undressing N.F. He denied taking N.F. from her bed. [ 48 ] On cross-examination X.V. denied telling C.C. and K.H. that he had rubbed N.F., but he did acknowledge saying that “If I picked her up that is the only way that I would have touched her.” [ 49 ] X.V. was very composed, calm, and non-confrontational while he was on the stand. [ 50 ] X.V. confirmed that he was “very upset” when he was being questioned by C.C. and K.H. Part of his upset was that X.V. could not believe that N.F. would say what she said about him.

The Law on Absolute Denial [ 51 ] There was an absolute denial of any wrongdoing or criminal behaviour by X.V. towards N.F. With regards to an absolute denial, I am guided by the decision of Justice Campbell of R. v. Twinley 2020 NSSC 266 . [ 52 ] At para 8:

“…There was a denial. It is of course difficult to elaborate on a denial. But, standing on its own, the denial was not contradictory or inherently untruthful. Standing on its own, without having regard to the other evidence in the trial, there would be no reason to not believe it. ” [ 53 ] At para 17: “The Judge addressed the complainant’s lack of a motive to lie. The defendant in a criminal matter is under no obligation or onus to show that the complainant had any motive at all.

The fact that there was no motive for the complainant to lie was a factor that the Judge could and did take into account in assessing credibility.” [ 54 ] Para 18: “The assessment of credibility is notoriously difficult to articulate. The trial Judge has the benefit of seeing and hearing witnesses in order to make that assessment. Trials happen with witnesses and cross-examination so that judges can see and hear the witnesses and make that determination...” [ 55 ] Paras 19 and 20: “[The] denial was plausible and believable. There was nothing within that denial that would cause one to doubt it.

He was not moved from that denial on cross-examination. By then accepting the evidence of the complainant the Judge, on this argument, turned the case into a contest of credibility…” “This is a problem faced in many sexual assault cases. There are only two witnesses. The complainant gives evidence about a sexual assault having taken place. The defendant provides a denial that is forceful, internally consistent and consistent with all the other evidence, except that of the complainant .

If a “contest of credibility” in that sense, were to be strictly avoided, a not guilty verdict would be required in every such case. But it is not. That is because a “contest of credibility” means a weighing of the evidence of one against the evidence of the other to determine which of the two is more worthy of belief. Simply deciding which of the two witnesses is more believable and making a finding of guilt based on that determination is faulty legal reasoning.

It fails to recognize the burden of the Crown to prove guilt beyond a reasonable doubt. ” [ 56 ] Paras 21 and 22: “ Assessing the evidence of the complainant against the evidence of the accused and assessing the evidence of the accused against the evidence of the complainant is part of the assessment of all the evidence as required in a criminal case. The purpose is not to determine which is more believable. It is to determine whether the Crown has proven the guilt of the accused beyond a reasonable doubt. An accused person may provide a denial that is, on its face, believable.

When considered in light of the complainant’s evidence however, it may no longer be as believable. The complainant’s evidence may cast doubt on the denial. Trial judges are required to struggle with those competing versions of events in many cases.

The issue is not just whether the accused person’s denial is less believable than the complainant’s evidence, or even if it is quite a bit less believable than the complainant’s evidence, but whether it raises a reasonable doubt as to the accused person’s guilt.” “That process can become problematic when a trial judge accepts the evidence of the complainant and puts an unspoken onus on the accused person to disprove that evidence.

That process can also be problematic when the trial judge simply accepts a denial on its face without testing it against the other evidence in the trial, including the evidence of the complainant. Evidence is not assessed in a hermetically sealed compartment and only tested for internally inconsistencies. It is tested against all the other evidence and doing so does not create a contest of credibility. If a denial is assessed against all the other evidence and raises a reasonable doubt the accused person should be found not guilty.

A denial that raises a reasonable doubt, standing on its own, without being assessed against the other evidence, has not been properly assessed. ” The Crown’s Burden for s. 271 – Sexual Assault [ 57 ] To find X.V. guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt: i. that X.V. intentionally applied force to N.F.; ii. that N.F. did not consent to the force that X.V. intentionally applied. iii. that X.V. knew that N.F. did not consent to the force that X.V. intentionally applied; and iv. that the force that X.V. intentionally applied took place in circumstances of a sexual nature. [ 58 ] To be clear, consent is NOT possible with regards to these allegations as N.F. would have been 6 years of age.

I will therefore focus my deliberations on whether X.V. intentionally applied force to N.F. and whether the force that X.V. intentionally applied took place in circumstances of a sexual nature. [ 59 ] If Crown counsel has not satisfied myself beyond a reasonable doubt of each of these essential elements, I must find X.V. not guilty of sexual assault. If Crown counsel has satisfied myself beyond a reasonable doubt of each of these essential elements, I must

find X.V. guilty of sexual assault.

The Crown’s Burden for s. 151 - Sexual Interference [ 60 ] To find X.V. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt: i. that N.F. was under sixteen (16) (years old) at the time; ii. that X.V. touched N.F.; and iii. that the touching on N.F. was for a sexual purpose . [ 61 ] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find X.V. not guilty of sexual interference. [ 62 ] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find X.V. guilty of sexual interference.

Was N.F. under 16 years old at the time? [ 63 ] I am satisfied beyond a reasonable doubt that N.F. was under 16 years old at the time. I must go on to the next question. Did X.V. touch N.F.? [ 64 ] Touching involves intentional physical contact with any part of X.V.’s body. The contact may be direct, for example, touching with a hand or other part of the body, or indirect, for example, touching with an object. Force is not required but an accidental touching is not enough.

It does not matter whether N.F. agreed to the touching. [ 65 ] In reviewing the evidence, I am not satisfied beyond a reasonable doubt that X.V. touched N.F. so my inquiry stops here. Decision [ 66 ] N.F. was a straight-forward 7-year-old witness, and very ‘matter of fact’ as she testified. [ 67 ] X.V. was a witness who spoke calmly and credibly.

I am particularly struck by the fact that when X.V. was confronted by his older brother (and father figure) and told to “come clean” in a very emotional questioning by him, that X.V. did not confess in a scenario that would have very likely elicited a confession. [ 68 ] I noted at the start that I was guided by the case of R. v. W.D. and that I must first consider whether I believe X.V.’s evidence, and if so, then he is entitled to be acquitted on the charges where I believe his evidence.

I do believe the evidence of X.V. so I must find X.V. not guilty of the alleged offenses. [ 69 ] This does not mean that I do not believe N.F., but as previously noted, criminal trials are not credibility contests, and when applying R. v. W.D., and my believing the evidence of X.V., I have no choice but to find X.V. not guilty. [ 70 ] As I previously noted, in R. v. Starr the Supreme Court of Canada held that the burden of proof lies much closer to absolute certainty than to a balance of probabilities.

Mere probability of guilt is never enough in a criminal matter. [ 71 ] And as noted in Lifchus , even if I believe that X.V. is probably guilty or likely guilty, that is not sufficient. In those circumstances I must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy me of the guilt of X.V. beyond a reasonable doubt. Judge Alain Bégin, JPC (Appointed as extra-provincial judge as per s. 4.5(1) of the Provincial Court Act of New Brunswick , RSNB 1973, c P-21 )