R. v. Woudenberg, 2014 ONCJ 97

Information No. 131377 Citation: R. v. Woudenberg , 2014 ONCJ 97 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. BRENT WOUDENBERG ********** BEFORE THE HONOURABLE JUSTICE P.T. BISHOP Friday, January 31 st , 2014, at RED LAKE, Ontario ********** APPEARANCES: P. Willits Counsel for the Crown K. Seeley Counsel for Mr. Woudenberg MONDAY, JANUARY 19, 2013 THE COURT: I have listened carefully. I want to review the evidence. And with the consent of the defence I have amended it

to read that, that Brent Nathanial Woudenberg stands charged on or about the 29 th day of March 2013, Municipality of Red Lake did commit a sexual assault on M.M. contrary to

Section 271 of the Criminal Code. We’ve already issued a publication ban with respect to today. The first witness – and I have had a chance to review the evidence is M.M.. She has indicated that she is finished her school and hopes to graduate this year. And it happened on the 29 th day of March 2013, she was hitchhiking. It was close to 9 p.m. She was getting texts from friends about a possible party or something to go to in Balmertown, and she was near TJ’s, that is a gas station here in Red Lake at 8:45 p.m. She had been waiting half an hour and waited 15 minutes.

A vehicle went by her going in to town to TJ’s, turned around, came back towards her and picked her up. She described the vehicle and she identified the accused later on as the person and the driver of that vehicle. There were some inquiries made about where she was going. He said he had to go to a friend’s place for about 10 minutes but he would give her a ride after that. And she insisted that she could not be late. She got in the vehicle and they started driving. They went to a house. She had not been to that house before. And he asked her whether she wanted to stay in the car or come in.

She eventually went into the house with the accused. And when they got in the house he asked if she wanted a beer. She accepted a beer and went into the living room. They sat down on the

couch. He started up a conversation about random stuff, about where he had been to Alberta and other places. She told him she had to go to Balmertown. He asked why she was hitchhiking and it was not safe. He brought up about her schooling and how old she was. She told him that she was in grade 11 and that she was 17 years of age. He told her how nice she smelled and said, “You smell really nice” and he wanted to ask if they wanted to get together and go to a party. And then they went downstairs in the basement, played a dart game downstairs. There was some smoking down there. They started playing darts.

He asked if she wanted to try to play darts. They did not play darts very long. She only had a couple of throws. She asked to go upstairs. They walked upstairs and turned off the lights. She was standing at the main door. They then go back into the living room and he grabbed another beer. The case was on the counter and she started to have another beer. She became concerned about how he is going to drive me home if he has been drinking, and he told her that a friend would probably drive her home. She did not keep track of time. She said, yes to the second beer. They were sitting in the living room.

She was looking at her phone because she was texting. He asked if she wanted to have another smoke. She went to the bathroom. When she came out he mentioned beer again. He said he would take her to the party. She became scared because he was drinking and she did not want to get into the vehicle. I might add that the complainant was very hesitant. And I do not mean “hesitant” in any bad way. But she thought carefully about her words and is a young Aboriginal woman. She was going to leave. He got up and walked and held her hand. She got up from the couch and he blocked her way. He

grabbed her by the side, her face to his, he tried to put his tongue down her throat and at the same time slowing lifting up the tank top and her arms were locked. She had the phone. It was on speed dial. She wanted to call her mom or the police and she pulled herself away and took steps back and she also indicated that he took steps back. And he put out his arms were sticking out.” is what she said. She said I have to go already. He said tell your mom that you should stay a little longer.

She said, “No I don’t want to do that.” She ran down the stairs to the door, got her shoes, ran outside and she turned around and saw him standing at the door. She stopped running. She called her friend first and told her what happened. And she described the couch and how he grabbed her, she said his hands were on her head and her neck and she described which hand was where. She was asked by the court whether she wanted to be kissed and touched in this manner. She denied that she wanted him to do that. In cross-examination she basically repeated what was said.

And the relevant fact was as he put out his hand to offer her to get up. He grabbed.... Then put his hand on his hip and she let him do it, were his words, because if she refused he might go farther and she was afraid. And I do not take that as an admission of consent. It happened very quickly, within seconds, and that she indicated that she let him do it because she did not want to be assaulted any further in my words. But that is a paraphrase on the inference that she said. He said, “What’s going on?” Stepped back. And as soon as it happened she got up to go and did leave. Erin Gorrie was a police officer.

Contact was made with the accused. There was a voir dire. The accused came voluntarily -

I already ruled on that - to give a statement at the Ear Falls Detachment. When he was first giving a statement he did not admit to kissing, he did not admit to supplying beer because that would be an offence because he knew how young she was because she told him. So that would be an offence under the Liquor Licence Act, supplying alcohol to a minor. Basically when the police officer said, “Well I know more than what you’re telling me” because the police officer had interviewed the complainant and that is when it came time for him to “fess up” or to at least tell another version of event.

I am finding that he lied to the police officer on the first time to avoid responsibility. He then goes and gives a more complete statement and he, in the voir dire, he said he got up to kiss her, it was stupid of me. She left. I realized what was going on, what I was doing and she was a teenager. So he knew that she was a minor when he engaged in this activity and he helped to lift her up and she ran pretty quickly.

And he admitted that his, he said that his right hand was on, hands were on her hip and her hands were on his hips and there was obviously, he said, a little bit of tongue action and he did not force anything on her. Her hands were just on his waist. So I have already ruled that that statement was admissible and voluntary because he wanted to clear things up. The officer also found out where the house was, 1 Pine Street. She did not go into the house but the complainant had described it, there was some particularity. Brent Woudenberg gave evidence in his own defence. He was up in the Red Lake area.

It happened on the 29 th day of March. There is no dispute about that. He was visiting, trying to find work. He is heavy operator equipment and he works on the Alberta oil rigs but he likes the Red Lake area and he went

to see if his friend was there. He had to get something at the liquor store before it closed. He was going back to his house to pick up things, his own belongings and he picked up M.M.. He asked her if she wanted to come inside because he went to his house to pick up his belongings – actually it was his friend’s house. And she decided to come inside. He gave her a beer. They talked.... He thought it was a Busch beer. She accepted, in his words, “with no hesitation”. He described that they were downstairs. She wasn’t very interested in darts. He also talked about coming back up to the living room.

They were sitting in the living room. They tried to play a game of cricket but she was not very interested in that as well. He asked what she wanted, sat down. Asked if she wanted another beer. He grabbed another beer. In total he had two beers open and was consuming and she had the same. He said, in the body language, he said she really wanted to go. And that was before the kiss incident. And she had indicated before that she wanted to go because her mother had set a deadline.

And he indicated that at that time he went to help her up with his right hand, the right hand they were kissing he said they were, his both hands were on the hips. He did not touch her head or neck and he started kissing her. It was mutual. He says five to six seconds and they both broke it off. After the kiss he said she wanted to leave because her body language. He was not interested anymore and obviously she was not interested anymore and he went to get his bag to pickup his belongings and, in his words, she bolted.

When he came to give a statement to the police officer, he was feeling out the officer because she was not giving out information as she was trained to do, in his words, and in his words the Officer Gorrie went from Mrs. Nice to Look The Hell Out look. He felt he was intimidated at that particular time.

Incidentally the clerk listened to the DRD and told me what those words were. It is part of the record. In cross-examination the accused got tied up with respect to when the body language showed she wanted to go. It was clear from the court she wanted to go at an early stage. Her evidence was that she was becoming more concerned because he was getting drunk and was still going to drive her back to Balmertown. In his evidence he relied upon, she never told me that she wanted to leave but his evidence was that her body language was consistent for a long time that she wanted to leave.

In looking at all of the evidence everything is pretty well agreed upon between the complainant and the accused with the exception of the kiss. So having heard all of the evidence I am finding that the Crown has proven the case beyond a reasonable doubt for the following reasons: I accept the evidence of the accused how he came into contact and what happened in the house prior to the sexual encounter. I do not believe the accused’s evidence with respect to the sexual interaction for the following reasons: 1) He made a deliberate attempt to pick up a lone female hitchhiking.

He did a U-turn at TJ’s prior to going back to get her. That is M.M.. I reject that he always picks up hitchhikers. The inference is he was looking for a female to interact with that particular night and she happened to be a young minor. He was willfully blind with respect to the age of the complainant. She

told him and he said in his evidence that she was in grade 11 and was 17. He’s 32. There’s a huge age difference between them, and he should have known better. He also supplied alcohol to a minor. She was 17, he was 32. The inference is that he was going to give her alcohol to get her intoxicated so he could take advantage of her and have whatever he was going to do with her. That is the inference when adults supply liquor to minors. That is what happened. He kissed, tongue down her throat, after the body language indicated that she wanted to leave. The complainant also bolted.

Her words were in evidence, “I let it happened because I was afraid more would happen.” In those words do not connote consent. She is a school girl. She is shy. She gave her evidence in a very clear way. He is an adult. He is a heavy equipment operator, oil rig worker and he should have known better. I accept the complainant’s evidence on how it happened. She bolted immediately. She called a friend. Eventually she told the police.

And the evidence of taking advantage by an older sexually man and that she told the police and after went to the friendship centre and they called the police and she gave her statement very quickly after this had happened. I am finding as a fact that the kiss was not consensual. I am finding, however, that the lifting of her tank top was equally consistent with the way that the complainant describes how they were embracing and that the tank top, in all likelihood, lifted at the time that he was performing the kiss on her. Also the accused lied to the police. He was trying to feel out the Officer Gorrie.

He had only confessed partly but when the officer said “I know more than what you’re telling me.” He tells

a little bit more and admits that he was supplying alcohol to her and that the kiss was all but innocent and that was reciprocated by the youth, the young woman. I reject that. In cross-examination he was caught in that, in some inconsistencies in that he knew that she wanted to leave before the kiss happened. And then he said he knew that she wanted to leave after the kiss happened. It is clear that he knew that that young person did not want to be there. I reject that he is telling the truth here because of his religious commitments. He simply states, “The truth will set you free.

He does not want to face the responsibility of what he did. I am finding also that the complainant rather was a very young, credible Aboriginal woman. She was not seriously compromised in cross-examination with respect to the essential elements of this offence. She explained her fear. And once she could get out of that situation left it as quickly as she could. There was no delay in telling a friend. And it was reported to the police after reporting to the Indian Friendship Centre and investigation follows. So for all of those reasons, I am finding that the Crown has proven its case beyond a reasonable doubt.

I have analyzed it on the W.D. basis. I do not believe what the accused says with respect to the circumstances surrounding the kiss but I accept what he says on how it came to be that he was in the company of the accused. And the only difference is how did this kiss happen? I mean was it a consensual matter? And I have explained what facts I accepted the evidence of the accused. There is not much difference between that and the complainant. But on all of the evidence, that I have already stated, I find that the Crown has

proven this was a sexual assault and proven it beyond a reasonable doubt, the third test. ********** PHOTOSTAT COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF LORI D. SUMMERS.

Transcript Ordered: .......February 3, 2013...... Transcript Completed: ......February 26, 2014..... Ordering Party Notified: ...February 26, 2014..... FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Lori Summers, certify that this document is a true and accurate transcript of the recording of R. v. B. Woudenberg in the OCJ COURT held at RED LAKE, Ontario taken from Recording No. 1511-RLCR1-20140131-085944-6-BISHOPP. A which has been certified on Form 1. February 26, 2014 .................................... Lori Summers