Her Majesty the Queen - v. -, 2018 SKPC 039

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 039 Date: June 20, 2018 Information: 30573330 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew W. Kacuiba Appearing: Ms. Elizabeth Addabor For the Crown Ms. Michelle Caron For the Accused Note: An order has been made in accordance with

section 486.4 of the Criminal Code directing that any information identifying the complainant shall not be published. DECISION H.M. HARRADENCE, J INTRODUCTION [ 1 ] Matthew Kacuiba is alleged to have sexually assaulted KM during the early morning hours of April 30, 2015. It is agreed that he and KM had sexual intercourse outside of a residence. Both had been drinking for several hours.

[2] This is a criminal trial. Matthew Kacuiba is presumed innocent. He is not required to prove anything. The Crown mustprove beyond a reasonable doubt all of the elements of the offence of sexual assault. [3] If after I consider all of the evidence I am left with a reasonable doubt, even if I conclude the accused is probably guilty, Imust acquit. In this regard I am mindful of R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 (SCC), whichapplies specifically where, as in this case, the accused testifies. [4] Counsel agrees that the two issues are consent and honest belief in consent. I have reviewed and applied

section 273.1 whichdefines when consent is not obtained and

section 273.2 which limits the defence of honest belief in consent. I have also applied the casesprovided by the Crown; R v Ewanchuk, 1999 SCC 711; R v J.A., 2011 SCC 28; and R v Dippel, 2011 ABCA 129, as well as R vKishayinew, 2017 SKQB 177, which was filed by the defence. [5] The Crown called four witnesses: 1. KM 2. Cst. Leblue 3. Sgt. Rowden 4. Cst.

Mitchell [6] In addition, the Crown filed, with consent of the defence, a laboratory report with related documentation. [7] KM testified that on the evening of April 29, 2015, she was drinking at her brother’s house, her friend’s house and then shewent to Georgie’s and bought a 2L cooler. She then went back to her friend’s house but found that her friend was asleep. She continuedwalking down the street on the east side of Prince Albert when a male who was standing by a truck invited her into a house. She wentin. There were a total of three males in the house. They were drinking beer.

When she was in the house she admits to being drunk. Shetestified she was so drunk she was blacking out and cannot remember everything. She does remember the men talking about being inIraq and then they asked her for a hug. She says that when the shorter man hugged her he grabbed her butt. KM remembers feelinguncomfortable as a result of him grabbing her butt. She left the house. The man that grabbed her butt came with her. She agrees thatshe cannot remember everything that happened but she does say that once outside the man grabbed her head and started to kiss her. Shedoes remember being bent over a fence.

She says he stuck his penis in her vagina. She remembers trying to push him off. Sheremembers trying to find her clothing. It was dark. She says she did not want to have sex with him or anyone else. [8] In cross-examination KM did not deviate from her testimony that she was intoxicated but she did agree that she was notvomiting, nor was she falling down drunk or passing out. She also agreed that she gave a statement to the police the day after theincident. In her testimony she said that she had been drinking vodka at her brothers’ house but this was not included in her policestatement.

She also agreed in cross-examination that it was possible that she said prior to leaving the house she was going to get herfriends but in reality she did not have any friends to bring back to the house. [9] Cst. Leblue and Sgt. Rowden were dispatched to a call on April 30, 2015, that indicated a female was in a yard near 7th Streetin Prince Albert. According to Sgt. Rowden, the dispatch was at 3:31 a.m. on April 30, 2015. These officers located KM. Cst. Lebluetestified that she was highly intoxicated and visibly upset. She took the officers to a house. One male was outside of the house.

Sgt.Rowden knew this male, Greg Provost. Provost was highly intoxicated. The other males were inside the house. [10] One of these males was the accused. All three males denied involvement. The police took their names and left. The nextday, Cst. Leblue interviewed KM. This interview was video recorded. [11] Also, the following day, Cst. Mitchell attended a yard at 730 7th Street East but found nothing related to this incident. [12] Matthew Kacuiba testified. He works at Agrium Potash Mine. He and his co-worker, John Dalke, were working on April 29,2015.

On their way home they decided to have some drinks that evening. Over the course of the evening they were joined by GregProvost. They were drinking at Dalke’s residence. Kacuiba estimates he drank ten beers over six hours. At one point Provost was

outside. He came in with KM. Matthew Kacuiba had never seen her before. In cross-examination he agreed that she was in the housefor approximately 20 minutes. He disagreed that he hugged her in the house. He said in the house, the three males and KM were allgetting along and having a good time. The males were drinking beer and KM was drinking a cooler she had brought. At one point GregProvost told KM they were in the army. Kacuiba agreed this was false. [13] Matthew Kacuiba says that KM suggested that she could go and get her friends. He volunteered to go with her.

He sayswhen they got outside they started to kiss. According to him, this was the first sexual contact between them. He said that sheparticipated in the kiss. He suggested to her that they have sex and she agreed. Initially he assisted to pull down her pants and she bentover a fence. He said he could not penetrate her with his penis in this position so she lay down on the ground and he lay on top of her. He agrees that he penetrated her vagina with his penis. She was touching him with her hands. He says she was moaning and he believedshe was enjoying the sex.

He did not testify as to how long the intercourse lasted but he did say he did not use a condom. When theintercourse was complete he went back inside to continue drinking with his friends. He said he did not want her to come back inside. Mr. Kacuiba believed she was upset with him when he refused to allow her to come back and join them. [14] At the beginning of cross-examination Ms. Addabor asked the accused if he denied the allegation when the police came to theresidence that morning. Ms. Caron objected to this question saying there was no evidence as to what the police had asked him. I allowedthe question.

The accused agreed with Ms. Addabor, responding “absolutely”. On reflection, I believe this to be an inappropriatequestion, which without more, I should not have allowed. The officers were clearly conducting an investigation and questioning asuspect. At a minimum, if this line of questioning was to be pursued, a voir dire may have been necessary. In addition, the context ofthe question is unknown. For these reasons I have decided to disregard this question and answer, and I will not use this exchangebetween the prosecutor and the accused when considering my verdict.

ANALYSIS [15] There is no doubt that KM was highly intoxicated when she met the accused. She freely admitted that she made a mistake bygoing into the house, she was blacking out from alcohol consumption and she cannot remember the entire sequence of events. Shemaintains that she did not consent to have sexual intercourse with him. [16] Matthew Kacuiba agrees that both he and the complainant had been drinking. He opines that she was drunk but knew whatshe was doing and was having fun. He says within 20 minutes of meeting her he asked her to have sex with him. She agreed.

They hadconsensual sexual intercourse outside and KM, according to him, was moaning which he took to mean she enjoyed it. KM not onlyagreed to the sex but was touching him during and offering no resistance according to him. [17]

Section 273.1(2) of the Criminal Code defines a lack of consent as follows:

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. [18] The actus reus of a sexual assault was defined by Justice Major in Ewanchuk as: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, andR. v. Chase, (SCC), [1987] 2 S.C.R. 293. 26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind

towards the touching, at the time it occurred. [ 19 ] An assessment of the evidence is made more difficult by the consumption of alcohol and the passage of time in these circumstances. The evidence of KM is particularly incomplete. She was candid in her difficulties recalling the events. Her candor, by itself, does not result in her evidence being reliable, and the incompleteness of her evidence does not automatically render it unreliable.

Rather, I am required to step back and review all of the evidence before making any findings of fact. [ 20 ] This is not a circumstance where the complainant was so intoxicated as to be incapable of consent. ( R v Al-Rawi , 2010 NSCA 10 at para 66 .) The evidence of the complainant is that despite her intoxication she understood the sexual activity that took place and did not consent to it. She tried to resist the accused’s advances.

As indicated in Ewanchuk , above, the absence of consent must be examined by reference to the complainant’s subjective internal state of mind at the time. ( R v Kishayinew , at para 63 .) [ 21 ] The evidence of the accused is in stark contrast. He acknowledges consuming alcohol and knew that she had done the same. Mr. Kacuiba said that KM agreed to the sex and was a willing participant. After the intercourse he went back and continued to consume alcohol with his two friends. Mr. Kacuiba did not testify where KM went, but sometime later that morning Cst.

Leblue found KM visibly upset and highly intoxicated. [ 22 ] The defence says that if the actus reus is established beyond a reasonable doubt that the complainant did not consent, the Crown has not established the mens rea of the offence. [ 23 ] Sexual assault is an offence of general intent. The accused must be acquitted if the Crown has not proven the accused intended to touch the complainant without her consent.

If the evidence raises a reasonable doubt as to whether the accused honestly believed the complainant communicated consent, he must be acquitted. [ 24 ] The defence of honest belief in consent is limited by s. 273.2 of the Criminal Code : 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [ 25 ] This defence is a denial of intent. It does not place any onus on the accused ( R v Ewanchuk , at para 44) and involves close scrutiny of the evidence. [ 26 ] I am uncertain as to the amount of alcohol consumed by the complainant and the accused. I am not sure of the times of the various events other than when the police found the complainant.

The Crown was unable or unwilling to provide the evidence of the two other males at the house or the complainant’s brother or friend that she was drinking with earlier. I will not speculate as to the nature of this evidence. I recognize that the Crown must prove each element of the offence and a reasonable doubt can arise from the absence of evidence. [ 27 ] The assessment of credibility is critical to this case. Fundamental to this analysis is the presumption of innocence. I must be careful not to base my conclusion on a preference for either the evidence of the Crown or the defence.

If after reviewing all of the evidence I am left with a reasonable doubt, the accused is not guilty. ( R v Vuradin , 2013 SCC 38 , at paras 25-28 , and R v Kishayinew , at para 58 .) [ 28 ] The evidence of KM was straight forward. She admitted that she had made a mistake going to the house with a strange man. She admitted that there were large gaps in her evidence. KM said she was crying and alone after the sex. The police responded to a dispatch. According to Cst. Leblue, the complainant was visibly upset. The police, acting on her directions, took her to the house where

the three men were located. She was fearful and fled before she could be asked to identify the individual with whom she had had sex. Her evidence is corroborated in this regard by Cst. Leblue’s testimony. [29] The evidence of Matthew Kacuiba is matter of fact. He denies hugging the complainant in the house. He says he did not grabher butt. The first sexual contact between the two was outside when they began to kiss moments before the sexual intercourse. Thereason he left the house with KM was, according to him, to assist KM to get her friends. Mr. Kacuiba’s evidence was that the sexualcontact was spontaneous.

Inexplicably, after having consensual sexual intercourse he abandoned KM and the search for her friends. Hehas no idea where she went. [30] When I review the totality of the evidence I am satisfied that the complainant did not consent to have sexual intercourse withthe accused. Although her memory is not complete, her evidence, when considered in the totality of the evidence is believable andreliable. The accused’s evidence is self-serving and incredulous. I do not believe, in these circumstances, that these two individuals hadconsensual sexual intercourse within 20 minutes of meeting each other.

Further, I do not believe that after consensual sexual intercourseMr. Kacuiba would have simply left her alone. His evidence is incredible and unreliable. (R v JJRD (2006), (ONCA), 215 CCC (3d) 252 (ONCA) at para 35.) After reviewing the totality of the evidence, I am satisfied beyond a reasonable doubt thatKM did not consent to have sexual intercourse with Matthew Kacuiba on April 30, 2015. [31] Specifically, I do not believe he asked her to have sex and she agreed, nor does this evidence in the context of all the evidence,raise a reasonable doubt.

I do not believe he took any steps, let alone reasonable ones, to ascertain whether she was consenting. Hisevidence about her moaning and his conclusion she was enjoying the sexual intercourse is, in my view, fabrication and incapable ofraising a reasonable doubt. I have concluded, on these facts, the defence of honest but mistaken belief is not applicable. [32] In conclusion, I am satisfied that the Crown has proven beyond a reasonable doubt that Matthew Kacuiba sexually assaultedKM on April 30, 2015.

Dated this 20th day of June, A.D. 2018, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ H.M. HARRADENCE, J