Her Majesty the Queen - v. -, 2014 SKPC 79

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 079 Date: April 11, 2014 Information: 39987963 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Waffle Appearing: Will Collins For the Crown Michael Nolin For the Accused Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. JUDGMENT B.M.

KLAUSE , J [ 1 ] Charles David Waffle is charged with the following two counts: 1. Between the 16 th day of August 2008 and the 30 th day of September 2011 at or near Saskatoon, Saskatchewan did commit a

sexual assault on A.S., contrary to s. 271 of the CCC. 2. Between the 16 th day of August 2008 and the 30 th day of September 2011 at or near Saskatoon Saskatchewan did for a sexual purpose, touch, directly or indirectly, with a part of the body, of A. S., a person under the age of sixteen contrary to s. 151 of the Criminal Code of Canada . [ 2 ] The Information was sworn May 30, 2013. The accused appeared in court room number 1 on that same date, the crown proceeded by indictment and the crown consented to the accused’s release on various conditions with a return date of June 6,2013.

He appeared again on June 6, 2013 and adjourned the matter to June 20, 2013, (2:00) #4. On June20, 2013 he again appeared in person and adjourned the matter to July 16, 2013, (9:30) #4 with Ms. Towstego assigned to act for him. On July 16, 2013 he appeared and elected trial by Provincial court judge and set January 27, 2014 for his trial and October 11, 2013 for case management. [ 3 ] He next appeared on July 29, 2013 in custody on a breach allegation. The Crown opposed his release but consented to his release on July 31, 2013 with some minor adjustments to his undertaking.

The previous dates of October11, 2013 for case management and January 2, 2014 for trial were confirmed. Mr. McGuire was acting for him. On October 11, 2013 the case management hearing was held and the trial date confirmed with Ms. Towstego acting and appearing for the Accused who was not present. On November 15, 2013 he was again in custody on a breach charge but released November 18, 2013 by consent with Mr. McGuire acting and adjourned for trial to the previously set date of January 27, 2014.

The trial was heard with Michael Nolin acting for the accused on January 27, 2014. [ 4 ] In total the Accused appeared on this Information a minimum of nine times, in person and in person accompanied by counsel. [ 5 ] The Information also states his date of birth as June 21, 1988. At no time, is there any record of an application to amend his DOB on any of the occasions on which he appeared in court. The matter was always heard in Adult court and never in Youth court. [ 6 ] The Crown called three witnesses.

The Defence called no witnesses. [ 7 ] The Crown alleges that during the time frame of the Indictment that the accused either sexually assaulted the complainant or touched her for a sexual purpose on three occasions. [ 8 ] The first witness for the Crown was Sergeant Ellingboe who was called to establish the video recording taken of the complainant. That recording was made November 7, 2012 at which time the complainant would have been 14 years old.

In 2012 the accused would have been 24 years of age. [ 9 ] The complainant testified via an adoption of her previously videotaped evidence which she confirmed accurately presented her evidence. Identity was not an issue. She testified that her date of birth is August 16,1998. [ 10 ] In the video she outlines three separate incidents involving the accused. In the first incident, she indicated she was at her house with her mother and his sister present. The accused entered the house and tried to french kiss her and when he hugged her, he stuck his hands down the back of her pants.

She indicated that while her mother was present, she is an alcoholic and apparently would not have noticed the interaction between her and the accused who is also a friend of the mother. There had been some conversation between the two on Facebook and he had asked about her virginity when he was visiting at her mother’s house when she was 12 years of age. [ 11 ] The second incident is referenced to having occurred in a park. The accused had apparently asked her to meet him in the park so they could shoot some hoops. It was late at nite or late afternoon and people were coming and going at the park.

Somehow her pants became unzipped and the accused unzipped them further so it was easier for him to get his hand inside her pants. She indicated that she was a bit scared, that the accused was trying to hug her, that she wanted to get away but he put his hands down her pants and started “fingering” her. He asked her if she liked it, she said stop and she was not sure if he heard her as she was speaking very softly.

[ 12 ] The third incident occurred at the accused’s house on a day when his girl friend was out and their child was at his mothers. The complainant and the accused were watching some form of entertainment and he started to touch her breasts and subsequently removed her pants and underwear. She indicated that she just laid there because she was so scared. Then he started fingering her and put his mouth on her “privates” i.e. her vagina. He then took off his pants and that is when she decided it was time for her to leave. He walked her half way home.

She indicated that a year had elapsed between the incident at her house and the incident at his house. On the third occasion he told her not to tell anyone that they had met. [ 13 ] She was not seriously challenged in cross-examination. She agreed that she had “flirted” with the accused and that she had a crush on the accused.

She agreed that the incidents came to light when she told her boy friend who told her social worker who then told “Melanie” a worker at Red Willow Centre. [ 14 ] In re-direct she confirmed that during the first incident she felt his tongue in her lips and she did not respond; that he had his hand down her pants but he did not get his hands under her underwear. [ 15 ] The third witness for the Crown was Ms. Mitten who is the estranged girlfriend of the accused with whom she shares a daughter, aged five. She is 26 years old and advised that her relationship with the accused lasted three to four years.

They lived at many addresses including the apartment on Appleby Street. She indicates that they had a computer and she noticed that he was messaging the complainant, telling her that he loved her, he would not hurt her and he wished to sleep with her and have children with her. She testified that she knew that the complainant was 13 years old at the time of the messaging and saw between four and six texts. These texts upset her and she told him to stop texting the complainant as she was underage, they were a couple and they had a kid together. He advised her that he had met with the complainant which upset Ms.

Mitten. The accused advised her that “ she (i.e. the complainant) was wet and smelled sweet.” This conversation occurred at the Appleby apartment. [ 16 ] In cross-examination she advised of further sexual impropriety on the part of the accused with other females and advised that they eventually split up. She admitted to some short term memory loss and alcohol problems but denied she had a serious problem with either drugs or alcohol. [ 17 ] The defence called no witnesses.

The Crown seeks a conviction on both counts and submits that consent is not an issue because of the ages of the two parties at the time of the incidents. The defence submits that since the Crown has failed to prove or establish the age of the accused , that the defence of consent is still available to his client. Analysis [ 18 ] The Crown called three witnesses. The accused called no evidence. I am therefore left to consider the evidence of the complainant, the former girlfriend of the accused and of course, the police video taken by Sergeant Ellingboe.

The complainants evidence on the video taken in 2012 is fairly short and devoid of detail in terms of time and place. However, I found the complainant to be credible, somewhat embarrassed by the whole thing but unwilling to exaggerate her evidence. In short, I found her evidence to be reliable and I accept it as being an accurate rendition of what transpired between herself and the accused on these three incidents. The last witness for the Crown was equally credible and I accept her evidence in its entirety as well.

Neither witness made any attempt to exaggerate their evidence; they were not argumentative or difficult during their cross- examination and the evidence of the third witness, Ms. Mitten tends to corroborate the details of the third assault referred to by the complainant. [ 19 ] In argument the Crown urges me to accept the Crown evidence and convict the accused. They argue that consent is not a defence due to the differences in age of the accused and the complainant. [ 20 ] By contrast the Defence argues that the Crown is obligated to prove the age of the accused and without that proof, that they

can rely on the defence of consent as permitted in s. 150.1(2). The relevant sections of the Criminal Code of Canada are as follows: s. 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under 151 or 152 or subsection 153(1) ,160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it isnot a defence that the complainant consented to the activity that forms the subject matter of the charge.

(2) When accused is charged with an offence under s 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 12years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subjectmatter of the charge if the accused (

a) is less than two years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship ofdependency and is not in a relationship with the complainant that is exploitative of the complainant. . . .

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1)unless the accused took all reasonable steps to ascertain the age of the complainant. [21] I note for the record that the Information charging the accused has been before the Court on several occasions prior to the trialof the matter before me on January 27, 2014. The accused has appeared in person and with counsel on many occasions.

He has submittedto the jurisdiction of the adult court and has never objected to that jurisdiction nor apparently has he ever requested that he be tried as ayouth where much more lenient sentencing provisions would apply if he were to be convicted.

The Information in addition contains hisdate of birth which is listed as June 21, 1988. [22] We know that the complainant at all material times contained in the Information was under the age of 14 as the videotape ofher evidence was provided to Sergeant Ellingboe on November 7, 2012. [23] The Information charges the accused with offences occurring between August of 2008 and September, 2011. The complainantwas born in 1998 and thus would have been 10 in 2008, 11 in 2009, 12 in 2010 and 13 in 2011. [24] The accused was born in 1988 and thus would have been 20 in 2008, 21 in 2009, 22 in 2010 and 23 in 2011.

The Law [25] At common law, the burden of proving an exception or excuse rests on the accused (R. v. Hunt, [1987] A.C. 352 HL; Criminal Pleadings and Practice in Canada 2nd edition, 9:5030.). The extent to which the accused bears the burden has been discussed in cases atmany levels. In R. v. Schwartz ( (SCC), [1988] 2 S.C.R. 443), the Supreme Court analysed the issue of whether a reversalof onus to the accused was an infringement of the accused’s Charter rights. Dickson, C.J.C., in dissent opined that the accused need onlyput the “issue into play”. Bayda C.J. S., in R. v. Lewko (2002 SKCA 121 , [2002] S.J.

No. 622) preferred the dissentingargument of Dickson, C.J.C.: What is the extent of the evidential burden? The defendant need only raise the question of the possibility of a reasonable excuse. In thewords of Dickson C.J.C. in Schwartz, supra, he need only put the “issue into play”.

[26] The burden has been statutorily incorporated into the Criminal Code for

summary matters, where s. 794(2) construes theburden of proving an exception, prescribed by law which operates in favour of the defendant, as being that of the defendant and that theCrown is not required to prove the exception, except in rebuttal. [27] Section 794(2) states that: The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [28] The argument and

interpretation of Dickson C.J.C. in Schwartz was adopted by the Saskatchewan Court of Appeal in Lewko,in discussing the defence of reasonable excuse, where Bayda C.J.S. interpreted s. 794(2) so as to impose an evidentiary burden on thedefence. Subsequent decisions both from Saskatchewan as well as other jurisdictions have debated Bayda C.J.S.’s

interpretation. Frankel J.A., of the British Columbia Court of Appeal provided an extensive historical analysis of s. 794 and its origins, in R. v. Goleski,(2014 BCCA 80). He concluded by interpreting s. 794(2) as placing evidentiary and persuasive burdens upon the defence in relevantsituations. At minimum, therefore, the defence has the evidentiary burden. [29] The Criminal Code is moot with respect to the burden of proof in relation to indictable matters.

Therefore, the common law is determinative (Criminal Pleadings and Practice in Canada 2nd edition, 9:5030). [30] The Crown must prove the exception if it is a “constituent element” of the charge. The case of R. v. Thompson (1992), 1992ABCA 259 , 76 C.C.C. (3d) 142 (Alta. C.A.) is authoritative on the

interpretation of s. 150.1(2)(a), and states that the burden ison the accused to prove the consent defence provided. In Thompson, the Alberta Court of Appeal opined that: The worth of the submission obviously hinges on where the burden of proof that the defence exception provided in ss. 150.1(2)(

a) and(

b) rests. I think it is clear that it does not rest upon the Crown and therefore the submission must fall. I say this for the followingreasons. Unlike the age of the complainant, the age of the accused is neither an affirmative nor essential element of the offence describedin s. 151. In it the prohibition against sexual touching extends to “every person”. This is coupled to the fact that the consent exceptioncreated in s. 150.1(2)(

a) and (

b) is described as a “defence” only invocable in restricted age circumstances. Lastly, and lesserly, the age ofthe accused at the time of the sexual interference with another person who is less than 14, is a matter of evidence which is found, if notexclusively, at least conveniently, within the knowledge of the accused. [31] The onus is on the Crown to prove the age of an accused beyond a reasonable doubt (R. v. P.A.K., (NLSC), [1992] N.J. No. 362, 103 Nfld. & P.E.I.R. 343; R. v. D.S., (SK KB), [1996] S.J. No. 803), however, the accusedbears the evidential burden. Klebuc J., in R. v.

D.S., adopted the argument of Green J. from P.A.K.: The Crown bears the legal burden of proving, beyond a reasonable doubt, that this court has jurisdiction to try the accused; hence, theCrown bears the legal burden of proving that at the time of the alleged offences, the accused was 18 years of age or older.

The defence bears an evidential burden of proof to raise, by evidence, an issue regarding the age of the accused at the time of the offencewhich would affect the jurisdiction of the court and which, if true, would entitle this court to conclude that it does not have jurisdiction totry the accused; in the absence of the raising of any issue as to jurisdiction or in the absence of satisfying this evidential burden of proof,the Crown is not required to lead any positive evidence to establish age of the accused at the time of the commission of the offence andhence the jurisdiction of this court. [32] The accused did not testify nor does he have to.

However in my view to avail himself of the affirmative defence in s.150.1(6)he would have to establish an evidentiary basis through the Crown evidence or defence evidence in order to rely upon it. There is no such

evidence before me. In addition the Crown relies on s. s.794(1) and (2) which further suggests that the onus is on the defence to prove the exception et cetera . [ 33 ] To the contrary all available evidence points to the fact that he was ten years older than the complainant at all material times; that she thought he was older, that people were disapproving of her involvement with the accused and that the accused’s girl friend with whom he was living at the time also knew and disapproved of this continuing involvement.

At all material times he has been charged and dealt with an adult and has submitted to the jurisdiction of the adult court. There is no evidence before me capable of establishing that the accused took any steps to establish the age of the complainant before embarking on this illegal and reckless behavior. Conclusion [ 34 ] Both at common law and statutorily, the accused bears the evidentiary burden to put any relevant exceptions into play.

Therefore, silence on the part of the accused during the course of the trial does not permit the accused to rely upon the exception provided in s. 150.1(2). [ 35 ] In regard to the first count, I am satisfied that on the evidence before me the accused was at all material times ten years older than the complainant and that the defence of consent does not apply because there is no evidence before me that he took any steps to satisfy himself that she was of consenting age and because of her age at the time of the assault, she was not capable of consenting. [ 36 ] Specifically in regard to the count of touching contrary to s. 151 , I am forced to conclude that there was no consent given whatsoever by the complainant.

In my opinion, he simply forced himself upon her at the time without giving her an opportunity to respond orally to his advances. Secondly she is not legally capable of giving her consent since she was between the ages of 12 and 14 and the accused has not called any evidence t hat would bring the exception into play. In view of that finding of fact, I conclude that the crown has established the second count on the Indictment and I would find him guilty on that count. _________________________ B.M. Klause, J