Her Majesty the Queen - v. -, 2011 SKPC 150

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 150 Date: September 15, 2011 Information: Y 329610 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.B.

Appearing: David Flett For the Crown Michael Weger For the Accused 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 . DECISION J. BENISON , J PUBLICATION BAN

[ 1 ] Prior to the start of the trial, the Court made an order pursuant to

section 486.4 of the Criminal Code banning publication of any information that might identify the complainant and other Crown witnesses under the age of 18. CHARGE [ 2 ] The accused is charged, as a young person, with committing sexual assaults on K.N. on November 4, 2010, contrary to

section 271 of the Criminal Code . DETAILS OF ALLEGATIONS [ 3 ] The main allegations of the complainant are that the accused, without her consent, made her perform a “hand job”, massaging his penis until he ejaculated and that he “fingered her” by which she meant he put his fingers in her vagina. I am satisfied that these actions did occur. The only issue is whether or not the complainant consented to the acts or, in the case of the “hand job”, performed it voluntarily. The complainant made a further allegation that the accused bit her neck and breasts.

I have to determine whether or not the complainant consented to these actions. Whether the actions involved biting or kissing her neck and breasts is not relevant. Either action would constitute a sexual assault if consent was absent. COMPLAINANT ’S TESTIMONY [ 4 ] The complainant, K.N., testified about the events on November 4, 2010. She went to the accused’s home by invitation; she knew that no one else would be there. She and the accused were good friends involved in what she agreed was “bordering on a romantic relationship”.

She testified that a few days previously she had agreed to go to the accused’s house for sexual activity, but had changed her mind. She said that she had rejected the accused, because all he wanted was her body. She had had a boyfriend since October 22, 2010. The complainant stated that she had asked the accused to make sure that they would not do anything sexual and he had agreed. [ 5 ] When she first arrived the accused took her on a tour of the house.

When they were in the accused’s brother’s bedroom, the complainant testified, the accused began touching her and “trying to get some action”; he pushed her on the bed and tried to get on top of her, and she pushed him off. The complainant qualified her description by saying that “he didn’t necessarily touch me, but I could see him trying and I stopped him”. She thought of leaving the house at this time, but thought she could trust the accused. [ 6 ] After this they went back to the accused’s bedroom in the basement and sat on his bed.

He tried to get on top of her again and she told him “no” and pushed him away; he stopped after a few minutes. [ 7 ] They then went to watch television in another room and sat on the couch. The accused grabbed her hand and placed it on his groin area; she pulled it away and said “no”. He stopped at first and then tried it again. He kept asking her to please do it and she kept saying no. The complainant finally said that she would do it. She explained that she agreed to do this because she didn’t think she would be able to leave if she refused; she thought she would be physically hurt.

She asked him if she would be able to leave if she did it and he told her she could. She kept her hand on his penis until he ejaculated and then she went to the bathroom to wash her hands. [ 8 ] At this point the complainant made a move to leave, but, she testified, the accused pushed her on the bed and got on top of her. He took down her pants and put his fingers inside her vagina. She was scared and nervous and she told the accused “please stop, I don’t want this”. She did not know what she could do because she was in a lot of pain and she testified: “I just took it”. This continued for 10 to 15 minutes.

After the incident, she said, she was really hurt; she put her pants back on and told the accused she had to go. He walked her up to the door and she left. She went to the Dance Zone where she met her friend S.C. She told S.C. that the accused had attacked her and bitten her. [ 9 ] The complainant then testified that she had forgotten to relate an incident that occurred while they were on the couch. The accused pulled down her shirt and bra and started biting her breasts very hard; he also bit her neck. She was telling him “no” and pushing him off and kicking him off, “but it didn’t work”.

ACCUSED’S TESTIMONY [10] The accused admitted the allegations of the complainant but testified that she consented to everything that was done. Hedescribed how he and the complainant had previously talked about what they would do if they were ever alone together - sexual things. When the complainant came to the house, he testified she knew that the accused’s parents would not be there; he had texted her to comeonce his parents were gone. According to the accused, the only time the complainant showed any reluctance was when he asked her fora “hand job”.

The complainant said that she shouldn’t do this because she had a boyfriend, but he talked her into it. The accusedtestified that the complainant never gave the impression that she did not want to do any of these things. He said that he did not restrainthe complainant or use force. He testified that if the complainant had resisted he would have stopped. ANALYSIS [11] The complainant says that she did not consent to the sexual acts described by her. The accused, on the other hand, said thatall of the acts were consensual. [12] Clearly, credibility is the issue.

This is a case where I must apply the principles enunciated in R. v. W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (SCC). [13] Accordingly, I will firstly assess the credibility of the accused. As I watched the accused testify, I observed a confident youngman who gave his testimony in a prompt, straightforward manner. At times I got the impression that his answers were well rehearsed. Iwas not impressed by his testimony about having a sprained wrist, which he used to suggest that he could not have been holding thecomplainant down. I viewed this as a feeble attempt to discredit the complainant’s testimony.

The accused, in my opinion, exhibited asomewhat arrogant attitude when asked about the complainant’s text message three days after the alleged offence in which she stated:“You made me do that R.B...When I told you a hundred times that I didn’t want to...I told you no”. The accused explained this bysaying “this was her beginning to make up her story”. [14] I cannot adequately assess the accused’s credibility without considering the testimony of the complainant.

The complainantgave an account of the incidents in a clear manner although she admitted some parts of the narrative in examination-in-chief, she readilyagreed in cross-examination that the incidents occurred as suggested by defence counsel. She was firm in her testimony that she did notconsent to the accused’s actions. I noted that the complainant clearly considered the questions before answering, in contrast with theaccused, who answered promptly. The complainant went into great detail when describing what occurred. Her recollection of theincidents was clearly disturbing for her.

The accused on the other hand, gave very little in the way of details; it struck me as a

summarythat he had memorized. Considering the accused’s testimony that he and the complainant had been together for two and a half to threehours, his testimony is substantially lacking in detail. [15] Taking all these factors into consideration, it is my conclusion that I do not believe the testimony of the accused. Havingreached this conclusion, I must now consider whether the Crown has proved guilt beyond a reasonable doubt. [16] There are a number of factors in the Crown evidence that caused me concern. • The complainant had agreed to go to the accused’s house knowing that they would be alone.

They had previouslydiscussed participating in sexual activity. • The complainant had an opportunity to leave the house on several occasions. There is no credible evidence that theaccused used or threatened to use force to prevent her from leaving.

• I have a particular problem with the complainant’s testimony that although she and the accused had discussed doing sexual things, she “rejected” him before November 4 th because “all he wanted was my body”. I found this to be a strange way to characterize their relationship. Her agreement to go to the house, knowing they would be alone and having previously discussed participating in sexual activity, could hardly be viewed as a rejection. • Another major cause for concern is raised by the complainant’s interaction with the accused after the alleged sexual assaults.

At 12:02 a.m. the accused texted “I love you” and the complainant responded “I love you too”. A similar exchange occurred on November 6 at 1:19 a.m. The conversation in the text messages from November 4 to 7 is courteous, friendly and mostly trivial. However, the complainant’s mood changes dramatically on November 7 th when she discovers that the accused has told a former girlfriend about his activities with the complainant, and that the complainant’s boyfriend might find out what she had done. The complainant was clearly very angry; she texts “You made me do it...I did not want any of that to happen”.

This is the first indication in the four days of texting that the complainant was suggesting that she did not consent to the sexual activities. Her concern about her boyfriend finding out is clearly uppermost in her mind. In my opinion, this raised a definite concern that the complainant may have had a motive to misrepresent what occurred. • One other odd response was given by the complainant when she was asked about her and the accused kissing each other as she left the house. She stated that the kiss did not mean anything to her; she just did it so she could get out of there.

Surely, she could have got out in any event since she was at the door. CONCLUSION [ 17 ] As previously stated, I do not believe the accused’s testimony. Nevertheless, after considering the accused’s evidence in the context of the evidence as a whole, and in particular the frailties of the complainant’s testimony, I am not satisfied beyond a reasonable doubt as to the guilt of the accused. I therefore find the accused not guilty of the charge under

section 271 of the Criminal Code . ______________________________ J. Benison, J