His Majesty the King - v. -, 2023 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 45 Date: June 22, 2023 Information: 90458325 Location: Montreal Lake _____________________________________________________________________________ Between: His Majesty the King - and - Cal Timothy Henderson Appearing: Robyn Ermine For the Crown Roman Iatsenko For the Accused Note:

Section 486.4 of the Criminal Code contains prohibitions against publication of a name or other information that would identify a victim or a witness in relation to an offence alleged under

Section 271 of the Code . TRIAL DECISION F.M. DAUNT, J [ 1 ] Cal Timothy Henderson stands charged that, on or about the 21 st day of October 2021, he committed a sexual assault on the complainant, G.R., contrary to

section 271 of the Criminal Code . The trial was held in Montreal Lake on May 18, 2023. I delivered my decision orally on June 22, 2022. This written decision provides more fulsome reasons. EVIDENCE [ 2 ] Counsel filed an Agreed Statement of Facts wherein the accused admitted jurisdiction, date and time, and identity. He also admitted that he and the complainant engaged in sexual activity. Further, for the purpose of cross-examination, he admitted his

statement to police was given voluntarily. Also filed by consent is a Forensic Report stating the penile swab taken from Mr. Henderson upon his arrest contains the complainant’s DNA. In addition, the Crown called three witnesses. Mr. Henderson testified in his own defence. 1. G.R. [ 3 ] On the date of the offence, the complainant was 23 years old and the accused was 27. The complainant knew the accused from a long time ago, but at the time of the incident she was best friends with his sister, Kylin. The complainant testified she was drinking with her girlfriend at the old subdivision in Montreal Lake.

Kylin invited G.R. to have drinks with her and her sister, Kya, at the house of their mother, Eleanor Henderson. Around 5 a.m., Kylin picked up G.R. at Marcie’s place. Kya and the accused, Cal Henderson, were also in the car. [ 4 ] When they arrived at the Henderson residence, they all went downstairs to Kylin’s room, where they drank, talked, and listened to music. The complainant talked mostly with Kylin and Kya. The accused started getting “grabby,” touching her butt and her waist in a sexual way. She told him to stop. He laughed. He did stop but continued to sit next to her.

She says her only other conversation with the accused was when he offered her a line of cocaine. She took the line. She had consumed cocaine before this occasion, to no ill effect. Although she had been drinking since she was 15 or 16 years old, she had never experienced a blackout. On this occasion, however, although she felt like she went straight to bed, she does not remember it. [ 5 ] The next thing she remembers is lying on her belly on a bed in another room. Mr. Henderson’s penis was in her vagina, and he was having sexual intercourse with her. She asked him to stop. He did not.

She screamed and tried to push him away. He did not stop until his sister came into the room. At this point, the complainant wore only a tank top. The accused’s sister brought the complainant to her room and found some clothes for her to wear. The accused’s mother, Eleanor, gave her a ride home, around 9 or 10 a.m. Shortly after that, the complainant attended to the clinic in Montreal Lake, and then to the hospital in Prince Albert.

She thought she had been drugged, because she struggled to stay awake for the rest of the day, dozing off even during the forensic examination. [ 6 ] In cross-examination, she was presented with screenshots of a conversation on Facebook Messenger between her and Mr. Henderson (Exhibit D-1). She believed they were texts between herself and Kylin, but acknowledged she wrote the messages associated with her Facebook profile. The messages concern when and where Kylin and Cal will pick her up. At 4:13 a.m. there was a six-minute audio call. At 4:55 a.m. there is another 30-second audio call.

The last message is from G.R. It says, “I’m waiting lol.” [ 7 ] The complainant explains she was talking to Kylin on the six-minute audio call. She considered the whole conversation to be with Kylin, through Cal. In one message, the accused says he is with Kylin. In another, he asks the complainant to message Kylin. In short, G.R. says that Kylin was her friend; Kylin invited her to drink with them; Kylin was coming to pick her up. The accused and Kya were just along for the ride. [ 8 ] The complainant admitted that she knew the accused from a few years before.

They were “just friends.” He was not married at that time, although he is married now. The night after the incident, Mr. Henderson’s wife sent G.R. a Facebook message. It said, “Hey, be honest with me, what the hell happened? I’m hearing all these damn rumours, and no ones really told me anything. I deserve to frickin know [ sic ].” G.R. replied, “I went to see Kylin because she ask me to and that’s my bff but anyways I woke up and he was doing that and I was screaming for help. See you could see that I didn’t want him whatso ever but that happened [ sic ].” 2.

Kya Halkett [ 9 ] The Crown also called Kya Halkett, Mr. Henderson’s sister. Unfortunately, in the time between her statement to police and her testimony, she developed amnesia. She remembered that she and Kylin started drinking around midnight. She did not recall what time the accused arrived from Prince Albert. She remembered going with Kylin to pick up the complainant. The accused was in the car, too. In cross-examination, she remembered the accused was driving the car. She remembered drinking Twisted Tea and straight shots of vodka. She remembered listening to music and dancing in Kylin’s room.

She remembered doing lines of cocaine. She remembered it was G.R. who got the cocaine. She remembered talking to the police but did not recall what she said to them. She did not recall her conversation with the Crown prosecutor the very morning of her testimony. 3. Constable Matteo Didonato [ 10 ] Constable Didonato is a police officer with the Royal Canadian Mounted Police. On October 21, 2021, he attended to Montreal Lake, where he found the complainant, alone, standing outside the clinic. He observed the complainant to be intoxicated and under the influence of some substance.

She was crying and emotionally distraught. He told her if she wanted a forensic examination for sexual assault, she would have to go to Prince Albert, because it was not available at the clinic in Montreal Lake. She chose to attend to

Prince Albert. Constable Didonato took a video statement from her, and the Victim Services worker transported her to Victoria Hospital in Prince Albert. [ 11 ] Constable Didonato and Constable Wood then attended to Eleanor Henderson’s residence, where the incident occurred. Ms. Henderson allowed him into the residence where they found the accused sleeping on a couch in the living room. He was intoxicated. Mr. Henderson was arrested and placed in the police vehicle while the officers took statements from the occupants of the house.

The accused was given his rights and warnings, then taken to the Montreal Lake detachment, where he was directed to take a penile swab from himself. Constable Didonato also video recorded an interview with the accused. [ 12 ] In cross-examination, Constable Didonato estimated Mr. Henderson’s level of intoxication as about 6 or 7 out of 10, “not black-out drunk, but not sober.” He estimated the complainant’s level of intoxication to be about 6 out of 10. 4. Cal Henderson [ 13 ] Mr. Henderson testified in his own defence. On the date in question, he was 27 years old and had been married for four years.

He lived in Prince Albert with his wife and children. He says that before his marriage, he went on a few dates with the complainant, although no sexual relationship developed. Before the incident, he says he was in a “thick cloud of addiction,” drinking and using cocaine. He and his wife were going through a rough patch. He said his wife had been unfaithful, this caused conflict between them. Due to his wife’s behaviour, police were called a number of times to their residence to respond to domestic disputes.

He says at the time, he was messaging G.R. off and on, being a “Casanova.” He would talk to her, then block her, then talk to her again, then block her again. He led her to believe his marriage was over. [ 14 ] Regarding the allegation from October 21, 2021, Mr. Henderson offered several different versions of events. Version 1: Statement to Police [ 15 ] Upon his arrest, Mr. Henderson told police that he, his sisters, his mother, and her boyfriend were the only people in the house. He then acknowledged that the complainant was there, but said she disappeared early from the party.

He continued to drink with his sisters, then went upstairs, had a smoke, and went to sleep. The next thing he remembered was the police waking him up. He did not have sex with the complainant. Version 2: Direct Examination [ 16 ] In direct examination, Mr. Henderson testified that he came to Montreal Lake to bring cocaine to his sisters. He and the complainant had been communicating off and on. He “had a plan in motion” to pick her up to drink with them. His sisters just came along for the ride.

He says the complainant was not with her friend, Marcy, but with a man named Byron, with whom she was in “some kind of relationship.” At the Henderson residence, the four drank in Kylin’s room in the basement. Mr. Henderson talked a lot with the complainant, about their prior relationship, about his troubles with his wife. He says he led her on, letting her think he had separated from his wife, although this was not true. He invited her to sit on the bed with him. He put his arm around her and she leaned up against his chest. She did not protest.

His mother came downstairs and yelled at him because his wife had called, angry because she needed her car. The complainant thus found out the accused had not split up with his wife. She became distant. After that, he says things get “fuzzy.” He started slipping in and out of a blackout. The next thing he remembers, in this version, is being arrested by the police. When asked if he remembers any sexual activity, he replied he didn’t know if it was “dreams, thoughts, that there was intercourse that took place.” Version 3: Cross-examination [ 17 ] On cross-examination, Mr.

Henderson’s memory became noticeably sharper. He gave more detail about his conversations with G.R. regarding their prior relationship, his relationship with his wife, and that he might have been “baby-trapped.” At one point, he went upstairs to drink with his mother’s boyfriend. The complainant came into the room and sat very close to him, “in my lap-ish.” They both returned to Kylin’s room and continued drinking. He wrestled with his sister Kylin.

He recalled “heavy flirtation” with the complainant. [ 18 ] In this version, they both left the party and went into the next room, where they sat on the bed and continued to talk. They started “heavy petting” and kissing. He helped the complainant take off her clothes. He took off his own clothes. He put his penis in her vagina, and they started having intercourse. She was not on her belly but on her back, in the “missionary position.” His sister came into the room and caught them, so they stopped out of embarrassment. The complainant did not try to push him away. He did not remember any screaming or struggling.

He says that would have woken up the whole household. His sister came into the room by

accident, not in response to any noise. [19] He says the third version is the truth. The first two versions were the result of nervousness, embarrassment, and distrust ofpolice and lawyers. LAW [20] The Crown bears the burden of proving each element of the offence beyond a reasonable doubt. The burden never shifts tothe accused. The Crown must prove that the accused intentionally applied force of an objectively sexual nature to the complainantwithout her consent, knowing or being reckless or wilfully blind to the fact that she did not consent (R v Wesaquate, 2022 SKCA 101 atpara 18, 418 CCC (3d) 225 [Wesaquate]).

In this case, the accused has admitted the intentional application of force of a sexual nature. The two issues to be decided are: 1. actus reus: Has the Crown proven that the complainant did not consent to the sexual contact; and 2. mens rea: Did the accused know, or was he reckless or wilfully blind to the fact that she did not consent? [21] The absence of consent is subjective to the complainant. She is not required to communicate that she does not consent beforethis element is made out (R v Ewanchuk, (SCC), [1999] 1 SCR 330 at paras 25 and 26 [Ewanchuk]).

According tosection 273.1 of the Criminal Code, consent means “the voluntary agreement of the complainant to engage in the sexual activity inquestion.” Consent must be freely given at the same time as the sexual activity. When a complainant is unconscious during the sexualactivity, the accused cannot rely on prior consent to justify sexual contact (R v A.(J.), 2011 SCC 28, [2011] 2 SCR 440). [22] Sexual assault contains two mens rea components: intention and knowledge. First, the application of force must beintentional.

The Crown need only prove the accused touched the complainant intentionally, as opposed to accidentally. Intoxication isno defence. Second, the accused must know the complainant did not consent, or be wilfully blind, that is, seeing the need to ask butdeliberately choosing not to, or be reckless, that is, persisting while aware of the risk she did not consent (Wesaquate at para 38). [23] According to

section 273.2 of the Criminal Code, it is not a defence that the accused believed the complainant consentedwhere the belief arose from self-induced intoxication, from recklessness or wilful blindness, where the accused did not take reasonablesteps to ascertain the complainant was consenting, or where there is no evidence that the complainant’s voluntary agreement wasaffirmatively expressed by words or actively expressed by conduct. [24] Where credibility is in issue, the question is not whose evidence the Court prefers. The burden remains on the Crown anddoes not shift.

According to the Supreme Court of Canada in R v W.(D.), (SCC), [1991] 1 SCR 742, if the trier of factbelieves the accused (and his evidence is exculpatory), they must acquit. Even if not believed, if the accused’s evidence raises areasonable doubt, he must be acquitted. Even if his evidence does not raise a reasonable doubt, before finding guilt, the trier of fact mustbe convinced beyond a reasonable doubt of the guilt of the accused based on the evidence they do accept. ANALYSIS [25] This case turns on the credibility and reliability of the two main witnesses, G.R. and Cal Henderson.

Crown counsel submitsthe complainant is both credible and reliable, and her evidence should be believed. She says the complainant has been consistent, herversion never wavering. The accused, on the other hand, gave several different versions of events. He is neither credible nor reliable,and the Court should reject his testimony. [26] Defence counsel submits that the Crown’s case relies entirely on the credibility and reliability of the complainant. Hesubmits her memory is unreliable and some of her testimony is contradicted by both Kya Halkett and the accused.

He says the accusedwas clear on details, such as what he was wearing, whereas the complainant could not remember such things. Her evidence is not strong

enough to support a conviction. He argues that, while the accused might be guilty of being a bad husband, he is not guilty of sexual assault. [ 27 ] G.R. says she did not consent to sexual intercourse with Cal Henderson. She is the only witness with direct knowledge of this fact. The question then becomes, does the evidence cast doubt on the veracity of this assertion on her part? [ 28 ] Despite her level of intoxication, and despite minor inconsistencies in her evidence, I found G.R. to be a credible, reliable witness.

Her version of events is internally consistent, consistent with the DNA evidence, and unshaken on cross-examination. Her willingness to travel to Prince Albert to undergo an invasive forensic examination is consistent with someone who is unafraid the evidence will contradict her.

Her demeanour, as observed by Constable Didonato, is consistent with recent victimization, although care must be taken not to place too much weight on that factor: victims respond to crime in many ways. [ 29 ] Minor inconsistencies in a witness’s testimony, or minor inconsistencies between honest witnesses, is to be expected, especially when they have been drinking. G.R. testified she did not talk to the accused at all except when he offered her cocaine. However, she did not deny speaking to him about other subjects, or through text messages, when these were raised to her in cross- examination.

I did not get the impression she was trying to hide anything. Rather, these questions refreshed her memory of these conversations. Furthermore, although Kya Halkett did not corroborate the complainant’s evidence that she was screaming and crying for help, neither did she contradict this testimony. Neither did she corroborate Mr. Henderson’s testimony about G.R. being in his arms on the bed, or flirting. She says she could not remember any of that. The accused is Ms. Halkett’s brother, after all, which may explain her reluctance to testify against him.

Kya Halkett’s testimony was unhelpful on the issue of consent. [ 30 ] Cal Henderson’s testimony was internally inconsistent and not believable. He seemed much more concerned with giving “the right answer” than with giving the true answer. For example, in his statement to police, when asked the simple question “What were you drinking?” he answered, “Water? Alcohol? I don’t know what you want me to say.” He gave three different versions of his story. He told the police nothing happened. He told his lawyer he does not remember what happened. He told the Crown prosecutor that he remembers everything.

He says the first two versions were the result of distrust of police and courts, nervousness, and embarrassment. While this may be understandable, the fact he is willing to lie to police and to the Court, for whatever reason, seriously undermines his credibility. Clearly, at least one of his versions is a lie. [ 31 ] I do not believe Mr. Henderson remembers what happened. He told the police nothing happened right after swabbing his penis, which had recently been inserted into the complainant’s vagina. Had he remembered the event, he would have known the sample would reveal evidence of that fact.

He might have devised a better lie. Moreover, on the witness stand, especially in cross-examination, he seemed to be creating facts as he went along. Overall, his evidence does not raise a doubt in my mind that the complainant did not consent to sexual intercourse with him. Accordingly, I accept the complainant’s evidence that she did not consent to the intercourse. [ 32 ] The Crown still must prove the accused knew the complainant was not consenting, that is, he had no honest belief in her consent. (If he did not believe she was consenting, ipso facto , he knew she was not consenting).

If G.R.’s evidence – that she was screaming and pushing him away – is true, he could not possibly believe she was consenting. Even if his (third) version is accepted, however, nowhere in his evidence did he say that he believed the complainant wanted to have sex with him. He said she did not protest, but his testimony lacks evidence the complainant said “yes,” either in words or by actively participating in sexual activity. On the best version of his evidence, he says, “There was some heavy petting. There was kissing, of course.” But he does not say who was petting whom. He does not say who was kissing whom.

He gave no evidence that she communicated consent to him in any way. According to Ewanchuk (at para 51 ), a “belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and provides no defence.” [ 33 ] Furthermore, even if it were true that earlier, in Kylin’s room, the complainant flirted with him (by saying “Thank you” to a compliment) or rested against his chest or sat in his “lap-ish,” that is irrelevant to whether she consented to sexual intercourse later, on the bed in the other room.

Consent to one form of touching at one time is not consent to all forms of touching at any time. The consent must occur at the same time as the sexual contact. There is no “implied consent” in Canadian law ( Ewanchuk ). [ 34 ] In short, I believe the complainant is telling the truth. I believe Mr. Henderson is fabricating facts to fill in gaps in his memory. Where their evidence conflicts, I accept the evidence of the complainant and reject the evidence of the accused. CONCLUSION [ 35 ] On the whole of the evidence, keeping in mind the burden of proof, I find the following relevant facts, proven by direct

evidence and inferences from circumstantial evidence. The complainant, Kylin, Kya, and the accused were drinking for a time in Kylin’s room in the basement. They consumed cocaine as well as alcohol. The complainant became intoxicated and “disappeared from the party.” Although she does not remember going to bed, I find on the evidence that she went to lie down on the bed in the other room in the basement. She was fully clothed. The accused continued drinking with his sisters. After a time, the accused left Kylin’s room to go to sleep, saw the complainant asleep on the bed in the next room, and joined her.

He removed her pants and underwear. He inserted his penis in her vagina and began having sexual intercourse with her. She awoke and protested loudly. She tried to push him away, but he continued until his sister entered the room, at which time he stopped. At this point, the complainant was wearing only a tank top. One of the sisters found her some clothes to wear, and their mother drove her home. Cal Henderson then went upstairs and fell asleep on the couch. [ 36 ] The complainant could not and did not consent to this sexual contact and gave the accused no reason to believe she consented.

On the evidence, I find he did not turn his mind to whether the complainant consented. She was asleep when he inserted his penis in her vagina. He could thus hold no belief, reasonable or otherwise, that she consented. [ 37 ] I do not believe the accused. His evidence does not leave me in a reasonable doubt. I believe the complainant and accept her testimony.

Her evidence satisfies me beyond a reasonable doubt that the accused intentionally applied force of a sexual nature to the complainant without her consent, knowing she did not consent. [ 38 ] I find the Crown has proven the elements of the offence beyond a reasonable doubt, and I find Cal Henderson guilty as charged. Dated this 22 nd day of June 2023, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________ F.M. Daunt