Her Majesty the Queen - v. -, 2013 SKPC 78

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 078 Date: May 6, 2013 Information: 31732912 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - B.H.N. Appearing: Brian Hendrickson, Q.C.

For the Crown Estes Fonkalsrud For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ [ 1 ] B.H.N. is charged that on or about the 28 th day of September 2012, at or near Moose Jaw, Saskatchewan, did commit a

sexual assault on K.L., contrary to s. 271 of the Criminal Code. [2] The defence made an application which was heard prior to the trial commencing pursuant to s. 276.1 of the Criminal Codefor permission to cross-examine the complainant about her previous sexual history with the accused. The application was allowed andmy decision was given and provided to counsel April 30, 2013. It can be found at 2013 SKPC 71 , 2013 SKPC 071. The trialcontinued on May 1, 2013. [3] The complainant K.L. testified and adopted her video recorded statement given to the police in accordance with s. 715.1 ofthe Criminal Code.

The complainant’s mother also testified with respect to the observations of her daughter when she returned homeafter spending the weekend with her dad. [4] The defence did not call any evidence. CROWN POSITION [5] The Crown argued it has proved the essential elements of the charge beyond a reasonable doubt. The Crown stated thecomplainant gave a clear account of what happened on September 28, 2012. She clearly described a sexual assault by the accused. TheCrown noted there was no evidence to suggest consent or honest but mistaken belief in consent. She said “no” several times. Shestruggled and screamed.

She gave in as she thought it would soon be over. The defence did not cross-examine the complainant pursuantto s. 276.1. The Crown submits the complainant was not shaken in cross-examination in any material way and therefore submits on thetotality of the evidence that the Court should find the accused guilty as charged. DEFENCE POSITION [6] The defence advised that the defence of consent and honest but mistaken belief in consent would not be argued. The defencetakes the position that the Crown has not proved beyond a reasonable doubt the offence of sexual assault.

The defence suggested thatwhen the Court considers all of the evidence, the totality of the evidence, the Court should have a reasonable doubt. The defence asksthe Court to look at some of the inconsistencies in the complainant’s evidence. ISSUE [7] Is the evidence of the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of theoffence. In R. v. J.H.S., 2008 SCC 30 , 2008 S.C.C. 30, at paragraph 6, the Court put it another way and stated: The real issue in this case is whether the alleged events ever took place.

It is for the Crown counsel to prove beyond a reasonable doubtthat the events alleged in fact occurred. It is not for [the accused] to prove that these events never happened. If you have a reasonabledoubt whether the events alleged ever took place, you must find him not guilty. ANALYSIS [8] R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, clearly sets out the requirements for a conviction for sexualassault.

At paragraphs 23 and 24, the Court stated: A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to

touch knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

(1) Actus Reus The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C. 1985, c. C-46. The offence is comprised of an assaultwithin any one of the

definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexualintegrity of the victim is violated: See R. v. S.(P.L.), (SCC), [1991] 1 S.C.R.

Section 265 provides that: 265(1) A person commits an assault when (

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

b) he attempts or threatens, by

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

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

(2) This sections applies to all forms of assault including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. [9] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court described the importance and concept ofthe Crown’s obligation to prove the case beyond a reasonable doubt. After much discussion and references to other sources, the Court inLifchus provided a

summary of how to explain this concept of reasonable doubt (to a jury) which is of fundamental importance to ourcriminal justice system. At paragraph 36, the Court states: Perhaps a brief

summary of what the definition should and should not contain may be helpful.

It should be explained that: • the standard of proof beyond a reasonable doubt is extricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty - a jury which concludes only that the accused is probably guilty mustacquit. [10] In R. v.

L.T., 2005 SKPC 8, Judge Matsalla notes the factors to consider when assessing credibility. At paragraph 28 hestates: Prowse, in Working Manual of Criminal Law, Carswell at 125, concisely sets out factors that the Supreme Court suggests can beconsidered in determining the credibility of a witness. The factors include the following,

(1) Generally (

a) Whether the witness is honestly endeavouring to tell the truth; (

b) Whether the witness is sincere and frank; and (

c) Whether the witness is biased, reticent and evasive.

(2) Specifically (

a) The witness’s general integrity and intelligence; (

b) The witness’s powers to observe; (

c) The witness’s capacity to remember;

(

d) The witness’s accuracy in statement; and (

e) The relationship that the witness had with the accused. [ 11 ] This case requires that I make findings of credibility with respect to the witnesses who testified. Again, the Crown must prove that the evidence is credible and there is no burden on the accused in that respect. Even if the Court only hears from Crown witnesses as in the within case, the Court must still consider whether on the whole of the evidence the Court is left with a reasonable doubt. [ 12 ] The mother of the complainant testified she grounded her daughter indefinitely about September 23, 2012.

She heard that her daughter was hanging out with B.H.N. On the weekend of September 28, the mother drove her daughter to her father’s house for weekend access. The father was made aware and agreed to enforce the grounding. On Sunday, September 30, the mother picked up her daughter about 2:00 p.m. She observed that her daughter was not her normal bubbly self. The complainant was very quiet and stayed in her room most of the day. The next day K.L. called her mother at work. She was crying and upset. The mother told her to go home. When the mother returned home, K.L. told her what had occurred.

After consulting a friend, the mother took her daughter to the hospital and then to the police station. [ 13 ] K.L., the complainant, was 15 years old at the time. She testified as to the events of September 28, 2012 and adopted her video recorded statement that had been made late in the afternoon on October 1. The complainant described an incident early in September when the accused asked her when he drove her home if he could kiss her. She said no. He held her down in the front seat of his vehicle and tried to lift up her shirt. She managed to leave.

Later the accused apologized and she was willing to be friends again. She then related what had occurred on September 28. The complainant had persuaded her dad, despite the grounding, to allow her to go out for a few minutes with the accused. They were going to go to McDonald’s for a drink. The accused picked her up at a school close by. They went to McDonald’s and on the way home, the accused started to drive a different way. The complainant asked where they were going and the accused said they were taking a different route. The accused drove her to a secluded area in the former wild animal park.

The accused told her to get out of the car and then forced himself on her in the back seat of the vehicle. He took her tank tops and shorts off and put his penis in her vagina. She does not think he ejaculated. She testified she struggled and repeatedly said “no”. Finally she gave in as no one would hear her and she thought it would soon be over. K.L. was cross-examined by defence counsel and reaffirmed her sequence of events. The defence suggests that the complainant’s “story” is just not believable and should therefore at the very least raise a reasonable doubt.

The defence points to the following to support this proposition: - The complainant contradicted herself as to whether she was in the front or back seat on the way home after the alleged assault. - Why would the complainant go out with the accused after the incident when the accused was aggressive, pinned her down and tried to pull up her shirt and kiss her? - Why would the complainant get picked up and dropped off at Sacred Heart School as opposed to her father’s home? - Why would the complainant go out with the accused when he was the cause of her being grounded? - How could this assault take place in the back seat of this two door vehicle? - The complainant had no physical injuries. - The complainant did not complain to her dad. - The only evidence of the sexual assault comes from the complainant herself. [ 14 ] There is no such thing as the perfect description of an event.

There are often some questions not answered or some inconsistencies. The question is are these material to the proof of the Crown’s case? Do they raise a reasonable doubt? When I consider the totality of the evidence, the whole picture, it is my view that these inconsistencies or deficiencies argued by the defence are not material. The complainant and accused are teenagers. The complainant was interested in hanging out with the accused at the beginning of the school year. The accused apologized to her regarding the previous “kissing incident”. She accepted the apology.

In the context of this case, I view the apology as part of the manipulation by the accused to get the complainant to go out with him again. The complainant knew she was grounded but persuaded her dad to allow her to go out for 15 minutes. She was picked up nearby. She was gone longer, more like an hour. I do not find this unusual as teenagers will push the limits and she no doubt knew that her dad would not let her go out for long. He had agreed to enforce the grounding.

Nor is it unusual for a teenager to suggest that an unwelcome friend of the opposite sex pick her up nearby rather than directly under the parent’s scrutiny. After all the dad might have changed his mind. In cross-examination defence counsel asked the complainant again what happened in the back seat of the car. She repeated that the accused opened the back door, forced her to get in and closed the door. She had thought that he was probably going to just drive off and leave her

there. He moved the seat forward, she banged the back of her head as she was being forced into the car, she described again the accused getting on top of her, removing her tank top, shorts and underwear. The accused forced her legs apart. The accused had an erection and forced himself inside her. This is the same as her evidence in-chief. The claimant’s evidence is consistent. At no time does she indicate any form of consent or willingness to engage in this activity. She struggles, she yells, she says “no”, it hurts and stop.

Defence counsel suggested the back seat of this two door car would be too cramped for this to take place as described by the complainant. However, he did not pursue this to any extent and it would be speculation to adopt this view. I find it very troubling and telling that the accused took the complainant to a secluded spot after they had gone to McDonald’s which had not been part of the arrangement. When she asked the accused where they were going, he said it was a different way back to her dad’s.

This action by the accused indicates to me that he had planned to get the complainant alone and either convince her or more likely, given they were going to a very secluded area, force her to have sex with him. It is noted the accused told her not to tell anyone. As well, the accused had asked her three times previously to have sex and she had said “no”. In my view the accused was manipulating the complainant and was not prepared to take no for an answer. [ 15 ] Finally I do not find it unusual that she did not tell her dad when she returned. Can you imagine the scene? She would be in trouble.

Her dad would be in trouble with his ex-wife. In addition, it is not unusual for girls to confide in their mothers, not fathers. The parents were separated. I cannot accept any suggestion that the complainant had a motive to make up this story to get the accused in trouble and put her in a better light. In many ways it would have been better for the complainant to tell no one. The complainant was asked on more than one occasion at trial if what she said was truthful. She said it was and that she “said what had to be said”. In R. v.

C. (K.K.) , 2004 CarswellNfld 179 , the Court had this to say about credibility: In R. v. B.(R.W.) , 1993 B.C.J. No. 758 (C.A.) , referred to in Neary at paragraph 28, the Court commented on cases in which a complainant’s testimony is central to a determination. Where as here the case for the Crown is wholly dependent upon the testimony of the complainant it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all the other evidence presented. [ 16 ] I accept the complainant’s evidence. She has given a largely consistent account of the assault.

She described in sufficient detail an unwanted assault of a sexual nature. She gave her evidence in a quiet and forthright manner. She was not hysterical or overly emotional. She listened to the questions asked and responded. She was not flippant or hostile. I conclude she just gritted her teeth and was prepared to say what had to be said, as she put it. Therefore, I conclude the complainant’s evidence to be credible and reliable. The arguments put forward by the defence do not cause me or have not left me with any reasonable doubt about the guilt of the accused. In

summary when I consider the totality of the evidence, the whole picture, I am satisfied beyond a reasonable doubt that a sexual assault occurred September 28, 2012. The Crown has proven beyond a reasonable doubt the components of this sexual assault. In light of this, I conclude that the evidence is sufficient to prove the offence as charged under s. 271 of the Code and I find the accused guilty. M. Gordon, J