2014 SKPC 71, 2014 SKPC 71

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 071 Date: April 2, 2014 Information: 24542800 Location: Swift Current _____________________________________________________________________________ Bet`ween: Her Majesty the Queen - and - Rodney Lee Richie Appearing: Mr. Steven Kritzer For the Crown Mr. Rodney Richie For the Accused An Order pursuant to s. 486.4(1) (a)(

i) of the Criminal Code of Canada has been made directing that any information that could disclose the identification of the complainant or a witness shall not be published in any document or broadcast in anyway. JUDGMENT L. MATSALLA , J [ 1 ] Mr. Richie faces a four count Information that alleges that he did, over an 11 month period, on repeated occasions:

a) for a sexual purpose, expose his genital organs to S.E., a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code ;

b) did without lawful authority, being reckless as to whether S.E. was harassed, did engage in conduct that caused S.E. reasonably in all the circumstances to fear for her safety, contrary to s. 264(1) of the Code ;

c) without lawful authority, being reckless as to whether W.C. was harassed, did engage in conduct that caused W.C. reasonably in all the circumstances to fear for the safety of S.E. contrary to s. 264(1) of the Criminal Code ; and

d) did without lawful authority, be reckless as to whether E.C. was harassed, did engage in conduct that caused E.C. reasonably in all the circumstances to fear for the safety of S.E., contrary to s. 264(1) of the Criminal Code . He has been in custody on these and other charges for some time. However, he has decided not to seek his release and he has chosen to represent himself in this proceeding.

Despite the period over which the allegations extend, the Crown admitted at trial that the incident alleged in count #1 occurred on one occasion, that the incident alleged in count #2 occurred on numerous occasions, that the incident alleged in count #3 occurred on one occasion and finally that the incident alleged in count #4 occurred on three occasions during her testimony. [ 2 ] Mr. Rod Simaluk was appointed pursuant to s. 486.3(1) of the Code solely for the purpose of conducting the cross- examination of the complainant.

The Crown sought and was granted Orders under ss. 486.2(1) and 486.1(1) of the Code permitting a witness under 18 years of age to testify outside the courtroom and enabling a support person to be present and to remain close to the same witness. The Evidence The Crown [ 3 ] On May 5, 2013, a police officer attended at the small village of White Bear, Saskatchewan where he took numerous photographs of the exterior and interior of a small two storey residence that had been occupied by Mr. Richie.

An officer testified that on August 10, 2013, he seized a handwritten note that he had obtained from another officer who, while he was arresting the accused on May 4, was given the letter by a woman who lived in a house a short distance from the accused’s residence. [ 4 ] S.E. is an 11 year old girl who is in Grade 6. She testified that she knows the accused because he lives two blocks from the residence in which she lives with her mother and stepfather.

She said that it would take her about two minutes to walk from residence to residence. [ 5 ] She met him at the end of August of 2012 at a community function that she had attended with her father. On the invitation of the accused, she went to his house to see his garden. Subsequently, near the end of September, she was slowly riding her bike on the street past the front of the accused’s house looking for her cat when she said that she saw the accused facing her in the front window with his pants down and “scrubbing” his genitals. She said he was moving his hand back and forth on his penis.

After watching him for about 30 seconds, she said that she rode her bike back to the house to tell her mother what she had seen. She told the Court that she saw the same man thereafter outside his house near his shed and near the door of his greenhouse with his pants down such that she could see his skin, although she could not tell if he was wearing underwear. She went on to say that she did not feel safe when she saw these things. She also said that, on some occasions, she saw him in the window of his house standing on a stool with his pants down.

She said that on occasion she would see his silhouette in the window and he was not wearing his pants. She told the Court that on one occasion, as she walked by his house he told her she was beautiful and he asked her to come over to him. She said that on another occasion she had seen his “whole body” while she was riding a recreational vehicle in the village. It is not clear precisely what she saw or whether the accused was inside or outside his residence at the time. On the last occasion, she said that she saw him with his pants down while he was in the door of his greenhouse.

Even though the family had an outdoor pool, she did not use it regularly because she didn’t “feel good going to the pool because he was out there doing that stuff”. [ 6 ] In cross-examination she estimated that her house was two blocks away from Mr. Richie’s residence. She told the Court that

there were bushes or trees in front of his yard (see exhibits D1 and D4 - photographs #1 and #2) that were about five feet tall (that is, taller than she is) however she said that she could see him through the shrubs. On other occasions, she watched him from her house. She admitted that her parents did not like the accused and that she had heard them refer to him as “creepy”. She said that she did not usually walk in front of his house although she did so with a friend and she rode her recreational vehicle near his home. [ 7 ] The complainant W.C. testified.

She said that she lives in White Bear with her husband, E.C., and her daughter, S.E., in a trailer residence that is located 220 yards from the accused’s house. She knows that to be the case because she used a range finder to determined the distance. She told the Court that she had been living in the village since November 2010 and that she has known the accused since that time. She went on to say that during the school year in 2012 in May, June or September, her daughter S.E. came into the house quite upset and frightened of the accused.

Since that day until his arrest in early May 2013, she frequently came into the house upset however no complaints were made to the police until 2013. Specifically, on May 2 or the morning of May 3, 2013, she was getting ready to take the bus to school when she entered the house in an upset state. W.C. testified that she then promptly went to the south side of the residence where the bathroom was located and while she stood on the vanity counter she looked over to the accused’s residence. She saw the accused in his back yard with his black sweat pants down his legs and he was masturbating.

Her view was unobstructed and she could see his unclothed body. She was disgusted. [ 8 ] E.C. told the Court that in late April of 2013, S.E. came into the house and complained to him about the accused. E.C., himself, then looked through the bedroom window (which he estimated to be one block or 600 feet away) and saw the accused in his yard with his sweat pants down to his knees and he was masturbating. He said that in April he observed three separate incidents on consecutive days involving the accused - two from a bedroom window and one from the corner of his nearby shop.

With respect to the incidents, he claimed that the accused was standing in the door of his greenhouse, that he had his hand on his penis and he was moving it back and forth for about ten seconds as he was watching S.E. in her yard. The conduct made him angry, disturbed and concerned. [ 9 ] Ms. Kerr testified that she lives on a farm with her husband, Edmund, and their two children. Prior to August 17, 2013, the accused had permission to live in his camper van on their property which is located in the Kyle district, Saskatchewan. On August 17, after Mr.

Richie left the yard, she was cleaning up some garbage from two buildings near the location where Mr. Richie had kept his van when she found a crumpled piece of paper behind an old couch. She did not think much of the paper, but the next day she read it and on August 19 a friend took the paper to the police. Her husband testified that he knows the accused as a friend and that they worked in a community market garden together. Mr. Richie had lived on their farm site for about four months. Between May 15 and November 2012, he knew Mr. Richie to spend most of his time at the market garden. He is familiar with Mr.

Richie’s residence and, in cross- examination, he told the Court that from Mr. Richie’s greenhouse he would not be able see into the trailer residence belonging to E.C. and W.C. because there is a pickup truck parked in the street between the house and the trailer (see exhibit D4 - photograph #4). He said that he did not believe that a person could see another person masturbating over that distance. [ 10 ] At the time of Mr. Richie’s arrest, the police observed numerous pornographic magazines in his residence and a draft of a pornographic novel that the accused appeared to be writing.

There was no evidence of child pornography in the house. [ 11 ] A senior member of the RCMP testified. He said that after the first day of trial in this case he attended at White Bear where he viewed the residence of E.C. and W.C. He said that in addition to the trailer on the property there was a shed that was 50 metres east of the residence. He attended at the en suite adjacent to a bedroom in the south end of the trailer and, standing on a stool, he looked out of the window to presumably simulate the position that W.C. and E.C. were in when each observed the accused.

I understand his evidence to be that he looked at the accused’s residence generally and he could see a large greenhouse on the left, a small greenhouse nearby to the right and a pickup truck facing west and parked in front of the larger greenhouse. He did not take a photograph (which may have been helpful) but he drew a diagram (see exhibit P3) setting out the scene.

He said the truck had wooden slats in the box behind the cab that one could look through such that he could clearly see the greenhouse and the upper half of the door of the greenhouse without obstruction. [ 12 ] The written note referred to above (see exhibit P2) described an incident “near the end of April or first of May” in which the writer awoke at 7:30 a.m., and masturbated while watching a pornographic VHS tape when he noticed S.E. standing three feet in front of his window looking into the living room. Both “took flight” and S.E. was seen standing on a street corner looking at the house.

Thereafter, the note describes S.E. as riding her bike past his residence and as hiding in his bushes “by the south corner of my lot”. He commented on how he enjoyed walking around naked in his house in the evening. The Defence [ 13 ] Mr. Richie testified. He said that he first met S.E. in 2010 and that he saw her again in the spring of 2012. On June 5 or 7, he

and a Mr. Jack Kerr went on a fishing trip. One week later, he described an incident that was consistent with the incident described in the written note that was filed by the Crown. He woke at 7:30 a.m. in an aroused sexual state and while watching a pornographic VHS tape, he sexually relieved himself and in doing so he saw S.E. out of the corner of his eye standing four feet away from the window. He said that he looked at her for a few seconds and then he went to his bedroom to put on a robe and by the time he returned, she was gone. He said that he looked out of his west window and saw her under a street light.

He acknowledged that the note was written by him after the incident in order to refresh his memory. [ 14 ] He told the Court that during gardening season he left the house at about 9:00 a.m. to go to the market garden and he did not return until after dark. In October of 2012, he started to build a platform for his larger greenhouse however, he is an American citizen and so he spent the winter in the United States returning to White Bear on March 10, 2013. He likes to garden so he started some bedding plants. After completing the greenhouse on April 25, he moved the plants into the structure.

The building was very hot inside and it did not have ventilation so he usually put on his white bathing suit to tend to the plants in the structure. He claimed that exposure to the sun helped his psoriasis and that he often mowed the grass in his yard while wearing the bathing suit. He frankly admitted that he often walked around inside his house naked until 9:00 a.m. however, he denied exposing himself in his yard. He testified that he did not know that he was being watched. Argument [ 15 ] The Crown argues that S.E.’s testimony should be accepted. The accused faced her when he exposed his penis to her.

Furthermore, he repeatedly performed sex acts in his yard either knowing that the complainants were watching him or he was reckless as to whether they observed him or not thereby committing the offence of harassment. [ 16 ] Mr. Richie argues that his house has bushes along the property line and S.E. could not have seen him in his window or, even if she did see him, it was because she came to the window and looked inside without him knowing and at a time when he had expected privacy. He did not intentionally expose himself to her.

In respect of the remaining counts he says that he was gone most of the day during the spring, summer and fall and when he was in his yard, he took his pants down only when he was wearing a bathing suit underneath his clothing. He denied masturbating in his yard. The distance between the houses was significant. Since Mr. Kerr, a Crown witness, who is familiar with the accused’s residence, could not adequately see into the trailer from the accused’s residence then it is less likely that the other Crown witnesses could have observed him in his yard.

Even so, in the case of the alleged incidents in the doorway of the greenhouse, only the top half of the door was visible because the truck was partially obstructing the view. Analysis s. 173(2) [ 17 ] Section 173(1) is an offence of specific intent in that the person must be shown to have committed the prohibited act “wilfully” or “with intent to insult or offend any person”.

Subsection 2, however, requires proof of general intent which can be established if the Court draws an inference that by committing the act the person intended the natural consequences of his action. [ 18 ] The Crown’s case is based upon the evidence of S.E. Although I am mindful that she is a young child, her evidence is not, for that reason alone, unreliable. Regard must be had to the fact that children perceive the world differently and certain observations that may be important to an adult may not be as important to a child.

The standard of a “reasonable adult” ought not to be applied to the evidence of a child. The evidence of all witnesses, however, must be scrutinized carefully taking into account the mental development and understanding of the witness and her ability to communicate. [1] [ 19 ] S.E. struck me as a very confident young witness. There is a significant inconsistency in the evidence adduced by the Crown as to when the act complained of was committed.

It was her evidence that the incident occurred on a day in late September and likely after school while her mother’s recollection was that the incident occurred in spring or in September but, in any event, during the school year. The note is part of the Crown’s case and refers to the incident as occurring at the end of April or early May. She described Mr. Richie’s conduct in some detail and while she said that she observed him for about 30 seconds, it is more likely that she did so for a much shorter period of time.

Unfortunately I do not have the benefit of adequate photos of the front of the house from the street but I do accept that bushes could have interfered with the view of anyone passing by the house on the street. Likewise, it would be difficult for anyone in the residence to observe anyone passing outside the front of the house. She said that she observed the accused as she rode her bike down the street but it would seem more likely that S.E. was much closer to the front of the house - perhaps even in his yard. In any event, I accept

that she did observe the accused performing the act described in his residence. [20] The Crown’s evidence, by way of the note, provided Mr. Richie’s version of the incident which is consistent with defenceevidence that the occurrence was a chance encounter rather than a deliberate attempt on his part to expose himself to her. It seems thatthere is evidence that upon becoming aware of her presence, both he and she promptly left the scene. Given the bushes in the yard, I donot believe that Mr. Richie could have anticipated someone passing by his residence at the time that he exposed himself. Mr.

Richie’sversion of the incident could reasonably be true. By his own admission, his lifestyle is certainly not conventional. However that does notmean that in this case his conduct was criminal in nature. [21] After examining all of the evidence I cannot infer that he intended to expose himself to S.E. The Crown has not proven theelements of the offence beyond a reasonable doubt. s. 264(1) [22] At paragraph 3, Madame Justice Gunn in the case of R. v. Biden[2] referred to R. v.

Sillipp[3] in which the elements of the offencewere set out as follows: It must be established that: (1) the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (

d) of the Criminal Code; (2) the complainant was harassed; (3) the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as towhether the complainant was harassed; (4) it must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and (5) the complainant’s fear was, in all of the circumstances, reasonable. She went on to note the following: The words “harassment” and “safety” in

section 264 mean: Harassment may be defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known tothe unwelcome” or “to trouble or annoy continually or repeatedly”. Safety goes beyond physical safety and includes psychological safety. (See R. vs. Ryback (1996), (BC CA), 105C.C.C. (3d) 240 (B.C.C.A.). Further, “on the evidence, the accused must have known that his continual attentions were unwelcome and must have been reckless tothe effect they were having on the complainant” (see R. v.

Ryback, supra). [23] It has been held that a single incident can constitute harassment if the conduct was persistent and threatening[4]. [24] Evidence as to the nature of the relationship between the accused and the complainant as well as prior interaction between themis relevant to put the act complained of in context and to assist in the determination of the intent of the accused and whether the actscomplained of were reasonably held.

[ 25 ] The Court in Sillipp accepted the trial judge’s view that “reckless” means “indifference to the consequences of one’s actions”. [5] [ 26 ] As a result of examining the evidence, some observations are in order. Given the distance between the residences, it seems that it would be difficult to clearly and in some detail observe another person performing a specific sex act.

There is also evidence from two Crown witnesses that casts some doubt on what was observed in that a person in the doorway of the greenhouse could only be observed above the waist because there was an old truck parked between the residences. There is no indication that S.E. or her mother and stepfather had anything but a casual relationship with the accused and there is no evidence of animosity between them.

No complaint or expression of disapproval was made to him by anyone over an 11 month period despite stated concerns about S.E.’s safety. [ 27 ] In respect of S.E., she testified that he was often in his yard with his pants down although she could not determine whether or not he was wearing underwear. The only incident in which there is any evidence that the accused made eye contact with the complainant was the incident that occurred in his living room. She said that she felt unsafe yet she said that she rode a recreational vehicle near his residence and she continued to observe him in the window of his house.

I cannot conclude that what he did falls within any of the categories of prohibited conduct nor can I conclude that Mr. Richie knew or was indifferent as to whether she was troubled by his conduct. I accept that she may have found his actions to be unusual but I cannot conclude that there was a reasonable basis for her to fear for her safety. [ 28 ] With respect to W.C., she described one incident in which she said that Mr. Richie committed a sex act.

There is no evidence of any continuing course of conduct on the part of the accused in relation to W.C. that would have caused her to be troubled respecting the safety of S.E. nor was there evidence that his conduct toward W.C. was persistent or threatening. There is no evidence that Mr. Richie was ever aware that she was watching him. Regarding the incident described above, he could not have known that she was surreptitiously observing him from her bathroom and so I cannot conclude that he knew or was reckless that she was or may have been troubled by his actions.

While there is evidence that she was disgusted by his conduct and that she considered him “creepy”, there is insufficient evidence for me to conclude that a reasonable person would have been concerned for the safety of S.E. in the circumstances. I cannot conclude that the Crown has proven the offence beyond a reasonable doubt. [ 29 ] With respect to E.C., it appears that he observed the accused repeatedly performing a sex act while he was in the door of his greenhouse.

More than one Crown witness testified that a person in the door of the greenhouse could only be observed from the waist up due to the location of the truck. I doubt that E.C. was able to observe the accused as he said that he did. I accept that he, too, considered Mr. Richie to be “creepy”, it is clear that he was less concerned for the safety of his stepdaughter than he was with his own sensibilities. [ 30 ] Mr.

Richie’s evidence that he frequently wore a white bathing suit when out of doors (especially when attending in his greenhouse and cutting his lawn) and his evidence that he was not aware that he was being watched could reasonably be true. Conclusion [ 31 ] I am not satisfied that the Crown has proven the elements of any of the counts set out in the Information beyond a reasonable doubt. Therefore, I must acquit the accused on all charges. ___________________________ L.A. Matsalla, J

[1] R. v. W.R., (SCC), [1992] 2 S.C.R. 122. [2] [2000] S.J. No. 290 (Sask. Q.B.), at para. 3. [3] (1997), 1997 ABCA 346 , 120 C.C.C. (3d) 384 (Alta. C.A.). [4] R. v. Kohl (2009), O.N.C.A. 100 (Ont. C.A.), para. 29. [5] Supra at para. 19.