R v. M.W., 2023 NSSC 419

SUPREME COURT OF Nova Scotia Citation: R v. M.W. , 2023 NSSC 419 Date: 20231018 Docket: 514341 Registry: Bridgewater Between: His Majesty the King Plaintiff v. M.W. Accused Restriction on Publication: s. 486.4 of the Criminal Code Judge: The Honourable Justice Diane Rowe Heard: October 17, 2023, in Bridgewater, Nova Scotia Oral Decision: October 18, 2023 Counsel: Sharon Goodwin, for the Crown Claire Levasseur, for the Accused

Section 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Note: In writing the oral decision in this matter, editing has taken place to include citations and quotes, and to make changes to its format, grammar, or readability. No changes were made to the substantive reasons for this decision.

By the Court, orally: Publication Ban [1] There is a publication ban issued in the proceeding, pursuant to s. 486.4 of the Criminal Code. This ban is against thepublication of any information that could identify the complainant or victim in this case. [2] The Supreme Court of Canada noted in R. v. Adams SCC , this ban is intended to continue after the dispositionof a matter, whether on a finding of guilt or upon an acquittal of an accused.

The Court does not have jurisdiction to remove the ban, inaccordance with this jurisprudence, to ensure certainty for victims of crime in coming forward with reporting a sexual offence. There isno application by the offender or by the complainant to have the ban removed. [3] As there has been some evidence heard by the Court concerning past postings to social media in the context of the allegationsbefore the Court, it is prudent to underscore the law concerning the ongoing publication ban. Decision [4] M.W. is charged with two counts that: (

i) between March 1, 1982 and May 15, 1982, at or near New Germany, he did have sexual intercourse with K.V., a female personnot his wife without her consent contrary to s. 144 of the Criminal Code; and (ii) between March 1, 1982 and May 15, 1982, at or near New Germany, he did have sexual intercourse with K.V., a female personnot his wife and under the age of fourteen years contrary to s. 146(1) of the Criminal Code. [5] These charges predate the current provisions in the Criminal Code concerning sexual assault and sexual assault of minors.Section 144 of the Code repealed on January 4, 1983, and was in effect at the time of the offence.

Further, s. 146(1) of the Code,repealed on January 1, 1988, but was also in effect at the time of the alleged offences. [6]

Section 156 of the current Criminal Code provides that: No person shall be convicted of any sexual offence under this Act as it read from time to time before January 4, 1983 unless the conductalleged would be an offence under this Act if it occurred on the date on which the charge was laid. 2019, c. 25, s. 53. [7] A statement of the accused M.W. was admitted, with the defence conceding that the statement was made voluntarily and not incontravention of sections 10(a), 10(b), and s. 7 of the Canadian Charter of Rights and Freedoms.

The Crown utilized the statement forthe purposes of cross examination only. [8] In regards to a R. v. Corbett, (SCC) application that the defence might have contemplated making, the Crownprovided its position on this possibility in advance of trial by way of correspondence to the Court dated October 4, 2023, as copied toM.W. and his counsel. Upon the Court’s request to counsel regarding whether there were any preliminary procedural issues fordiscussion prior to proceeding with the trial, both counsel concurred that they were satisfied with proceeding.

I will note that the Crownadhered to its correspondence for the defence to consider regarding this potential element arising at trial, with one question asked of theaccused and without any particulars elicited or requested, which will be canvassed in this decision. [9] Crown and defence agreed that there was no dispute concerning jurisdiction or identity concerning the accused.

Evidence [10] The allegations concern a single incident of sexual assault, alleged to have occurred over 40 years ago. [11] K.V. alleges that M.W. sexually assaulted her one day when she was 13 years old, at her home in New Germany, while he wasbabysitting her and her siblings for a week in the spring of 1982. Her parents were on a road trip to Ontario. [12] M.W. admits that he, and his then wife, did babysit K.V. and her siblings during a week that spring in 1982.

In all otherrespects, he denies that K.V. was at home alone with him on any particular day during that week and denies that any assault occurred. [13] The Crown witnesses were the complainant, K.V., and her mother, L.E. [14] The defence tendered M.W. [15] All of the three witnesses agree that M.W. and his former wife were babysitting the complainant, and her two older brothers, inthe spring of 1982.

L.E.’s evidence was the most particular on the date, noting it as a week in April, 1982. [16] M.W. is the complainant’s uncle, and her mother is his sister. [17] K.V. was then 13 years old at the time of the alleged offence, and she stated clearly that she did not consent to any sexualintercourse. The Court notes she would have been unable to legally give consent in 1982, with the age of consent then set at 14. [18] The viva voce evidence of the witnesses was put before the Court and credibility findings are key to this decision. There was nodocumentary or other evidence that the Court considered. Law

[19] Before beginning to weigh the evidence put before me, I will canvass the principles of law that informed my consideration. [20] First and foremost, the Court must consider the test set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 whereCory, J. stated at p. 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [21] Saunders, JA, in R. v.

JMM 2012 NSCA 70 set out at paras 47 to 48 guidance and remarked on the challenges inherent in theevaluation of evidence in a historical sexual assault matter as follows: [47] The variety and significance of the conflicts in the evidence in this case obliged the judge to subject the complainant’stestimony to a very critical eye, using criteria appropriate to her circumstances. In my respectful view, that was not done. R. v. D.D.S.,2006 NSCA 34. [48] In a case like this one, the strong warning expressed by McLachlin, J. (as she then was) in R. v. W.(R.), (SCC),[1992] 2 S.C.R. 122, at p. 134 is especially apt.

The Chief Justice observed: As Wilson J. emphasized in B.(G.), (SCC), [1990] 2 S.C.R. 30, these changes in the way the courts look at theevidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence ofadult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocentperson require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is thatwe approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis,taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or"child" standards to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments inthe law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate. But I would add this.

In general, where an adult is testifying as to events which occurredwhen she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as toperipheral matters such as time and location, should be considered in the context of the age of the witness at the time of the eventsto which she is testifying. [emphasis added] [22] Campbell, J. in R v Twinley, 2020 NSSC 266 (on appeal) reflected on reasonable doubt in the context of a matter similar to thiscase, in which the accused’s defence was a denial that the sexual assault had occurred at all. Campbell, J. noted at paras 19- 22: Test for Reasonable Doubt [19] Mr.

Twinley argues that the Judge failed to apply the proper test for reasonable doubt. His counsel says that Mr. Twinley’sdenial was plausible and believable. There was nothing within that denial that would cause one to doubt it. He was not moved from thatdenial on cross-examination. By then accepting the evidence of the complainant the Judge, on this argument, turned the case into acontest of credibility, preferring the complainant’s version of events over Mr. Twinley’s denial. [20] This is a problem faced in many sexual assault cases. There are only two witnesses.

The complainant gives evidence about asexual assault having taken place. The defendant provides a denial that is forceful, internally consistent and consistent with all the otherevidence, except that of the complainant. If a “contest of credibility” in that sense, were to be strictly avoided, a not guilty verdict wouldbe required in every such case. But it is not. That is because a “contest of credibility” means a weighing of the evidence of one againstthe evidence of the other to determine which of the two is more worthy of belief.

Simply deciding which of the two witnesses is morebelievable and making a finding of guilt based on that determination is faulty legal reasoning. It fails to recognize the burden of theCrown to prove guilt beyond a reasonable doubt. [21] Assessing the evidence of the complainant against the evidence of the accused and assessing the evidence of the accusedagainst the evidence of the complainant is part of the assessment of all the evidence as required in a criminal case. The purpose is not todetermine which is more believable.

It is to determine whether the Crown has proven the guilt of the accused beyond a reasonable doubt.An accused person may provide a denial that is, on its face, believable. When considered in light of the complainant’s evidence however,it may no longer be as believable. The complainant’s evidence may cast doubt on the denial. Trial judges are required to struggle withthose competing versions of events in many cases.

The issue is not just whether the accused person’s denial is less believable than thecomplainant’s evidence, or even if it is quite a bit less believable than the complainant’s evidence, but whether it raises a reasonable

doubt as to the accused person’s guilt. [22] That process can become problematic when a trial judge accepts the evidence of the complainant and puts an unspoken onus on the accused person to disprove that evidence. That process can also be problematic when the trial judge simply accepts a denial on its face without testing it against the other evidence in the trial, including the evidence of the complainant. Evidence is not assessed in a hermetically sealed compartment and only tested for internally inconsistencies. It is tested against all the other evidence and doing so does not create a contest of credibility.

If a denial is assessed against all the other evidence and raises a reasonable doubt the accused person should be found not guilty.

A denial that raises a reasonable doubt, standing on its own, without being assessed against the other evidence, has not been properly assessed. [emphasis added] [ 23 ] In addition, the Court considered the appellate decision in R v GEH , 2012 NSCA 69 , in which Oland, J. wrote at paras 24 and 25, and para 30: [ 24 ] The challenges faced by a judge of assessing the credibility of witnesses were described by the majority of the Supreme Court of Canada in Gagnon at ¶ 20 thus: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 25 ] In R.E.M. , McLachlin, C.J. writing for the court observed at ¶ 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor.

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. … [ 30 ] In allowing the appeal and restoring the verdicts of guilty in R.E.M. , McLachlin, C.J. writing for the court stated: [ 66 ] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant.

This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required.

In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt. Complainant K.V.’s Evidence [ 24 ] K.V. recounted that on a day during the week when her uncle M.W. and his former wife, F, were babysitting her and her two older brothers, she felt unwell. [ 25 ] She stated that she requested permission to go home not long after she arrived at school, and called home for M.W. to pick her up. She recalled that he did so, and brought her home. [ 26 ] K.V. then stated that on arrival home with M.W. she went to her bedroom.

She then recalls nothing until a memory of being in her parents’ bedroom, on her back in the middle of their bed, being penetrated vaginally by M.W.’s penis. She stated she felt horrible, disgusted, and covered her face with her left arm. She recalled the sensation of him thrusting into her vagina. K.V. was detailed in her recollection that her legs were straight out, and she was on her back, with M.W. between her legs in a kneeling upright position. [ 27 ] K.V. recalled that her parents had a larger bed, and that the room was dimmed.

She then does not remember anything else afterward. [ 28 ] She could not recall if M.W. ejaculated or if she was wet. She was unable to remember if she was clothed or have a memory of M.W. removing her underwear. [ 29 ] K.V. did remember that M.W. had a blank look on his face, and appeared to her to be either enjoying himself or “entitled” to

the sexual contact. [ 30 ] Her recollection of the week, generally, was that there were activities taking place in her home that included drinking alcohol and smoking marijuana and that she kept to her bedroom that week. [ 31 ] K.V.’s evidence was internally consistent and reliable. It was apparent that she was recalling her home and community as best she could remember them, given the passage of years.

Her evidence was consistent with that of both L.E. and M.W. on the peripheral matters of timing and on the layout of the location where the assault occurred. [ 32 ] K.V. readily admitted when she could not recall certain aspects, such as whether the call was made from the principal’s office, that were minor or peripheral. [ 33 ] However, she also was frank that she could not remember details on how the sexual assault was begun, and was unclear on the extent of whether they were clothed or unclothed. The Court does find however that she was very clear on the activity itself, in regard to position and sensation.

She also admitted she could not recall whether the intercourse caused her physical pain and that she has no memory of the aftermath. I will note that there is no evidence or argument before the Court that a noxious substance was given to her and no evidence of a “lost recollection newly remembered”. [ 34 ] Her evidence was that she had told an older brother K.E. about the assault, and that he had then informed their mother. Her mother L.E. had then reported the matter to the police.

Her evidence on cross examination that she spoke about the incident with her mother several times over the years. [ 35 ] In total, I found K.V. to be a credible witness.

I did not find that she embellished her evidence, and gave it in a straightforward and firm manner, consistently and upon cross examination concerning the sexual intercourse, in detail. [ 36 ] M.W.’s counsel explored K.V.’s knowledge concerning other criminal proceedings involving the accused, however, beyond a confirmation the witness had some knowledge, there was no motivation to embellish or to lie established. [ 37 ] As the authorities cited previously have alluded to, it is very hard for a trial judge to describe what the “ring of truth” is when it is encountered.

A person can be unreliable and still be credible, a person can be credible but not reliable, however, in regard to K.V.’s evidence the Court finds that she was largely quite reliable on details concerning the circumstances of that week and the day she returned home from school with her uncle and credible concerning the allegation of a sexual assault. This was the case under both direct and cross examination. Complainant’s Mother L.E.’s Evidence [ 38 ] L.E. is the accused’s sibling.

Her evidence also spoke to the layout of the family home, where the assault was alleged to have occurred, the time of the babysitting by her brother and his wife, and she stated he was to be paid as he was recently unemployed.

Her evidence is tempered by her acknowledging a comment she had made prior to the proceeding that she would “put a bullet between the eyes” of the accused. [ 39 ] She indicated that the family truck was parked in the garage where her husband worked during that week, and indicated that there was agreement that M.W. and his wife were to stay at L.E.’s home for the week. [ 40 ] L.E.’s evidence was that she was told of the assault by her husband, who had been informed by her son K.E. K.E. is K.V.’s older brother. She then went to the Bridgewater Police to report the assault the fall of 1982.

On cross examination, she was questioned as to whether K.V. accompanied her, as her evidence before the Court was that she went alone but, on review of her statement given in 2020 to police, she recalled that she took K.V. to the police station. [ 41 ] I will note that her attendance at the police station to report an assault in 1982 was not disturbed by this discrepancy.

Her reliability on the overall circumstances of the allegation was high, and although she was not reliable on whether K.V. did or did not accompany her, she was very credible that she did attend at the police station to report K.V.’s assault by her uncle M.W. in the Fall of 1982. Accused M.W.’s Evidence [ 42 ] M.W. was the sole witness in his own defence. [ 43 ] His evidence was reliable in terms of the circumstances of being a babysitter with his former wife.

He gave details concerning who had a vehicle available that week, and he outlined that his vehicle was being used that week by his wife to get to work at the Bridgewater IGA.

He stated he could not have picked up K.V. from school. [ 44 ] He described a “typical day” for that week was of him watching TV, possibly going to a nearby local hangout spot, cleaning up after the kids, and cooking for himself, but not the kids. [ 45 ] M.W.’s description of the home was consistent with the other witnesses. [ 46 ] He denied that he had engaged in any use of alcohol that week, as he stated he had no money, having been fired from his job.

M.W. denied any drug use at any time in his life. [ 47 ] I will note that there was one question asked in regard to a prior criminal record in response to evidence in his police statement that he had been a heavy drinker at times. M.W. did allude to his drinking from time to time. One question concerning whether he had a criminal record was put to him, generally and without any details, upon his confirming that his drinking had resulted in a breach of conditions associated with a conviction. I wish to underscore that I am not relying in any way on evidence of a prior record and any

associated breach of conditions, but I will consider his response in terms of establishing his credibility.

I found in this aspect, M.W. acknowledged his record, which was truthful. [ 48 ] On cross examination there were difficulties in regard to reliability and credibility as M.W. demonstrated a detailed memory of his former wife’s car, its state of repair, and a general idea that he could not have been home at all during the time period given his supposed usual routines, but he could not state a date for when he married his now deceased former wife, when they separated, or when she died. [ 49 ] On cross examination he stated he was “surprised” by the allegation of sexual assault when he gave his cautioned statement to the police, although he had a week’s notice before attending at the RCMP .

This statement to RCMP was entered for the limited purposes of cross examination. The prosecution highlighted that his responses to questions concerning the allegation of a sexual assault was a consistent response of “I don’t remember that”, at least four times, rather than the firm and flat denial, with a potential alibi that was adopted on the stand during the trial. [ 50 ] M.W.’s evidence now was he “can’t remember what didn’t happen” so he just said he “couldn’t remember”. It is hard to rely on his evidence in trial, then, and the Court is not satisfied in regard to his credibility.

When he was questioned by the prosecution “then why not say “that didn’t happen””, his response was that he was nervous at attending the police department. [ 51 ] In terms of a reasonable human response, when an adult is faced with a very serious question concerning a personal fact or occurrence, such as an allegation of rape, “I don’t remember” differs in quality than “that didn’t happen”, which is M.W.’s evidence at trial.

A direct question asking for information concerning an allegation of rape met with “I don’t remember that” is unusual and not a credible response as an equivocal statement to “it didn’t happen” as in a current and complete denial of the event at a trial. [ 52 ] In regard to the first branch of the W.D. test, I do not believe the evidence of the accused.

I did not find him consistently reliable, and not credible. [ 53 ] In moving onto the next branch, whether there is a reasonable doubt created by the testimony of the accused, I do not find that a reasonable doubt was created when considering his evidence at trial regarding a total denial. [ 54 ] I must move onto the third branch of W.D., supra . When I consider the totality of the evidence there is consistency established regarding the place, the time and the circumstances. There was an opportunity for a sexual assault to occur upon K.V., who I have found did go home from school on a day that week.

I accept the evidence of the complainant that she went home early as she was not feeling well. K.V. was clear on the position of the intercourse, the action of penetrative rape, the light conditions in the room, and the size of the bed. She was unshaken on cross examination. There was no evidence of an underlying motivation that might influence her testimony or to lie. There was no exaggeration or embellishment by the witness. I found her to be frank and straightforward.

There was no corroborative evidence concerning disclosures to others, including counselling, before the Court. [ 55 ] However, there was the corroboration of the Complainant’s mother. It appears that this incident became long held familial information, with the witness Complainant speaking to other family members from time to time. The Court does note the Complainant’s brother, who she told, did not appear as a corroborative witness.

However, her mother did appear and she was firm in her evidence that she attended the Bridgewater Police in the Fall of 1982 to make an allegation to police concerning a sexual assault not long after she was informed by a family member. No investigation was undertaken at that time. Many years passed. K.V. made her allegation to the police directly now, as an adult. The legal landscape has changed significantly in the intervening decades concerning sexual assault. Conclusion [ 56 ] M.W. is presumed innocent until proven guilty beyond a reasonable doubt on each of the charges before the Court.

I can accept all, some or none of any of the witnesses evidence. In considering the evidence of K.V. concerning the allegation of sexual assault, I found her to be reliable and credible.

This is not a credibility contest, though, and I have outlined my findings on all of the evidence put forward by the witnesses. [ 57 ] Therefore, concerning the core allegation and the essential elements of each count, I am satisfied beyond a reasonable doubt that K.V. was sexually assaulted by M.W. during an incident while in his care that occurred in April of 1982, when she was under the age of 14 years. [ 58 ] I find M.W. guilty of the offence referenced in both counts, as they are cited in sections 144 and 146(1) of the Criminal Code of Canada that was in effect at the time of the offence. [ 59 ] I am also mindful that the Nova Scotia Court of Appeal and others have ruled that a conditional stay should be imposed by trial courts where convictions for sexual assault and sexual interference arise from the same facts ( R v CRH 2012 NSSC 101 ; R v.

SJM 2009 ONCA 244 ; R v. CGF 2003 NSCA 136 ) with the conviction for the more serious offence to be maintained and a conditional stay entered with respect to the other one ( R v. CGF , supra at para 39 ). I will be seeking the submission of counsel in regard to this law, and its applicability to this matter, upon sentencing. [ 60 ] M.W., please stand. The Court finds you guilty on the two counts put forward on the indictment. Diane Rowe, J.