Her Majesty the Queen - v. -, 2011 SKPC 55

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 055 Date: April 13, 2011 Information: Y38464 Location: Rose Valley _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.B.

Appearing: Lori O’Connor For the Crown Barry Treacy 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 J.A. PLEMEL , J _____________________________________________________________________________

[ 1 ] J.B. is charged as a young person within the meaning of the Youth Criminal Justice Act with three counts all arising out of the same incident at Yellow Quill First Nation, Saskatchewan on October 26, 2009. The counts may be summarised as follows: 1) That he sexually assaulted W.N. contrary to section 271(1) of the Criminal Code . 2) That he knowingly uttered threats to W.N. to cause death or bodily harm to her contrary to

section 264.1(1) (

a) of the Criminal Code . 3) That he did, in committing an assault on W.N. cause bodily harm to her contrary to

section 267 (

b) of the Criminal Code . [ 2 ] Initials or first names will be used for the Crown witnesses throughout this judgment as use of their full names might in some way identify the complainant or the youth charged. [ 3 ] Witnesses for the Crown were E.F., W.N. (the victim), Janelle, Constable Hamm and T.. Only one witness, Marilyn Gilbert, testified for the Defence. Issue [ 4 ] There is ample and disturbing evidence that someone committed these offences on W.N. The only issue is whether or not J.B. is the guilty party. Facts [ 5 ] There was no evidence led as to the exact age of the victim.

However, I note she is a young woman who was in high school at the time she testified in June 2009. She and two of her young female friends, W.U. and T., a 15 year old at the time of her testimony, decided to get together to drink alcohol. They caught a ride from Rose Valley to Yellow Quill First Nation with the accused and his male companions, K.B., C.B., someone described as the father of one or more of these young men and an individual named Lucas. They were drinking along the way and once they arrived at a residence in Yellow Quill, they continued to drink. At some point in the evening the victim passed out.

She remembers leaving the residence and speaking to K.B., C.B. and W.U. outside. The next thing she remembers is waking up in the Kelvington hospital with injuries. She described her injuries as being a chipped tooth which was almost gone; bumps all over her head; her head was throbbing; and her head, back and arms were sore. Other than her chipped tooth, the soreness and bumps were gone in four to five days. [ 6 ] I am satisfied that before passing out she had gone back into the residence and into a bedroom. T. stated she was also in the bedroom where they were listening to music.

T. left the room to spend time with W.U. When she left, the victim was passed out on the bed. She testified that J.B. and one other male were in the bedroom when she left. She did not know the name of the other male. I mention at this point that in Court, T. was unable to identify the accused as the person she thought to be J.B. I will discuss the significance of this later. After about 15 or 20 minutes she returned to the bedroom to check on the victim and at that time she testified J.B. was on top of her trying to unbuckle her pants. He told her to get out of there because he was busy and she left the room.

He was touching her private parts over her clothes. She believed that J.B. had his clothes on at this time. She tried to grab the victim to get her out of there but she was unsuccessful as she was passed out. She went to a neighbour’s to phone for help. T. called an adult woman named E.F. who was in Rose Valley to report that the victim needed help. E.F. is a woman who does foster parenting in the area. When she got the call, a woman named Janelle was visiting E.F.

As a result of the call, E.F. and Janelle drove out from Rose Valley to Yellow Quill, arriving about 20 to 25 minutes later. [ 7 ] Janelle testified that when they arrived, one of the victim’s little friends was panicking because the victim was inside the house. I believe this “little friend” to be either T. or W.U. although the evidence is not entirely clear. Out of concern for the victim Janelle entered the residence while E.F. waited outside in the car. She knocked on the door and one of the males answered it. On the whole of the evidence it appears it was C.B. who answered the door.

She asked for W.N. but C.B. said she was not in the house. Not believing him, she forced her way in and went to the bedroom. In her testimony, she described what she saw. [ 8 ] She testified that she turned the light on and saw a male who she said was J.B. having sex with W.N. He had no clothes on.

W.N. just had her top on. She did not know J.B. and knew his name only because one of the other girls told her it was him. She stated, “...I opened the light and he told me to ‘shut the fucking light off’, and I told him, ‘no, I got to get this girl and bring her out’. And he told me, ‘just wait. I’m not done yet’. And I told him, ‘yes, you are. Get off her’. And he didn’t listen and he told me shut up - he kept repeating himself, ‘shut that f-ing light off. I’m not done yet’, and I grabbed him on the back of his leg, this leg it was, on the right side, and I pulled him off.

I pushed him off of her and he’s like, ‘I’m not done yet. Get out of here’, he kept saying.” Later she continued stating, “The second time I pulled him off, I pulled her up real quick. I sat her up and then she fell over to the left I guess it is. And he started kicking her in the head and started telling her, ‘get the fuck out of here, you bitch’. And he wouldn’t stop kicking her.” She described how he threatened to kill W.N. and while he continued to assault her, Janelle ran out to get the help of E.F. who was waiting in the car.

She pointed the accused out in Court as being the assailant. [ 9 ] E.F. was initially reluctant to go into the house but changed her mind and went in. At one point she testified that the first thing that happened when she entered the house was that Janelle told her “J.B. had raped W.N. and that she had pulled - like she told me, she said, I pulled him off her, and he was the one who came out of the bedroom. I said, who is he, where is he. And she said, right there. He didn’t deny being J.B.” E.F. testified that she knew J.B. previously.

However, how well she knew J.B. is very relevant and is something which I will discuss further. Before I do so, I will repeat the harrowing scene in E.F.’s own words starting at the point when Janelle went to get her from the car: She (Janelle) said, I need you in here right now because they’ve raped this girl. And she said, I need your help. So I finally got out. I went into the house. W.N. was laying in the hallway. She had on her shirt. She had no clothes on below the waist and T. and Janelle were trying to get her pants on her.

So I told the girls - I said, just stand her up, hold her up, and I was going to try and put her pants on. And she was so I think unconscious is what she was because she was just - she wasn’t responding in any way at all to, you know, to let us know that she was - that she knew we were there. We were standing I believe it was in the living room once they got her up off the floor in the hallway and trying to get her pants on her, and J.B. came out and he started saying things like, “smash her fucking head in”.

And all of a sudden he - as she was standing there and we were trying to put her pants on her, he just took her and he shoved her and there was a corner there. Now, I don’t know if there was - there was some kind of cans there in the corner and there was a table. And he shoved her into that, and I know she hit her head fairly hard. So I was really concerned at that point about her head. And he kept saying, using words like, “smash her fucking head in, bash her head in, kill her, bottle her”, words like that. Like that’s what was being said. And there were two people - there were two sofas.

I believe, in that room and one person was on each sofa and I knew they were trying to wake - I believe J.B. was trying to wake one of them up saying, you know, “get up, we need your muscle in here”. So I was a little bit concerned about that. Like what do you need muscle for. We did finally get W.N.’s pants on her. We went through the living room, into the kitchen out the door and continuously it was the, you know, the pushing and the shoving and J.B. making statements to kill W.N. And we were standing on the stairs and there was myself and T. that were holding W.N. up.

I believe that C.B. and Lucas and J.B. were standing in the doorway. I don’t know who pushed us, but someone pushed us. We ended up, of course, trying to hold W.N. up. All her weight went down. I came down on top of her and T. came down on top of me. So we’re lying in the mud down there and we did end up getting up. We got her into the car, and once she was in the car we - I just put the car in reverse because all of a sudden J.B. was at the door and he was throwing bottles at my car. My window was open on the driver’s side and it was a - the bottle came right - like it hit the side of the car.

And when I looked at it later, of course, it had all this damage to it. But damage to my hood and everything because there were bottles flying at us. So at that point I just put the car in reverse and started backing up because I didn’t know what was going to happen next. [ 10 ] Janelle’s description of her return to the house to rescue W.N. and their final escape was similar to E.F.’s. It should be noted that initially she testified that when she re-entered the house with E.F., males grabbed W.N. and kept saying “bottle her, kick her in the head, kill her”.

She testified that the males were “J.B. and the other two guys”. However, in cross-examination, she agreed that only one person made these comments. [ 11 ] The women made good their escape and drove W.N. directly to the hospital in Kelvington. While en route they called 911 and, as a result, RCMP were waiting at the hospital when they arrived. The victim was examined by a medical doctor and a sexual assault kit was used to take and preserve vaginal swabs which were subsequently sent for forensic testing in an RCMP forensic laboratory. A forensic report was prepared and has been admitted into evidence.

A DNA analysis found no DNA from J.B. However, DNA from semen found on one of the vaginal swabs was matched to Lucas, whose DNA was in the National DNA Data Bank. The Issue of Identification [ 12 ] There is no question that Janelle, E.F. and T. very courageously rescued the victim from the residence. The question is whether they correctly identified the assailant. There are frailties in their identification.

T.’s Identification Evidence [ 13 ] T. testified that she did not know any of the males when they first got picked up and driven out to Yellow Quill. She said she came to know their names during the course of the evening. I am not satisfied that she got their names straight. She testified that it was W.U. who knew the males best. The evidence is that W.U. was a foster daughter of E.F. and that W.U. had dated the accused sometime in the past. I am satisfied that she believed the assailant’s name was J.B. It is important to note that she was not able to identify J.B. in the courtroom.

Police took a photograph of J.B. for identification purposes the day after the incident. The photograph is Exhibit P-2 in this trial. Having observed him in Court, I can say that he does not appear to have altered his appearance from the time the photograph was taken to the time T. testified. [ 14 ] Not only could T. not identify the accused in Court but her description of the assailant does not closely match that of J.B. She said the assailant was “an older guy” in his 20s. She described him as having a buzz cut and being kind of chunky. [ 15 ] J.B. was a youth at the time of the incident.

He did not testify, however his date of birth as shown on the information would indicate that he was between 17 and 18 at the time. He was not in his 20s as described by T. although it might be argued that he appears older than his age. In his photograph, and during the trial J.B. had relatively short hair but not what I would describe as a buzz cut. The photograph does depict a stocky young man and that is consistent with my observations of him in Court.

It is consistent with T.’s description of the assailant being “chunky”. [ 16 ] It is interesting to note that the forensic report which I have referred to, has Lucas’ date of birth as being April 1987. This would make him about 22.5 years of age at the time of the incident. [ 17 ] T. had no direct conversation that night with the person she understood to be J.B. It is apparent that she heard the names of several of the males who drove them out to Yellow Quill. The names she remembered were K.B., J.B. and Lucas. She did not remember C.B., who I find was also there.

I am not convinced that she really knew who was who as far as the males were concerned. Janelle’s Identification Evidence [ 18 ] Janelle testified that she did not know the accused or the victim prior to that night. Furthermore, prior to testifying she had not seen the accused since the night in question. At the time of her testimony she did not remember the names of the other two girls the victim was with. It is apparent that she did not know these people well. This is important to note since she is the one who told E.F. that it was J.B. who was having sex with “that girl”.

When asked how she knew it was J.B. she responded “because one of the girls told me it was him”. Later she testified that the person who told her it was J.B. was E.F.’s foster daughter and that this person told her it was J.B. just before she entered the house that night where the assault took place. Janelle pointed the accused out in Court as being J.B. [ 19 ] It is unclear from the evidence if it was T. or W.U. who told Janelle the assailant’s name was J.B. W.U. did not testify. There is evidence that T. was in the bedroom and saw someone having sex with the victim. There is no evidence that W.U. also saw this.

Janelle went into the residence honestly believing the name of the assailant was J.B. [ 20 ] At one point, when being cross-examined on a statement she gave to police, Janelle testified that someone had told her this person was from Regina. I understand she was referring to the assailant when she gave this answer. She wasn’t sure who told her that. It is my understanding that the accused was from Yellow Quill. Lucas was from Regina. [ 21 ] Janelle testified that the assailant had no clothes on when she pulled him off the victim. The victim only had on her top.

By the time he came out of the bedroom, this male had his pants on but he was bare on top. This is important, when one considers the evidence of E.F. who describes J.B. as wearing a blue top at that point with the word “Caroline” or a similar word on it when she came into the house to assist Janelle. I will discuss the importance of this further when I deal with E.F.’s testimony. [ 22 ] Janelle described all the other males as wearing blue jeans and black shirts. There is no real consistency among the Crown

witnesses as to what each of the males was wearing. E.F.’s Identification Evidence [ 23 ] E.F. testified that she had not seen J.B. between the night of the sexual assault and the date of her testimony on June 16, 2010. She knew him prior to that through one of her foster children, W.U. W.U. dated him in about 2007. She described meeting him drunk at her door one cold night in November 2007 and that she permitted him to stay overnight as she was concerned for his well-being due to the cold temperature.

She believes he came to her home on other occasions but after cross-examination I am uncertain if she was there on other occasions when he was. She testified that she would see him elsewhere from time to time at school or in town. At one point she was asked if she had ever had a visit with him where she sat down and talked with him and she indicated she never had any reason to.

She agreed as well that her previous contact with him had been “fairly momentary or fleeting”. [ 24 ] In the residence on the night of the sexual assault, E.F. testified that she got very close to the male who came out of the bedroom, who she identified as J.B. In cross-examination she testified “I actually took a really good look that night because I thought there may be a possibility that I’m asked what was he wearing, and he had very short hair, like the sides were very, very short but it was longer on the top. And he was wearing some type of jersey that said Caroline or something on it.

It was a blue jersey.” [ 25 ] As I mentioned earlier, E.F. testified that on the night of the sexual assault the first thing that happened when she went into the house was that Janelle told her “J.B. had raped W.N. and that she had pulled - like she told me, she said, I pulled him off her, and he was the one who came out of the bedroom. I said, who is he, where is he. And she said, right there. He didn’t deny being J.B.” This answer suggests to me that she did not know J.B. well.

Furthermore, as previously mentioned, Janelle was referring to a male with no shirt on when she described the assailant who came from the bedroom. E.F. said at that point J.B. had a blue jersey with writing on. They both pointed the same individual out in Court. They cannot both be right. [ 26 ] This trial began on June 16, 2010, but was then adjourned a number of times over several months for reasons which I need not get into. On February 16, 2011, the accused called one witness, Marilyn Gilbert. She knows the Crown witness, E.F. She also knows of J.B.

She testified that on the day E.F. testified in Court, E.F. asked her if she knew J.B. Ms. Gilbert testified that there were three young men sitting in the back of the courtroom and she advised E.F. that the accused was one of those three but she was not sure which one he was. However, she heard and saw another person in the courtroom then point out J.B. to her. This of course raises concerns about the in-court identification of the accused by E.F. This is in addition to the frailties concerning identification which I have already referred to.

Evidence Suggesting Lucas Committed These Offences [ 27 ] The victim was asked whether she had prior sexual relations with any of the males present in the residence that night and there was no suggestion that she ever had consensual sexual relations with Lucas. However, his semen was present in her vagina and was found on the vaginal swabs which I previously referred to. [ 28 ] Although the victim does not know who assaulted her, she knows both the accused and Lucas. She described the accused as tall and fat. She described Lucas as tall, fat and built.

While I do not have a photograph of Lucas, I note the similarity in the descriptions of both. [ 29 ] Lucas was 22.5 years of age. T. said she felt the assailant was in his 20s. This is more consistent with the age of Lucas than with that of J.B. [ 30 ] It is quite possible that Janelle and T. saw Lucas and not J.B. having sexual intercourse with the victim. This might explain why T. did not recognize J.B. as the assailant in the courtroom which was not crowded on the day she testified. Crown Theory

[ 31 ] The Crown argues that Lucas and J.B. both sexually assaulted the victim. T. testified that J.B. and one other male were in the bedroom when she left the first time after listening to music. She did not know who the second person was. When she went back 15 or 20 minutes later she says it was J.B. on top of the victim trying to loosen her belt. I have already referred to the frailties of her identification evidence. T. testified that it was the same male still on her when Janelle pulled him off the third time she entered the bedroom.

There was no mention made of a second male the second and third time T. went into the bedroom. There is only evidence of one person having sexually assaulted the victim on the night in question. I am not satisfied that this person was J.B. [ 32 ] There was some evidence, although it was inconsistent, that more than one male threatened the victim and assaulted her once she was pulled from the bedroom. I am not satisfied that J.B. was one of those males or that he was a party to any of these offences.

Conclusion [ 33 ] Although I commend the three women who testified for placing themselves in harm’s way to rescue W.N. from this situation, I find that there are serious frailties in their evidence as it relates to the identity of the accused both when examined separately and when taken together. Added to this is the evidence that someone other than the accused may well have been the assailant. [ 34 ] For the reasons stated, I am not satisfied beyond a reasonable doubt that it was the accused, J.B. who sexually assaulted W.N. or that he threatened to cause her death or bodily harm.

Nor am I satisfied beyond a reasonable doubt that he committed any assault on her that night. [ 35 ] Therefore I find him not guilty of the charges and enter acquittals on all three counts. J.A. Plemel, J