Her Majesty the Queen - v. -, 2016 SKPC 158

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2016 SKPC 158 Date: October 19, 2016 Information: 45442971 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - P.A.H. Appearing: S. Fillo For the Crown C.

Bohacik For the Defence Note: 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 . _____________________________________________________________________________ JUDGMENT M.M. BANIAK , J _____________________________________________________________________________ [ 1 ] P.A.H. stands charged as follows:

1) that on or about the 26 th day of September, 2015 at or near Saskatoon, Saskatchewan did commit a sexual assault on M.B., contrary to s. 271 of the Criminal Code ; 2) that on or about the 26 th day of September, 2015 at or near Saskatoon, Saskatchewan did being subject to a youth sentence imposed by a Youth Justice Court judge of Saskatchewan on July 7, 2015, did wilfully fail to comply with a condition thereof, to wit: keep the peace and be of good behaviour, contrary to s. 137 of The Youth Criminal Justice Act ; and 3) that on or about the 26 th day of September, 2015 at or near Saskatoon, Saskatchewan did being subject to a youth sentence imposed by a Youth Justice Court judge of Saskatchewan on July 7, 2015, did wilfully fail to comply with a condition thereof, to wit: not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores, contrary to s. 137 of The Youth Criminal Justice Act . [ 2 ] The accused is presently 18 years of age, but was a young person at the time of the alleged offence; being September 26, 2015. [ 3 ] The Crown’s only witness was the complainant, M.B., who is presently 16 years of age, but was 15 at the time of the alleged assault. [ 4 ] She provided an audio-video statement to the Saskatoon Police Service on October 8, 2015.

The statement was played in Court and I had a copy of the transcript as well. The complainant adopted the contents of the video: she testified that she recalled giving the statement and that she was truthful when she gave the statement. [ 5 ] The videotaped statement together with her viva voce evidence given at trial comprise the whole of the evidence-in-chief. [ 6 ] In September, 2015 the complainant was a resident of Bethany House, which is a girls’ group home in the Sutherland district of Saskatoon.

There she befriended D.R. who was also a resident of the home. [ 7 ] The two, together with D.R.’s then boyfriend P.H., made tentative plans to go to a party on the outskirts of Saskatoon. The complainant wanted to go to the party, even if it meant breaking curfew, “because the guy I like was there.” [1] [ 8 ] However, according to the complainant, her two companions had a “change of heart” and decided to go to the accused’s house instead. One of the reasons for the change of plan may have been the lack of transportation to the party site. [ 9 ] The complainant testified that she met the accused through D.R.

She testified that she viewed him as being abusive and mean. She did not like him, but only hung out with him because he was D.R.’s boyfriend. [ 10 ] Around 10:30 the three of them caught a bus and went to the accused’s house. The accused’s siblings and parents were at home. The three sat in the accused’s bedroom. “We just had to sit there and be quiet until his parents went to sleep . . . then he stole his parents’ alcohol from their room and then we drank that.” [2] [ 11 ] The two played a trivia game and when any of them provided the wrong answer they would have to take a drink or a “swig” from the bottle.

She believed that she took about 10 swigs from the bottle. She described herself as being quite drunk - on a scale of 1 - 10 maybe an 8.

[ 12 ] After the liquor was consumed: . . . we went out for a smoke and then we came inside and we were playing truth or dare and then that’s when he started saying oh let’s have a threesome, let’s have a threesome because he was daring me to do that and I didn’t want to cause I don’t like that kind of stuff and it’s not really my thing . . . yeah, it was really sexual he was trying to get me to make out with D.R. and he was trying to get me to make out with him and he was trying to get us to take our clothes off and I wouldn’t do that . . . he was like being really sexual and gross, grabbing my butt and touching me and I was just trying to get away from him the whole time.

And then finally and then finally physically like put, put himself on me and like took my virginity. [3] [ 13 ] She testified that they (accused and D.R.) Took her phone away and that they both held her down: . . . like they took away my phone because they thought I was going to drunk dial somebody and then he took off my pants and then he threw me on the bed and yeah.

I don’t know how to describe it but it really hurt and I, he was covering me mouth the whole time because he didn’t want me to scream because I was like in pain and I was crying . . . like he was like covering my mouth and he would like I wasn’t, I couldn’t go anywhere cause D.R. was, was holding down one of my arms and he was holding my other one and I couldn’t go anywhere and I couldn’t get out and I was kicking and screaming well trying to scream I guess and I just couldn’t get him off and it took like a lot to get him off me and D.R. was like okay, okay I think that’s enough now and she helped me get him off, get him off me and then they had sex . . . [4] [ 14 ] She testified that the accused and D.R. were aware that she was a virgin.

The accused told her that it was better for her to lose her virginity to “somebody you know than somebody you don’t”. He was indifferent to her pleas to stop.

She tried to convince him it was not right because his girlfriend was D.R.: I was saying stop it you love D.R. because like the whole time I’m just like no you can’t do that because you love D.R. and then he’s saying that he doesn’t even like her and that they were never a thing, but I was just saying that like I was just repeating myself over and over like stop you love D.R. [5] [ 15 ] According to the complainant, the accused’s response was: . . . that it’s not going to hurt and that he is just going to stretch me out and I was telling him to stop and then he took his pants off and then like did that and he was being like really, really rough and it like he was grabbing, holding on my hand really hard and I was kind of scare that he was going to hit me but he didn’t. [6] [ 16 ] She testified that there was penile penetration, but did not believe that the accused ejaculated inside her. [ 17 ] The next morning they left the house around 9:00 o’clock and went to Confederation Mall.

Around 3:00 p.m. she received a message from the accused (Exhibit P-2) saying that he was sorry, and pleading with her not to tell anybody as he didn’t want to get into trouble. [ 18 ] She confided to a friend at the mall as to what happened and the next day to a couple of more friends. [ 19 ] During cross-examination, the complainant acknowledged that she was drunk - indicating that this was the first time that she got drunk.

She did, however, maintain that it was not her idea to go to the accused’s home and that it was the accused and D.R. who held her down and thus making it possible for the accused to have sex with her. [ 20 ] She testified that she was taken to hospital for a rape kit by one of the staff from Bethany Home. She indicated that she loves staying at Bethany and that she has not broken any house rules since that incident. [ 21 ] The accused testified. He indicated that he had met the complainant through D.R., who at the time was his girlfriend. On this

day, the three of them had talked about going to a party, but he was on curfew so he had to be home by 11:00 p.m. They all decided to go to his place. [ 22 ] His parents were not pleased that the girls were going to spend the night there, but did not ask them to leave. The three of them played Trivial Pursuit, and after his parents went to sleep he went to the garage and retrieved a mickey of vodka. Every time one of them got the wrong answer that person was required to take a swig out of the bottle. All of them drank some of the vodka. [ 23 ] They also played a game called truth or dare.

According to the accused, he dared the girls to kiss and they did. [ 24 ] At some point D.R. and the accused started having sex. It was D.R.’s idea to have a threesome and she asked the complainant to join them. At first the complainant said yes and then changed her mind and said no. [ 25 ] After the accused and D.R. finished having sex they went outside, had a cigarette, and came back and went to sleep. The accused and D.R. slept on the bed while the complainant slept on the floor. [ 26 ] The next morning they all went to Confederation Mall. Afterwards the girls went home and so did he.

Later that day he learned from D.R. that she and the complainant went to the hospital to get a rape kit done and that later they would go to see the police. [ 27 ] The accused was asked about the test message he sent to the complainant. [7] [ 28 ] On the first screen page, (September 26, 3:07 p.m.) the message read “Hey I’m sorry plz forgive me.” When asked what he was sorry for, he answered “I can’t remember exactly.” When asked what he meant by “forgive me”, he answered “for getting her drunk and for D.R. and me having sex.” [ 29 ] During cross-examination, the accused testified that it was the complainant’s own decision to come to his house with D.R., and that she was hoping to get drunk that night.

He obtained the alcohol and they all drank. He drank the most, but “no one was really drunk.” [ 30 ] He testified that he remembered everything that happened that night. According to him, it was D.R.’s idea to have a threesome and the complainant was initially receptive to the suggestion, even going so far as to taking her pants off and climbing into bed. When he got on top of the complainant she said “no” and he got off her. [ 31 ] He further testified that he never touched the complainant sexually; that he did not have an erection and that he was not even attracted to her.

He was not that sort of person; in his words “I never cheated on a girl in my life.” [ 32 ] He denied that the complainant was pleading with him to stop assaulting her, or that he and D.R. were holding her down, or that he tried to cover her mouth to keep her quiet. [ 33 ] With respect to the text messages, when asked what he meant by “Hey I’m sorry plz forgive me”, he responded “I meant that I was sorry they would get in trouble for breaking curfew and getting them drunk.” [ 34 ] When asked what he meant when he texted “I’m sorry I got so drunk plz don’t tell anyone I will get into a lot of shit”, he answered that he was worried because he was on conditions not to drink.

[ 35 ] When asked how the complainant seemed or behaved that night, he responded that “M . was just more happy than normal, but not drunk. More giggly.” Position of the Parties [ 36 ] Defence submits that this is a difficult case for a number of reasons: Firstly, it’s a she said he said scenario; secondly, it is a situation where young people were drinking; thirdly, all three were breaching conditions. [ 37 ] Further, the complainant testified that she was drunk and that prior to the alleged assault there was kissing between all three parties and talk of sex.

Finally, and most importantly, the accused stopped when the complainant said no. On the whole, the accused was truthful and testified in a straightforward manner. Credibility is an issue. [ 38 ] The Crown for its part, argued that on all relevant aspects the complainant was clear and unshaken as to what happened. The complainant admitted that her testimony with respect to the time of certain events may have been off, but that in no way affected her narrative as to what happened that night. She used descriptive terms such as “I’m just going to stretch it out” and “better with someone who is like a brother”.

These would not be terms that she would have made up herself. [ 39 ] Conversely, the accused did not admit to being a party to anything that happened. He testified that everything was the girls’ idea. His demeanour on the stand was evasive. The explanation of the text messages was unconvincing. In short, he was not a credible witness. Analysis [ 40 ]

Section 265 of the Criminal Code reads as follows: Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. [ 41 ] The Supreme Court addressed the meaning of sexual in terms of the Criminal Code for sexual assault in the Chase [8] case. It concluded that sexual assault is an assault which is committed in circumstances of a sexual nature, such that the sexual identity of the victim is violated. [ 42 ] McIntyre J. In Chase stated that the test to be applied is an objective one:

Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.[9] [43] Moreover, circumstances to look at when doing the test include: part of the body touched; the nature of the contact; the situation in which it occurred; the words and gestures accompanying the act, and all other circumstances surround the conduct including threats. [44] Consent to the sexual activity would clearly negate the notion that a sexual assault occurred. [45] The Supreme Court in R v Ewanchuk (SCC), [1999] 1 SCR 330 (at para 30) made it clear that whether thecomplainant consented is to be tested subjectively.

It is what was in her mind that is critical and not what was in the accused’s mind: The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including wordsor actions. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent withher claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. [46] The Supreme Court in Ewanchuk also held that the trier of fact may only come to one of two conclusions: the complainanteither consented or not.

There is no third option of ‘implied consent’. [47] In order to assist the accused, and allow him to argue that he had an honest but mistaken belief that the complainant wasconsenting to sexual activity, the evidence would have to suggest that the complainant had clearly communicated by words or conducther agreement to engage in sexual activity with the accused. [48] Whether there was consent to the sexual activity depends on whose version of the evidence is accepted. [49] Where there is conflict, or contradictory evidence, particularly between the accused, who gives exculpatoryevidence, and one or more witnesses who contradict and call into question the accused’s credibility, the direction given by the Supreme Court in R v WD[10] is instructive.

The test is as follows: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [50] A denial does not create a reasonable doubt anymore than a complaint establishes proof of an offence having been committed.

The totality of the evidence has to be considered. [51] In this case, the accused testified that it was his girlfriend’s idea to have a threesome and that the complainant voluntarilyagreed to join in. The complainant denies consenting to sexual activity and testified that both the accused and his girlfriend were holdingher down when the accused was on top of her.

[ 52 ] I prefer the evidence of the complainant. She had no reason to fabricate the assault. She was friends with the accused’s girlfriend. She was sexually inexperienced. She testified that she did not like or feel attracted to the accused - in fact she testified that the main reason she wanted to go to the bush party was because a person whom she liked and was attracted to was going to be there. She did not, in anyway, indicate to the accused that she wanted to have sex with him.

I understand that not every sexual act is preceded by direct or unequivocal questions and continues only after explicit and clear answers are obtained. On occasion, very little verbal communication takes place, but the parties’ actions and body language leave little doubt that there is mutual consent to sexual activity. This was not the case here.

She clearly communicated to the accused that she did not want sex and that it was not appropriate as he was in love with his girlfriend. [ 53 ] Her testimony was clear, focused and sufficiently detailed to satisfy me that it was the accused who was forcing himself on her.

The words she said the accused used, such as “I’ll stretch you out a little”; “it’s better to do it with someone you know”; “I’m like a brother to you”, would more likely be spoken by someone who wanted to convince a reluctant party to have sex. [ 54 ] I believe it may also be useful to comment on the accused’s conduct or behaviour the following day. [ 55 ] He testified that the three of them went to Confederation mall in the morning and that around 11 o’clock he went home. Later that afternoon - around 3:00 p.m. - he learned that the girls were going to get a rape kit done.

He proceeds to text the complainant that he’s sorry. His explanation was that he felt sorry for the complainant because she was not feeling well as a result of getting drunk. Yet, earlier he testified that none of them were drunk and that the complainant “seemed fine”. [ 56 ] His show of concern lacks sincerity. He showed a callous disregard and sensitivity towards the complainant when he let her sit on the floor in the corner of the bedroom while he was having sex with D.R. Afterwards no effort was made for her sleeping arrangement. He and D.R. slept on the bed while the complainant remained on the floor.

This does not suggest that he is the sort of person who would feel sorry for the complainant not feeling well the next day because of alcohol consumption the previous night. [ 57 ] He also testified that he had never cheated on a girl in his life, but was clearly prepared to do so on this occasion. This, apparently, because it was D.R.’s idea. Yet, earlier in his testimony he described D.R. as the sort of person who wanted to do things to please people.

That a 14 year old follower was able to influence someone who was almost 18 years old to do something improper defies credulity. [ 58 ] His explanation for texting “I’m sorry I got too drunk plz don’t tell anyone I will get into a lot of shit” was that he was concerned about getting into trouble over breaching a condition in is Probation Order (about consumption of alcohol). [ 59 ] This, again, does not stand up to scrutiny. He earlier testified that he was not drunk the previous night and that he remembered everything.

Moreover, he was not discovered breaching a condition of his Probation Order the previous night - why would he be so concerned about it the following day? [ 60 ] Applying the test in R v WD , I do not believe the accused; his testimony does not leave me in reasonable doubt, and based on the evidence which I do accept I am convinced beyond a reasonable doubt of his guilt. [ 61 ] Since I find him guilty of count #1 of the Information, it also follows that he is guilty of count #2 and #3. ________________________ M.M. Baniak, J

[1] Transcript, line 100 [2] Transcript, lines 218 - 222 [3] Transcript, lines 343 - 367 [4] Transcript, lines 392 - 410 [5] Transcript, lines 505 - 509 [6] Transcript, lines 454 - 458 [7] Page 2 [8] R v Chase (SCC), [1987] 2 SCR 293 [9] Para 11 [10] (SCC), [1991] 1 SCR 742