His Majesty the King - v. -, 2024 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2024 SKPC 6 Date: February 2, 2024 Information: Y389647 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - S.S. Appearing: Alyshea (Aly) Sparks For the Crown Doug Andrews, K.C.

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 . JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, S.S. faces two charges under the Youth Criminal Justice Act . He is charged that: 1. Between May 31, 2021 and June 4, 2021, he committed a sexual assault on E.D. contrary to

section 271 of the Code; and

2. Between May 31, 2021 and June 4, 2021, he attempted to choke E.D. with his hand with intent to enable himself to commit the indictable offence of sexual assault, contrary to

section 246 of the Code. [ 2 ] The Crown proceeded by indictment on both counts. The evidence was heard on November 1 and 2, 2023. Final arguments were heard on November 17, 2023. I reserved my decision. This is that decision. THE EVIDENCE [ 3 ] The Crown called just two witnesses. The first witness was very brief. The Crown made application pursuant to

section 715.1 of the Criminal Code , to introduce a video statement made by the complainant, E.D. The Court was advised that E.D. was 14 years of age at the time of the alleged assault, and when the statement was taken. Constable Maclean testified that in July of 2021, she was stationed at the White Butte Detachment of the RCMP. At that time, the detachment received a complaint about a sexual assault. Arrangements were made for the complainant to come into the White Butte Detachment on July 9, 2021. At that time Constable Maclean interviewed the complainant. The interview was audio and video recorded.

The officer testified that the complainant’s mother brought the complainant to the RCMP detachment. The mother remained in another room during the interview. Only the officer and the complainant participated in the statement. [ 4 ] E.D. testified that she is now 16 years old. She is now living in Yorkton. At the time of this incident, she was 14 years of age. At the time of the incident, she had been living in Balgonie, with her parents, and had been going to Greenall High School in Balgonie. [ 5 ] E.D. clearly recalled giving the statement to the officer. The statement was played in its entirety in court.

E.D. stated that the statement she gave was true and she adopted that statement. [ 6 ] E.D. stated that the incident occurred in early June of 2021. She had previously met the accused through mutual friends. She believed that they had met a number of months before June of 2021. She recalled snow being on the ground when they first met. Following the initial meeting, the pair had a number of communications through social media. In the days leading up to this incident, they agreed that they would get together.

Arrangements were made for the complainant and her friend, G., to go to the accused’s home in White City to swim in the swimming pool in the accused’s yard. However, on the date of the incident, G. declined to go to the accused’s home for swimming so the complainant decided to go alone. She texted the accused, who picked her up and drove her directly to his home. [ 7 ] The complainant testified she assumed the accused’s parents would be home. However, no one else was there. She believed she arrived at his home at about 4:30 p.m. They talked for a while and watched TV in the accused’s bedroom.

At around 5:00 p.m., they decided they would go to the pool. The accused left the room and changed elsewhere. She changed into her two-piece bathing suit. Moments later, the accused was back at the room, and took her to the pool area. He had towels. They were swimming and in the pool area for approximately 45 minutes. She believed she went back to the bedroom at around 5:45 p.m. Once again, the accused left the bedroom, and went elsewhere to change. She changed back into her street clothes. As she did this, the door was closed. She believed the lights were on and believed the TV was still on.

After being in the room for about five minutes, the accused returned. Both sat on the bed. She stated that at that moment, she did not feel uncomfortable or that she should leave. She was quite surprised when the accused stood up in front of her and pushed her back on to the bed. He then sat on top of her and began to choke her. He grabbed her neck and pushed on it. She stated that as he pushed her back, she told him that she did not want to do anything. She could not remember if he responded. He kept pushing her or holding her down. She tried to get up, but could not.

He then laid on top of her and had one hand on her neck. Her clothes were still on. He grabbed her wrists and put her hands up over her head and held them there for a moment. He then let go of her hands and started to take her shorts off. She said she was frozen. She told him at least twice that she did not want to have sex. During examination-in-chief, the complainant testified that her top and bra remained on during the incident and she even described the kind of bra she had worn. She testified that he was on top of her and had vaginal intercourse with her.

She could not say how long he was on top of her for intercourse and could not say if he ejaculated. [ 8 ] The complainant testified that when intercourse was completed, the accused immediately got up and left. She said she “unfroze” and was able to move again. She got dressed. She immediately texted a friend, and asked the friend to text her to give her an excuse to leave. Shortly thereafter, she did get a text from her friend H. and left the home. She began walking and H. picked her up. [ 9 ] Under cross-examination, E.D. denied that intercourse began with her on top.

She also denied the accused vaginally penetrated her from behind. She denied that she had asked about or got the condom out and in fact, said she could not recall if he even wore a condom. She adamantly denied that he ejaculated on her back and then returned to clean her off. Defence counsel cross-

examined at some length about how the complainant did not say “no”, did not protest, and did not immediately report the incident. He also questioned her about “being frozen” and stated, “It is in vogue now” for the complainant to say she was frozen. Defence counsel suggested to her that she later decided that she had been raped. She adamantly denied that, and stated: she “didn’t decide”. She was also confronted with a number of aspects about which the accused would ultimately testify. She adamantly denied that any of those actions took place.

Counsel also attempted to cross-examine her about her reputation, and suggested she decided to report a rape because she was concerned about her reputation. All of this was also adamantly denied. [ 10 ] The accused testified he is now 19 years of age. He was 17 years old at the time of this incident. He is 5’6 or 5 feet 7 inches tall. He went to Greenall High School in Balgonie. [ 11 ] He testified that he met the complainant at the residence of an unrelated third party approximately three to four months before the incident.

A number of friends had gathered there. [ 12 ] After this initial meeting, they often spoke on Snapchat. He stated they occasionally saw each other and met at school. He indicated that they had approximately seven conversations via text messaging. Three of those conversations were somewhat longer. They started to get closer to one another. [ 13 ] A week or two prior to the incident, he learned from the complainant that she was grounded. They spoke about hanging out. He offered swimming at his place. Two days prior to the incident, they made specific arrangements for swimming.

He stated there was no discussion of anyone else coming with her to swim. He picked her up at school. This was her idea. No one was at his home. Once at his home, they went to his room and spoke briefly. He said they were “breaking the ice” and “chilling”. [ 14 ] He asked her about going swimming. He said he thought she changed in his room. He changed upstairs. He got towels and they went to the pool area. He believed they were in the pool for approximately 30 to 45 minutes. They were swimming and playing volleyball. He then asked if she was ready to get out and she indicated she was.

There had been no physical contact in the pool. They left the pool and again changed. [ 15 ] He did not remember where she changed. He remembered that they were back in his room and “started getting into it”. He stated he was wearing joggers and a t-shirt. He thought she was wearing shorts. She was wearing the same clothes as earlier. He stated he would have been sitting on the bed and she was lying on the bed. He asked whether she wanted to come sit by him. She agreed and they began cuddling. He then moved to kiss her. At that time, she grabbed him and started kissing him.

She asked if he had a condom and he said yes. He told her to grab a condom that he had under his pillow on his bed. He did not indicate when or if he put the condom on. At first, she was on top of him as they had intercourse. Then they changed positions a number of times. He later asked if he “could finish on her” and she said yes. He then ejaculated on her back. He said he left her briefly and got tissues and cleaned her off. He then offered her a drink. He stated they spoke for about 5 or 10 minutes and then she decided she had to go.

He offered her a ride but she said she was fine and left. [ 16 ] He stated that he held her hand, but never held her wrists. He asked if she wanted to take her pants off. She said yes. He helped her take her pants off. He stated that she took off her shirt, and then he took her bra off. [ 17 ] He stated that he put the wrapper and the condom in the garbage. The TV was on throughout, but the lights could have been turned off. He indicated the total sexual encounter took 30 to 40 minutes.

He also spoke of a couple of near meetings that they had in the weeks following this incident. [ 18 ] Under cross-examination, he reiterated that they met months earlier and then communicated on Snapchat. They were not close friends. The conversations on Snapchat were very shallow. He could not recall if this incident occurred on a school day, or what day of the week it might have been on. He could not recall anything that he had done earlier on the date of the incident. After arrival at his home, they were in his room for about 15 minutes. They went swimming and then went back inside.

He changed upstairs, and then went downstairs to his bedroom. The lights were on at first. They had sexual intercourse on his bed. He was on top of her. He put his hand on top of her neck, closer to her jaw. He put some pressure on her neck. He used his left hand to hold her right hand. Their hands were about shoulder height. At no time were her hands above her head. He later said her hands could have gone up over her head for a bit. He took off his pants and helped her take off hers. He agreed that fairly quickly after the sex was concluded, he got up and briefly left. Shortly thereafter she got calls and left.

[19] He agreed with counsel that the date of this incident was the first time they had actually socialized. He stated they had seeneach other at school. He knew she was 14 years old. Counsel suggested to him that during the summer of 2021, she was between grades8 and 9. He agreed with that, and then agreed that they did not see each other or hang out at school at all. After their initial meeting, thedate of the incident was the first time they had actually seen each other. He also agreed with counsel that he had very little recollectionof anything that happened earlier that day.

He used the verb “would have” to describe his actions, instead of stating what he had actuallydone. [20] He stated that he had no plans for sex that day. He expected that they might kiss. He indicated, that although he had a lot ofprivacy at home, his parents should have been aware he was sexually active. They should have known he had condoms. He then said itwas not usual for him to have a condom under his pillow. This one had been there for a couple of weeks because his friend had plannedto use the condom in his bed.

He denied he had put the condom there because E.D. was coming over. [21] He stated he was planning on kissing E.D. and further sexual activity would be welcomed. He was not worried about E.D.seeing the condom. He then testified that she initiated sex. When she came to his place, he assumed she was interested. He agreed thatbefore swimming, there was no kissing or groping. Things felt a little awkward. [22] He was cross-examined about the size and weight of each of them.

He believed that she was almost as big as him, and that hehad always been described as underweight and a bit of a weakling. [23] He indicated that he asked if she wanted to take her pants off. She started to take them off. He suggested she get on top ofhim. She used a condom and got on top of him. He said this surprised him. He was still trying to kiss and get in the mood. He wassurprised she was ready for intercourse. [24] Later, during cross-examination, the accused testified he did not ask if she wanted to have sex. They were kissing. She wason top. She removed her shirt and he unclasped her bra.

He could not remember the kind of bra or its colour. [25] He then described how for a period of time 30 to 40 minutes they had intercourse. During this time, they easily andseamlessly changed positions on a number of occasions. There was moaning and kissing throughout. It was pretty good sex. Whencounsel suggested he had quite a lot of stamina, he said “thank you.” Finally he asked if he could ejaculate on her back, and she saidsure. He pulled out, took the condom off and ejaculated on her back. He got up and she laid there perfectly still. He got toilet paper andwiped her down. They then dressed and talked.

Moments later she left to be with her friends. He indicated there was no goodbye kissand she did not want a ride. He said he was in a great mood. He denied that he pushed her down and again indicated she wanted to havesex. He denied he choked her to prevent her from getting up. THE ARGUMENT [26] Defence counsel, Mr. Andrews, advised that the Crown would refer to the case of R v Van Deventer, 2021 SKCA 163, 407CCC (3d) 291 [Van Deventer]. He stated Van Deventer did not and could not alter the law as set down in R v W. (D.), (SCC), [1991] 1 SCR 742 [W. (D.)].

He stated the Court could not simply choose whom to believe. He encouraged the Court to look atthe accused’s evidence and apply the steps used in the W. (D.) decision. By doing this, the defence argued that the Court should thenhave a reasonable doubt, which obviously must result in an acquittal. [27] Crown counsel, Ms. Sparks, referring to Van Deventer, said I should not simply look at the accused’s evidence, and ask if Ihad a reasonable doubt. Rather, I should look at the totality of the evidence, and compare and contrast the evidence of the two principalparties.

I should use my own common sense and judgment in examining this evidence. She advised that if I did that, I could and shoulddetermine that there is nothing in the accused’s evidence that I can accept and rely upon. Further, that the accused’s evidence is nothingmore than “male sexual fantasy”, and that I am entitled to rely upon the evidence of the complainant, and conclude the charge has beenproved beyond a reasonable doubt. ANALYSIS OF THE CASE LAW [28] In my view, it is not correct to suggest there is some conflict in principle between the W. (D.) and Van Deventer decisions.

Inthe Van Deventer decision, the Court of Appeal referred on a number of occasions to the W. (D.) decision, and referred and quoted a

number of other decisions that cited and relied upon W. (D.) . The Court made it clear that the trial judge must consider the totality of the evidence, and compare and contrast the evidence of the parties. In paragraph 19 of Van Deventer , the Court quoted from R v Lake , 2005 NSCA 162 , 203 CCC (3d) 316 as follows: [19] … “The analysis of both the accused’s testimony and the Crown’s evidence is done with full knowledge of all the evidence that has been adduced at the trial. The first W.(D.) question does not vacuum seal the accused's testimony for analysis".

Further, at para 21: [21] In making such an assessment, the testimony of the accused must not be isolated for a separate examination or divorced from the remainder of the evidence. … Finally at para 24, the Court stated: [24] When an accused's evidence contains a bare denial of the allegations, a trial judge should consider this denial in the context of the evidence of the complainant and, indeed, the evidence as a whole.

As long as the assessment of the entirety of the evidence follows a discernable pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessment of the accused's bare denial. An accused's testimony should not be assessed in isolation at the first stage of the W.(D.) test. In order to properly assess the accused's denial, a trial judge must be permitted to consider the credibility and reliability of the allegations against the accused.

In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of the evidence. The evidence of the complainant provides the basis for an accused's denial, so considering one without the other could often be a pointless exercise. [25] A finding of credibility and reliability regarding a complainant's testimony about the alleged conduct can be the reason for rejecting the testimony of an accused, when considered in the context of the entirety of the evidence.

As long as a trial judge is mindful of the burden of proof and the principles from W.(D.) , they can reject the accused's evidence on the basis that the complainant's evidence is accepted to the extent that it leaves no room for reasonable doubt . … (emphasis added mine) [ 29 ] When I examine the totality of the evidence in this fashion, and place that evidence within the context and framework of the agreed upon facts and circumstances, I come to the conclusion that in early June of 2021, the accused and complainant had sexual intercourse at his home after the complainant came there to go swimming.

However, beyond this very simple and pointed determination, there is almost nothing else in the accused’s evidence that is plausible or believable or that I can accept as fact. I reach that determination for the following reasons. [ 30 ] The complainant testified that she turned 14 years old a month or less prior to this incident. In June of 2021, the accused was almost 17 and a half years old. He was almost three and a half years older than the complainant. [ 31 ] They met at a mutual friend’s home approximately three to four months prior to the incident.

They both testified that between their initial meeting and the date of the incident, they had had a number of conversations via Snapchat. In his evidence, the accused said they had had a number of encounters at school. Later, he completely backtracked from this statement. He agreed with Crown counsel that until June of 2021, the complainant was in grade 8 and not in high school. They were in different schools, and did not have meetings at school.

In fact, until the complainant went to the accused’s home in June of 2021, they had only that initial meeting at a mutual friend’s and a number of conversations on Snapchat. [ 32 ] Regarding the date of the incident, the accused had almost no recollection of anything that happened prior to the complainant’s arrival at his home. He only recalled that he had picked her up and driven her to his home. By way of contrast, the complainant had a good recall of being at school and the arrangement to get together.

She recalled that G. was to come with her, but then changed her mind. [ 33 ] Once at the accused’s home, they each recalled that they were in the accused’s room for a number of minutes, while they watched television, discussed matters and “broke the ice”. The accused agreed with Crown counsel that this initial conversation was “awkward”. They then decided to go swimming and swam for approximately 30 to 45 minutes. They agreed that nothing happened in the pool or until they were both back in the house and had changed. There had been no kissing, groping or physical contact to that point.

[ 34 ] From this point on, the evidence of the complainant and the accused are dramatically different. Crown counsel described the accused’s version after this point as “male sexual fantasy”. I would describe the accused’s version as plagiarism of a pornographic movie. In my view both of these descriptions are accurate and appropriate. According to the accused’s version, immediately following swimming, these two individuals, who barely knew each other, engaged in a lengthy and very satisfying sexual experience.

This girl or young woman, barely 14 years of age, suddenly decided that she could not keep her hands off the poor accused, and entirely initiated the sexual contact. The entire incident was consensual. It just so happened that he had a condom under the pillow on his bed, which a friend had left there a couple of weeks earlier. He was not anticipating sex or initiating sex, but coincidentally and conveniently, this condom was immediately available when the complainant initiated sex. He would have me believe that he immediately ascertained she “would like it rough”, so he began choking her.

He never testified that he asked about choking her or that she voiced any consent to choking. He just said he choked her and she enjoyed it. She denied any consent or enjoyment. During the incident, they seamlessly and effortlessly changed positions on a number of occasions, and participated in sex for approximately 30 to 40 minutes. At the end, he ejaculated all over her back. He earlier said he wore a condom. He offered no explanation as to why he would remove the condom and ejaculate on her back. Then, being the total gentleman that he was, he cleaned her up.

Then, almost as quickly as the entire incident began, it ended. She suddenly decided, having concluded the sexual encounter, to leave and return to be with her friends. He did not know where she was going or how she was getting there. He did know she lived in Balgonie, several miles from his home. Why she would suddenly terminate this wonderful and consensual encounter and begin walking “to nowhere” makes no sense to me. In my view, the accused’s description of the incident is entirely fantastic, implausible and unbelievable. [ 35 ] The complainant’s evidence was plausible and believable.

There were some things that she did not remember. Perhaps she did not remember every detail. More likely, some details put to her by defence counsel did not occur. Defence counsel cross-examined the complainant at great length about how she did not say no; she did not protest; she did not cry out or immediately tell others about the incident; she did not report the incident for a period of time. In my view, acceptance of any of these so called reasons to disbelieve her would be an acceptance of the rape myths. It would be an acceptance that rape victims must respond in a particular fashion.

She testified that she did not consent and intercourse occurred without her consent. In the face of a very aggressive and indeed intimidating cross-examination by defence counsel, she held steadfastly to that point. When the incident was over, she got out of there as fast and as capably as she could. [ 36 ] Simply stated, when the complainant’s evidence is examined with the totality of the evidence and in the context of events on the date of the incident, her evidence is plausible and believable. I accept it as fact. The accused’s evidence is not only implausible, it is fantasy. I entirely reject that evidence.

I reject the accused’s version that this 14 year old young woman not only consented, but initiated sex with someone she hardly knew. Further, I reject his evidence that she consented to and enjoyed being choked. I reject his evidence that they had a lengthy and consensual sexual encounter in various positions.

Finally, I reject his evidence that having concluded this enjoyable and consensual encounter, she quickly left to be with friends and began walking “to nowhere.” I accept the complainant’s evidence and conclude the Crown has proved the charge of sexual assault beyond a reasonable doubt. [ 37 ] I turn briefly to deal with the choking charge. Both parties testified there was choking. Clearly the choking took place as part of the sexual encounter. I found as a fact that the sexual encounter was without consent.

As indicated by Crown counsel, the choking occurred to overcome any physical resistance to sexual intercourse. Accordingly, I find that charge is also proved beyond a reasonable doubt and I convict on that charge. Dated at the City of Regina, in the Province of Saskatchewan, this 2nd day of February 2024. ____________________________ D. Kovatch, J