Her Majesty the Queen - v. -, 2019 SKPC 68

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 68 Date: November 21, 2019 Information: 991043635 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.M. Appearing: Ms. Leona Andrews For the Crown Mr. John M. Williams & Mr. Thomas Hynes For the Accused JUDGMENT AFTER TRIAL HENNING , J NOTE TO READERS: A PUBLICATION BAN PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA HAS BEEN MADE IN THIS MATTER. IT IS PROHIBITED THAT PUBLICATION OR BROADCAST OF INFORMATION WITH RESPECT TO THIS CASE BE DONE IN ANY MANNER THAT PERMITS THE IDENTIFICATION OF THE ALLEGED VICTIM.

[ 1 ] The Accused, referred herein to as ‘A.M.’ or ‘the Accused’ is charged that he did: 1. On or about the 16 th day of November 2017, at or near Regina, SK, did commit a sexual assault on K.V., contrary to

section 271 of the Criminal Code . 2. On or about the 16 th day of November 2017, at or near Regina, SK, did, being in a position of trust or authority toward K.V., a person aged 16 years, for a sexual purpose, touch, directly or indirectly, with a part of the body or with an object, hands, any part of the body of K.V. contrary to section 153(1) (

a) of the Criminal Code . The complainant in the charges will be referred to as ‘K.V.’ or ‘the Complainant’. CROWN EVIDENCE [ 2 ] Two witnesses were called by the Crown, the first being the Complainant, K.V. She testified with a nearby support person who came with a canine and did not appear uncomfortable in giving her testimony which was given in a clear, direct and unemotional manner.

It must, of course, be understood that there is no manner of testimony that should be anticipated in any situation which may be utilized to assess the strength or weakness of evidence given and it is the evidence itself that must be evaluated. She had been under the age of eighteen at the time of the alleged offences but by the time of the trial, September 16 and 17, 2019, she had reached the age of eighteen years, completed high school and taken employment. [ 3 ] The Complainant gave evidence of her living arrangements before and since the date of the alleged offence.

She had lived in the family home most of her life which included her father, who is the Accused, her stepmother, and her brother. Their house consisted of three levels. The main floor contained entrances, a sunroom at the front, a living room, kitchen, dining room, bathroom and stairs to the second floor. There were four bedrooms upstairs, with three on the second floor for her, her brother, a spare room and a second bathroom. The parents’ bedroom was on the third floor. She described the stairs and what areas would be passed when using them.

Other witnesses did this as well and there is no confusion or controversy about the physical layout of the house. [ 4 ] After the alleged incident of assault, the Complainant lived with her boyfriend and his parents for a time, and then with her grandparents, and then returned to live in her boyfriend’s parents’ house again, which was continuing at the time of the trial. She described her family life and relationships prior to the alleged assaults. She had gotten along well with her father, better than with her stepmother, whom she felt was at times unfair and overly strict with her in comparison to her brother.

She said she felt “mentally exhausted” at times with conflict with her stepmother, who would impose sanctions for perceived failures on her part. These sanctions included taking her cellular phone away for periods of time and not allowing her to go out. She also described chores that she was required to do around the house. [ 5 ] The Complainant then proceeded to describe the incident that forms the basis for the offence which occurred on November 16, 2017. She stated she slept with the door to her room closed and was in bed at a fairly late hour when she heard a dog barking.

She then realized someone was in her room who was her father. He came over to her bed and sat down on the bed and touched her breasts over her shirt. She could not indicate initially how long this took, but she spoke up and asked what he was doing and turned on the light. She had no real idea of the time, but thought it occurred at 3:00 or 3:30 a.m. She elaborated further by stating that her father had been out that night drinking with friends. She was sleeping but heard what appears to have been one of their three dogs, barking and someone come up the stairs.

The person who went up the stairs went up to the third floor, she said, but she did not hear the person (who could only have been her father on her evidence) come down to the second floor. [ 6 ] K.V. gave more details in her direct evidence with some variations, including stating that she realized the door to her room was opened and that she closed her eyes again, thinking that perhaps her father had entered to kiss her on the forehead although that had not occurred since she was much younger.

In her second recounting of the incident on direct examination she stated that he had not just touched her breasts, but had taken a position on the bed on his hands and knees over her, but she had gotten up quickly, after perhaps ten or fifteen seconds, and turned on the light. This might have been difficult to do if he had been on his hands and knees over her, but she could not describe his position well. She stated that he was wearing just his underwear and

that was unusual except when he was getting ready for bed. [ 7 ] The Complainant then further modified her description of the father’s position and actions saying he “lay beside her” and stroked her breasts in that position. She also modified the time that these events took, saying it was five to ten minutes, a substantial difference from her first recounting of the event which made the encounter appear very brief, ten to fifteen seconds. This was her evidence in direct examination.

Cross-examination did not revisit these points. [ 8 ] After the incident she called her boyfriend, presumably on her cellular phone, but got no answer. She tried to get more sleep and said she did sleep some. The day that followed was November 17 th , so the incident by her evidence was late on the 16 th or early the morning of the 17 th . She did not recall what occurred during the day following, but she got a message from her boyfriend apologizing for not answering her call. She spoke to a school counsellor and her boyfriend who both told her to go to the police. She did this about two days after the incident.

She could not recall exactly what day she spoke to the police, but she went to live with her boyfriend shortly after the incident and did not tell her parents where she was going, but she wanted to get out of the house. She gave more detail of this sequence of events which is set out below. Other witnesses gave evidence which made the sequence of events clearer in the several days following the alleged incident.

She did remain for at least another day or more in her parent’s house and that interval included a sleepover for a friend’s birthday party. [ 9 ] Before and after K.V. went to her boyfriend’s she got numerous messages from her parents asking about her, but she felt that she could not talk to them, but after some interval let them know where she was. In the short time that she remained in her parents’ house before moving to her boyfriend’s, she avoided her father. She felt that her parents did not notice any change in her. She spoke to the police giving a verbal and written statement.

She had not spoken with her father since the incident, and she added at the end of her direct testimony that she could smell alcohol on him during the incident. [ 10 ] On cross-examination, the Complainant said that the incident described was the only occurrence of a sexual nature. She said she had a good relationship with her father, and he was the one she could confide in if any issues came up. She said she had school the day after the incident and would have gone to bed at about 11:00 p.m. She slept until she heard the dog bark and heard someone going up to the third floor.

She heard her father tell the dogs to be quiet. She assumed that he had just come home. She knew the name of the friend he was going to visit that night and saw her father take a six-pack of beer from the fridge before leaving. The evidence about detecting alcohol odour during the incident had not been mentioned in her statement which had been given on the 20 th . I do not find that recollection or the fact of some alcohol consumption to be a significant fact. [ 11 ] The Complainant in cross-examination spoke more of her boyfriend giving some details about that relationship and she gave his name.

She stated they had broken off the relationship at the time of the incident. Nonetheless, she messaged him after the incident using a program called ‘SnapChat’. These messages do not stay on the phone. She had not mentioned this in her statement. She went on to describe leaving for school early the next morning. She did not recall any messages sent that following day by her father. She was shown a written sheet of messages that were entered as Exhibit D-1 which passed between her and her father which were of a very ordinary sort. She remembered them and acknowledged sending and receiving them.

She came home at the end of the day and had supper with her family. She said she did chores and clean-up after supper. [ 12 ] The day following, the Complainant said was a Friday and she went to a friend’s overnight birthday party. She exchanged Facebook and text messages with her father over this and whether she required an overnight bag. A three-page document was shown to her of text messages between herself and her father on the 17 th of November in which she declined to get anything for the overnight stay. This was exhibited as D-2.

Although she had initially denied messaging with her father, she was clear and straightforward in acknowledging and discussing these messages when they were shown to her. She made some elaboration regarding the messages and the reasons for them. Exhibit D-3 was a printed sheet of further unanswered messages to her with her father or parents asking when she was coming home and asking her to call them. Exhibit D-4 was a message by them to her boyfriend asking if she was with him. Exhibits D-5 and D-6 show messages asking the Complainant to call home.

Exhibit D-7 from November 19 th was an acknowledgement from her saying that she was staying with her boyfriend by that time, and the parents or father replied asking her to talk to them. The Exhibit D-8 text chain appears to include at least one which was an interjection from her boyfriend saying that the ‘talking’ requested was not allowed. [ 13 ] The Complainant gave some explanations of these last text messages and stated that after

she had been to the police, by the time when she told her parents that: “she was safe and not to worry”. She acknowledged all of the messages that have been exhibited and that she did not respond to later messages or phone calls from either of her parents. [ 14 ] On further cross-examination the timeline of events was made somewhat clearer. The 19 th of November was the day the Complainant left home and November 20 th she went to the police. She met with her boyfriend to do this with him.

Exhibit D-9 shows messages relating to picking up of belongings between her boyfriend and her parents using his Facebook account. She stated that she was directing things even if the messages came from her boyfriend on his account. She acknowledged that the boyfriend referred to throughout is the same person with whom she has had a relationship since 2016. [ 15 ] This relationship is significant and central to the defence theory of why a false accusation has been made.

The Complainant was cross-examined extensively on this area and answered in a direct way to all questions without hesitation, uncertainty or reluctance, continuing to be articulate in her testimony, as she was throughout. The information on which this line of questioning was based, came from a diary, lawfully in possession of the defence that had been the subject of a preliminary constitutional argument in this proceeding. Amendments to the Criminal Code of Canada in late 2018 had required that such material in possession of the defence should be subject of a hearing to determine admission and use.

It was ruled that these provisions were not operative for constitutional reasons. [ 16 ] Neither the diary in question nor direct quotations from it were presented in court to the witness. When asked about the relationship between K.V. and her boyfriend the Crown objected to such a line of questioning about the Complainant’s feelings and attitude as being improperly sexual, or potentially sexual, matters. The questions did not refer to sexual subjects but to emotional attachment and they were permitted by the Court as relevant to the question of credibility.

In questioning, suggestions were put to the Complainant regarding the relationship with her boyfriend and she readily adopted and acceded to the facts put to her. Information from the diary assisted the framing of the questions, but the diary itself was never quoted or produced. The asking of questions based upon information only might not, in my opinion, have triggered the requirement of the procedure set out in the Criminal Code pertaining to material in the possession of the defence even if the provisions relating to that material had not been ruled to be inoperative.

This is not a point to be determined, however, in these proceedings. The Complainant gave clear and unequivocal answers agreeing with certain propositions put to her in cross-examination. Her evidence in this area follows. [ 17 ] That evidence, in

summary, is set out below. a. The Complainant revered the relationship with her boyfriend and it was on hiatus at the time of the alleged incident. The relationship had been in effect since February 21, 2016. Her boyfriend had a girlfriend before the Complainant, but that relationship had ended. b. The Complainant utilized the allegation of sexual assault to get him, her former boyfriend, involved with her again. c. She acknowledged that she believed she was in love with him and he made her happier than she had ever been before. d.

She was jealous of any other person with whom she might be in competition with for his attention and she was determined to keep him in the relationship. e. The relationship had improved her and assisted her. It made her life “worth living”. f. She could not imagine her life without him – they were a “perfect fit”. g. By the end of 2016 she felt more at home with his family than with hers. He and his family are now her home and family rather than her parents. h. She had felt an outcast and discriminated against by her family and had dreamed of moving in with his family. i.

By 2017 her love and commitment were stronger than ever, and she felt “owned” by him and wanted others to know that she was “owned” by him. j. The relationship had broken off, however, about November 12, 2017 and he was the instigator of that. This impacted her a great deal. She hated the thought of not being with him as he was what “kept her alive”. She hated the thought of losing him and her head was “spiraling”. k. She had an Instagram account under the same of ‘jaywolfe84’ and she posted a long message on November 15, 2017 telling all her ‘followers’ what she felt about splitting up with her boyfriend.

This was acknowledged by her and exhibited as D-10. That message reflects an upset emotional state and the loss of the relationship for which she blamed herself. In her testimony, she confirmed that and made it clear that she considered herself at fault in the breakup. l. She acknowledged that she wanted her boyfriend back, and that she did indeed have him back by November 19, 2017 following

the alleged complaint. [ 18 ] The Complainant said that it was her boyfriend who was the first person she told of the sexual assault complaint. On November 19 th she told him she wanted to move out and stay with him, and she did so that night. However, she said that he told her she had to talk to his mother, which she did, who told her she had to go to a counsellor. She spoke to a counsellor the next morning at school. The counsellor told her she had to go to the police, which she did. The Complainant stated she still loved her father and thinks well of him, but he must be accountable.

She reasserted that the incident happened as stated. [ 19 ] The second Crown witness was Constable Cindy Pidgeon. She stated that she was an “inquiry officer” at the Regina Police Service front desk and would take initial reports from members of the public before referring them to an investigator. The Complainant had initial contact with Cst. Pidgeon and there was objection over the question of whether the Complainant’s demeanor could be described. This was allowed, but I do not find it to be of significance in determining trial issues. Cst.

Pidgeon took the statement from the Complainant rather than another investigator. A video of the Complainant and a young man was exhibited showing them at the front desk area of the Regina Police Service on November 20, 2019. DEFENCE EVIDENCE [ 20 ] The first witness called was M.M., spouse of the Accused for eighteen years. She described her relationship with her stepdaughter, who had always called her ‘Marie’ from the time she came to live with them at age 2 ½ years. She admitted to being stricter with K.V. than her husband had been.

She went through a book of photographs which showed the interior details of the house which was exhibited as D-12. She recalled the night of November 15, 2019 and having supper, after which her husband went to visit a friend named E.H. She saw him leave. She works and said that she went to bed at her regular time of 9:30 p.m. [ 21 ] M.M. said that her husband came home and was in bed after midnight, and she woke again at about 3:30 because of a dog or dogs barking which he got up to deal with.

She said he was gone only a short time, and she went back to sleep getting up very early for work and leaving her husband sleeping. He had that day off work. She returned to an empty house at 3:30 p.m. She said that her stepdaughter usually was home by 5:00 but she had a sleepover that night. They trusted her to do such things. [ 22 ] The next day she described as uneventful with her stepdaughter being asked to vacuum the house, but she did not and left. After she was gone for a time they tried to message her without any response. She said they also called the boyfriend’s mother to make inquiries.

She and her husband sent more messages for K.V. to call them. The parents heard after some interval from the boyfriend who informed them that he and K.V., their daughter, had been to the police. On hearing this, the Accused took the legal guardianship papers with respect to K.V. with him and left to see the police himself. He gave more detailed evidence regarding that.

On the following Tuesday they were contacted by the police when two police vehicles showed up at their house as they returned from being out. [ 23 ] On cross-examination, M.M. said they did not detect anything unusual with respect to K.V. during the period following the alleged incident in which they had contact with her. The witness stated she had never talked with the police about any part of this matter.

She also added that she got some information about what was going on through her sister who was friendly with her stepdaughter. [ 24 ] The next witness was E.H. who was the friend that A.M. had visited on the night of the alleged incident. His evidence was brief as he described how he and A.M. had brought a six-pack of beer to his house, that they had done something in his garage, and then gone to a pub for a beer driving in A.M.’s truck. Alcohol consumption was minimal and they left the pub before midnight.

The movements of the Accused that evening are not in dispute nor is alcohol consumption a factor in events of the night. [ 25 ] The final defence witness was A.M., the Accused. He denied entirely any sexual assault

or touching in any manner. His daughter had been with them for fourteen years and his current wife was not K.V.’s biological mother. K.V. had been subject to joint custody with his former wife, but she had given that up and their daughter came to live with him and his second wife when she was very young. He stated that his former wife had seen K.V. perhaps five or six times in fourteen years. He described their residence and referred to the book of photographs, Exhibit D-12, to lay out the house in detail. He described his shift work at Evraz which had a pattern of days on and off.

He knew of the relationship between K.V. and her boyfriend which had been continuing for about 1 ½ years. He did not like the way the boyfriend treated his son (whom K.V. had asserted was given preferential treatment over her). He also felt that K.V.’s commitment at school had slipped due to this relationship, but he chose not to interfere with the relationship. [ 26 ] The Accused described his actions on the night of the alleged incident. He confirmed going to his friend’s for the evening. He confirmed that he took a six-pack of beer and that he had gone to assist E.H. with a house project.

They did not do very much work, it appears, and went to Shannon’s, a pub, about 10:15 and left by midnight. He described returning home, changing into a T-shirt and pajama pants, using the washroom and then going to bed. He was not working the next day. No lights were on and he did not go near the children’s bedrooms. He mentioned he had not kissed the children good night since they were eight years old. He recalled getting up to quiet the dogs, and that was all that he did. [ 27 ] A.M. stated he saw K.V. after school that next day and then in the afternoon the following day. He did not observe any changes.

He stated that on November 17 th he worked a day shift and came home, at which time he exchanged messages with his daughter about a sleepover. He identified the messages that had been exhibited. He mentioned that his daughter spent a lot of time in her room by herself. He said that he worked on the Sunday (the 19 th ) and when he came home his wife told him that his daughter had been home and had not done the chores that she asked her to do and had left. They did not know where she was, which was not usual for her. He recounted the steps they took to contact her without success.

They made inquiries with his wife’s sister and went by places that K.V. might be. He said they decided that they should give K.V. some ‘space’ and they were aware that she had broken up with her boyfriend but, of course, they did not know they were together again at that time. They did get some information eventually, later in the afternoon from the boyfriend. A.M. identified the various message chains exhibited.

They learned that K.V. had “moved out” and his wife immediately thought of getting the keys to the house from her. [ 28 ] A.M. stated that he was in “disbelief” when the police were mentioned in the texts, and so he decided to go and see the police himself, which he did. He brought the custody papers with respect to K.V. and spoke to someone at the front desk of the Regina Police Service but they had no information to give him. He made this inquiry to find out if there was any legal reason he could not see his daughter. He returned home and later was out with his wife when the police called wanting to see him.

He stated he was in shock and disbelief when he spoke with them and learned of the complaint of sexual assault. However, he was not charged with any offences immediately. K.V. attended to the family home a day or two later to get some personal things. [ 29 ] On cross-examination, the Accused was questioned about family relationships and relations with his daughter’s boyfriend. The steps and concern over K.V.’s absence were again canvassed. He asserted that he and his wife were “indifferent” to the relationship between K.V. and her boyfriend, but they did not interfere.

He stated he would not go into his daughter’s room without knocking. It was only on the 20 th that he found out that she was with her boyfriend and would be staying with him. He said he respected her decision to move out. He described that they packed up her clothes and other personal items, but some things were left. Apparently, that included the diary that was referred to. [ 30 ] When the Accused had contacted the police on his own, he stated that the purpose was to find out if there was any legal reason he could not have contact with his daughter.

It is not contested that he did go and see the police before they contacted him, and he did not receive any significant information from that inquiry. He also stated that he did not see his daughter exhibit depression or unhappiness. He stated that if it existed, it was well-hidden. He also stated that he did not see his daughter’s diary, but his wife had found it and read it. She gave it to him to give to his lawyer. [ 31 ] The Accused then strongly denied again the criminal allegations made against him. DEFENCE ARGUMENT [ 32 ] The defence reviewed the well accepted onus on the Crown to prove a case and the

defence requirement to only raise reasonable doubt if the Crown established a prima facie case. This case is essentially a factually-basedone, which does not involve law that is controversial or unclear. There is the necessity, however, to analyze the evidence in detail todetermine whether the Crown evidence is to be accepted or whether the defence evidence is to be accepted or, if no definite finding onwhich evidence is to be accepted is possible, whether the defence has raised a reasonable doubt even if the defence evidence is not fullyaccepted.

The defence referred in detail to the evidence, and the credibility of the Accused and a possible motive of the complainant tofabricate the complaint. [33] The defence cited R v Knox-Moffatt, 2018 SKQB 142 [Knox-Moffat], Elson, J which canvassed in some detail the fact-weighing process and the law in a case of sexual assault, though the circumstances and issues ofcredibility were entirely different from this case.

Knox-Moffatt cited the major cases to be considered in this process, particularly, R vLifchus, (SCC), [1997] 3 SCR 320 [Lifchus], R v W. (D.), (SCC), [1991] 1 SCR 742 [W. (D.)] and R vNyznik, 2017 ONSC 4392, 350 CCC (3d) 335. [34] In particular in Knox-Moffatt, Elson, J. included the well-known passage from W. (

D) and also a quotation from another case, R v S. (W.D.), (SCC), [1994] 3 SCR 521 [S. (W.D.)], which commented upon W.(D.). The quotations from those cases are taken from the judgment of Elson, J and are as follows: R v W.(D.) — [47] In the context of a judge alone trial, the direction requires me to instruct myself as follows: a. First, if I believe the exculpatory evidence of the accused, obviously I must acquit; b. Second, if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit; and c.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (Elson, J.) [48] In considering the W.(D.) direction, judges must be mindful of the comments that Cory J. made of the judgment in R v S. (W.D.), (SCC), [1994] 3 SCR 521 [S. (W.D.)], a few years after he first articulated the direction. In S. (W.D.), Cory J. warnedtrial judges not to rank form over substance in the consideration of the W.(D.) direction.

In this respect, he said the following at para. 24: [24] Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that theessence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence.To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select oneversion in preference to the other and yet on the whole of the evidence be left with a reasonable doubt.

The effect of putting such aposition to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accusedcould not be acquitted unless the defence evidence was believed. [35] The court in Knox-Moffatt also cited the case of Lifchus at para 39: [39] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is basedon reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[ 36 ] These statements of law are well accepted and the principles involved had been of long standing in Anglo-Canadian law when the above judgments were written for clarification. The defence argues that the evidence of the Accused should be accepted fully because the Complainant has fabricated the allegation of sexual assault entirely. The motive articulated for that proposition by the defence is summarized simply in this way. The Complainant was unhappy with her home situation and she was totally committed to the relationship with her boyfriend which had greatly improved her life.

That relationship had been broken off by him a few days before the alleged incident which left the Complainant in a very distraught emotional state. She was wishing to reinstate the relationship. Her attachment to him was so great that any means to achieve it might be considered and carried out. The means by which that was done was the sexual assault allegation put forward in this case. This gave her the pretext for contacting the boyfriend in a situation that would attract his concern and sympathy and possibly recommence the relation.

The defence made extensive reference to the evidence that supported these propositions which included the fact that the reinstatement of the relationship had occurred within the context of the sexual assault complaint. CROWN ARGUMENTS [ 37 ] The Crown did not dispute the law applicable in this case. The Crown argued on the facts as strongly as the Defence in taking a contrary position to the Defence theory. The Crown emphasized that the defence theory was without logic given the positive relationship between the father and daughter.

Further, the Crown argued that the defence position reflected improper applications of ‘myths’ relating to sexual assault that includes absurd jealousy as motivation for fabrication. In arguing their case, the Crown clearly proceeded on the basis that the case came down to a question of credibility and issues of fact. DISCUSSION AND CONCLUSIONS [ 38 ] The defence did not assert that jealousy was a motive for fabrication here.

The defence position was that there was in fact a confused emotional state with the Complainant and she was motivated to make up a compelling personal crisis as the means to contact and reengage with her boyfriend. In support of that proposition the following is cited by the defence from the evidence: a. The extent of the Complainant’s commitment and devotion to her boyfriend was made clear from the evidence she gave in cross- examination. b. She wrote about her situation of emotional upset and turmoil in Exhibit D-10. c.

She contacted her boyfriend first about the incident and it did indeed bring her back in contact with him and the relationship was reestablished from that point forward and continues to the present. d. It was not until her boyfriend’s mother told her that she had to go to a counsellor about the incident (who then advised her to take it to the police) that she went beyond sharing the incident with her boyfriend.

It is suggested in argument that those additional steps might not have been taken if it was not for the influence of the mother of her boyfriend whose approval had been required in order for her to move in with that family. [ 39 ] The Crown argues that such a motive is not credible or logical and points to the clear evidence given by the Complainant with respect to the assault. However, though the evidence was given well in the sense of being clearly articulated, there is one aspect of it that does not bolster credibility. This point has not been taken up by either the defence or the Crown.

The Complainant’s description of what actually happened went through some variation in her direct evidence. The assault was described originally as very brief, all interaction being over in ten or fifteen seconds but that was changed to five or ten minutes later in evidence. Further, the touching was originally described as occurring as the Accused sat on the bed, then it was described that he had taken a position on his hands and knees over her, and finally that he had lay down beside her.

The Complainant’s evidence was definite, however, in saying that the incident ended when she asked what was occurring and had turned on a light, at which point the Accused left. [ 40 ] Witnesses do at times add or forget details in their evidence when compared to statements and that was pointed out in some minor ways in this case. I do not find those variations with the statements to the police to be of significance. However, in the narrative in court of the alleged event there were some variations in direct evidence that appear to be large variations, in my opinion.

Witnesses cannot be expected to have perfect recall of all details of a troubling incident even if it is brief. The Complainant did indicate difficulty in describing the Accused’s position. These variations on significant details of the alleged assault in direct evidence are not decisive in the consideration of her evidence, but they are variations that an otherwise intelligent and articulate witness has made and do not add to credibility and might be considered consistent with the defence theory of fabrication.

[ 41 ] In addition, the actions of the Accused when his daughter’s whereabouts were unknown are consistent with a concerned parent who had no knowledge of events that could explain the behavior such as improper acts on his part. He also asserted he had no idea why he should not speak with his daughter as he was told in a text message, and that police were involved which prompted him to see the police himself.

I do not find that he went to the police to find out if he could prevent the daughter’s relationship with the boyfriend, but rather to determine if there was something that prevented his contact with her. [ 42 ] In weighing the evidence of the Complainant in her allegation of sexual assault, I am unable to fully accept it as reliable. I cannot, however, accept the Accused’s denial of the event as being unequivocally true either. I am left with the situation set out in paragraph 47(

b) in W. (D.) that is, there is potentially reasonable doubt raised by the defence evidence. That situation requires an assessment of the defence evidence to determine whether it is sufficiently credible to raise that reasonable doubt. It must meet the test enunciated in Lifchus as well as other leading cases on what constitutes sufficient evidence to do that. [ 43 ] The evidence here, in my opinion, is sufficient to raise a reasonable doubt. The defence theory has sufficient credibility to do that even if the evidence of A.M. is not fully and specifically accepted.

There are other considerations in raising a reasonable doubt about the Crown case. Significant evidence to raise reasonable doubt includes the evidence given by the Complainant including her answers concerning her very strong commitment to her boyfriend and the personal upset that occurred when they broke up a few days earlier, her re-establishment of that relationship, and the father’s actions following her leaving the house. These are all factors that add to the credibility of the defence, in my opinion.

It is the whole of the evidence and not one particular aspect that is decisive in raising a reasonable doubt. In making that conclusion, however, I must make it clear that I do not categorically reject the Complainant’s evidence or accept the Accused’s evidence. I dismiss the charges on the basis of reasonable doubt, as stated. The Crown case must be proven beyond reasonable doubt, based upon the whole of the evidence and I do not find that to be the case here. Dated at the City of Regina, this 21 st day of November, 2019. ___________________________________ B.D. Henning, J