Her Majesty the Queen - v. -, 2022 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 36 Date: July 22, 2022 Information: 991169583 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trent Andrew Nippi Appearing: T. M. Brannen For the Crown L. M. Mischuk For the Accused JUDGMENT Q. D.

AGNEW , J [ 1 ] Trent Andrew Nippi is charged with four offences: 1. that he did, between June 26 and 27, 2021, at Saskatoon, for a sexual purpose invite, counsel or incite A, a person under the age of 16 years, to touch, directly or indirectly, with a part of the body, the body of the accused, contrary to s. 152 of the Criminal Code ; 2. that he did, at the same time and place, for a sexual purpose expose his genital organs to A, a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code ;

3. that he did, on or about June 20, 2021, at Saskatoon, commit a sexual assault on B, contrary to s. 271 of the Criminal Code; and 4. that he did, at the same time and place, for a sexual purpose touch, directly or indirectly, with a part of the body, a part of the body ofB, a person under the age of 16, contrary to s. 151 of the Criminal Code. General Comments [2] This trial involved two sets of allegations of sexual conduct by the accused against two 14-year-old girls. Although theallegations arose in the home of one of them, and the two girls knew each other, the incidents are unrelated.

There was no applicationregarding similar fact evidence. Accordingly, although there are some common uncontroversial facts, no decision I make with respect toone set of charges has any bearing on my decision with respect to the charges respecting the other complainant. Similarly, during thecourse of the trial, certain allegations came out in the evidence regarding other charges which the accused is facing. I think it improperthat those came out, as (1) part of it was simply hearsay, and

(2) Mr. Nippi is entitled to the presumption of innocence with respect tothose charges. There is no probative value to that evidence. I am therefore disabusing myself of that information, and it forms no part ofmy decision in the matters before me. [3] As noted, both complainants were 14 years old when the allegations arose, roughly one year ago. The law recognizes thatthe evidence of child witnesses is to be treated somewhat differently than that of adults.

This has been highlighted by, for example, theSupreme Court of Canada in R v B. (G.), (SCC), [1990] 2 SCR 30, R v R.W., (SCC), [1992] 2 SCR122, and R v C.C.F., (SCC), [1997] 3 SCR 1183, and by our own Court of Appeal recently in R v R.I.G., 2020 SKCA26. Some of the specific concerns regarding child witnesses are their suggestibility in response to questions, their ability to perceive, orto separate fantasy from reality, their ability to recall accurately, and their ability to communicate their evidence.

Those concernstypically ease as the age of the witnesses increases, with older children potentially being treated the same as would a young adultwitness. As with any other witness, credibility assessment is individualized, and there is no presumption either that they are or that theyare not telling the truth. Ultimately, the evidence of a child witness is to be assessed with recognition of the potential pitfalls imposed bythe witness’ age. Evidence of A [4] The first two charges relate to complainant A.

The Crown alleges that, on the night of June 26/27, 2021, the accused did: 1. for a sexual purpose invite, counsel or incite A, a person under the age of 16 years, to touch, directly or indirectly, with a part of thebody, the body of the accused, contrary to s. 152 of the Criminal Code; 2. for a sexual purpose, expose his genital organs to A, a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code. [5] The testimony of A was somewhat disjointed and confusing, but as I understood her, she was stating that on the night inquestion, she awoke to find the accused in her bedroom, on her bed, “butt naked” (a phrase she used several times).

The accused askedher if she wanted to have sex with him; she said no. He then left, returned clothed and then asked her if he could perform oral sex on her;she again said no. To be clear, her evidence on the latter point was that the accused asked her if he wanted to perform oral sex on her -she said it that way twice - but I find that what she was trying to say was that he asked to perform oral sex on her. [6] Bearing in mind my previous comments with respect to child witnesses, A’s evidence was compelling. It did not seemrehearsed.

Although difficult to follow at times, her presentation of her evidence was consistent with her age. Her words and deliveryseemed to be consistent with her age and maturity. She returned to certain significant events several times and was largely consistent inher descriptions. Evidence of B [7] The last two charges relate to complainant B.

The Crown’s allegation is that, in the early morning of June 20, 2021 (i.e., oneweek before the incident with A), the accused did: 3. commit a sexual assault on B, contrary to s. 271 of the Criminal Code; 4. for a sexual purpose touch, directly or indirectly, with a part of the body, a part of the body of B, a person under the age of sixteencontrary to s. 151 of the Criminal Code. [8] Both charges arose from the same incident. B’s evidence was that she and A were asleep in A’s bedroom. B was sleepingface-down, with her head in the pillow. The room was completely dark. She awoke to find herself being anally raped.

She testified thatit went on for about two minutes after which, in her words, she “fell asleep”. She never looked to the side or saw her attacker; the roomwas in any event completely dark. Her identification of her attacker is based entirely on scent - she smelled marijuana and alcohol. There is no evidence that the accused had a distinctive smell of any sort; there is no evidence that the accused that night had a strongodor of both alcohol and marijuana, nor that the accused had consumed either right before this incident. B testified that her attacker saidsomething to the effect of A being next.

There is no evidence that A was attacked that night, although of course A’s allegations againstthe accused arose one week later. Evidence of Mr. Nippi [9] The accused testified. He denied that he committed any of the crimes alleged. Although he simply gave a blanket denial ofthe charges, it was consistent with the response that would be given by an innocent person. His testimony was detailed, and he gave

plausible reasons for why he could remember certain details. [10] The accused testified that he did in fact enter A’s bedroom on the night of June 26/27. He said that he had found a bag ofmethamphetamine, which he believed to be hers, and he wanted to confront her about it. He wanted to offer her the chance to disclose itto her mother herself, failing which he intended to do so. [11] It seemed that this evidence about the methamphetamine was offered as a reason for Mr.

Nippi to have been in A’s room, andpossibly also to suggest a motive for A to lie about the allegations before the Court. [12] These allegations about the methamphetamine, and the conversation between Mr. Nippi and A about it, were never put to Aduring her testimony. It is therefore not possible to know what her response would have been to them. There are two possible reasonsthat come to mind to explain this omission:

(1) Mr. Nippi knew that A’s response to those allegations would have been damaging to hiscase, or;

(2) Mr. Nippi’s counsel was not made aware by Mr. Nippi of these allegations in time to cross-examine A on them. Neitherpossibility flatters Mr. Nippi’s reliability. [13] The failure to put these allegations to A was a breach of the rule in Browne v Dunn (1893), 6 R 67 (UK HL). That rule wasrecently addressed by the Saskatchewan Court of Appeal in R v Wilde, 2022 SKCA 74 (paras 58-60): [58] The rule in Browne v Dunn was summarized in R v Wapass, 2014 SKCA 76, 314 CCC (3d) 561 [Wapass], in this way: [21] As the Court explained in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, the rule in Browne v.

Dunn “requires counsel to give noticeto those witnesses whom the cross-examiner intends later to impeach” (para. 64).

Giving notice in this context means that if counselintends to challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, “thewitness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box” (R. v.Henderson (1999), (ON CA), 134 C.C.C. (3d) 131 at 141). [59] The Browne v Dunn rule is said to serve these three purposes: "the need to treat the witness and the parties fairly", "to prevent thefact finder from being misled", and "to promote the orderly presentation of the evidence at trial" (The Honourable S.

Casey Hill, DavidM. Tanovich, and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, loose-leaf (Rel 1, Feb 2022) 5th ed (Toronto: ThomsonReuters, 2013) at §21:113 (WL)). [60] Where a Browne v Dunn breach arises at trial, several options are open to the trial judge to rectify the issue.

In R v Maxie, 2014SKCA 103, 316 CCC (3d) 396 [Maxie], quoting from R v Dexter, 2013 ONCA 744, 313 OAC 226, this Court outlined the options asfollows: “One is for the trial judge to take into account the failure to cross-examine when assessing a witness’s credibility and decidingthe weight to be given to that witness’s evidence: see Werkman, [2007 ABCA 130] at paras. 9–11; R. v. Paris (2000), (ON CA), 138 O.A.C. 287, at para. 22. Another is to allow counsel to recall the witness whose evidence has been impeachedwithout notice” (at para 21). [14] The Crown did not seek to recall A.

I intend to deal with the breach of the rule by holding it against Mr. Nippi’s credibility,specifically as it relates to the allegations relating to A. This, combined with my general findings of A’s credibility, means that wherethere are inconsistencies between Mr. Nippi’s evidence and A’s, I accept A’s evidence and reject his. Rejecting his testimony is not afinding of guilt: it simply means that I take no account of the rejected evidence. The question remains whether or not the evidence Iaccept proves his guilt beyond a reasonable doubt.

Other Evidence [15] The evidence is that, around the time of the attack, the accused was the only male typically living at the house. However, theevidence also established that A’s grandfather often would stay at the house - whenever he was thrown out of his own house by hispartner, apparently a fairly frequent occurrence. There is no evidence as to whether or not he was there that night (although he was notthere earlier that evening); there is no evidence that any other male was or was not there that night (again, however, there was no othermale present earlier in the evening).

That is, there is no evidence one way or the other as to whether or not, at the time of the attack, theaccused was the sole male in the house. Analysis Count 1 [16] I find that: on the night in question, Mr. Nippi came into the bedroom where A was sleeping; A awoke to find him there; Mr.Nippi asked her if she wanted to have sex with him and she said no, following which he left; he then returned and asked if he couldperform oral sex on her, and she again said no. [17] Count 1 is an allegation that the accused, Mr.

Nippi, did for a sexual purpose invite, counsel or incite A, a person under theage of 16 years, to touch, directly or indirectly, with a part of the body, the body of the accused. There is no doubt but that almost all ofthe requirements of the actus reus have been made out: it was the accused who made the statements; they were for a sexual purpose; Awas under 16.

The concern I have is whether or not he invited, counseled or incited A to touch him. [18] A’s evidence with respect to exactly what the accused said when he first suggested sexual contact is too vague to determinewhether he was suggesting that she touch him or that she allow him to touch her. The suggestion of oral sex, however, wasunequivocally one of him asking if he could touch her. The question is whether the section, in referring to inviting, etc. A to touch theaccused, includes inviting, etc. A to allow the accused to touch her.

[19] “To touch” is clearly an active verb. Although it can be used in the sense of two things “touching”, they are only touchingbecause one has already touched the other. The plain and ordinary use of the verb is for one person or object to act on another. The firstis the “toucher”, as it were, while the second is the “touchee”.

It flies in the face of the ordinary usage of the verb to call the secondperson, the recipient of the touch, the “toucher” even though, once the touch has occurred, they are both touching each other. [20] To use a concrete example: John and Suzie are children, playing together; John places his hand on Suzie; an adult asks Suzie,“Why did you touch John?” Suzie would likely respond, “I didn’t touch John - he touched me.” This is in accordance with the plain andordinary meaning of the verb “to touch” - one person or object acts on another. It makes no sense to say, “Suzie touched John.” [21] When Mr.

Nippi asked if he could perform oral sex on A, was he asking her to touch him, or was he asking her to let himtouch her? The difference is between touching and being touched. It is clear that the accused was asking A to allow herself to betouched by him, rather than asking her to touch him. Just as with the John/Suzie example, it makes no sense to say that the accused wasasking A to touch him – he was instead suggesting that he touch her. Had he been successful in so doing, and A then testified about thatincident, she would surely not have been asked, “Why did you touch Mr.

Nippi?” If she was asked that question, undoubtedly heranswer would have been, “I didn’t touch him. He touched me.” [22] Parliament has determined that it should be an offence to invite, etc. A “to touch” the accused. Parliament could have, but didnot, create an offence of inviting, etc. “to touch or be touched by”. Does the proper

interpretation of s. 152 include, in essence, readingin the words “or be touched by”? [23] There is a clear line of authority that states that when the wording of a statute is clear, no

interpretation is required: “When thecourts are called upon to interpret a statute, their task is to discover the intention of Parliament. When the words used in a statute areclear and unambiguous, no further step is needed to identify the intention of Parliament” (R v Multiform Manufacturing Co., (SCC), [1990] 2 SCR 624 at para 9). If, on the other hand, the language of the statute is ambiguous, allowing for more thanone plausible alternative, then the legislative intent or purpose should be considered (Willick v Willick, (SCC), [1994] 3SCR 670).

The process is therefore a two-step process: 1. are the words of s. 152 clear? If so, they must be given effect, and the inquiry is at an end; 2. if not, what was the legislative intent? It must be determined and applied. [24]

Section 152 has been considered, in precisely the same factual situation, in the brief oral decision of R v Gray, (ON CA), [2004] OJ No 4100 (QL) (Ont CA) [Gray]. The accused asked the complainant if he could perform oral sex on her. The accused argued that he had not invited her to touch him, but rather to allow him to touch her. The Ontario Court of Appeal rejectedthat argument (para 7): [7]

Section 152 must be interpreted purposively. See R. v. Fong (1994) 1994 ABCA 267 , 92 C.C.C. (3d) 171, Alta C.A. It isclear that the request by the accused to permit him to touch the complainant's private parts is an invitation to have her body touch hisbody for a sexual purpose. The

section is designed to encompass exactly such situations. [25] As can be seen, the Court of Appeal referred to both steps of the interpretive process. First, it goes to the second step,legislative intent, by seeking the purpose of the

section - that is, Parliament’s intention in creating the section. In this regard, it cites R vFong, 1994 ABCA 267, 92 CCC (3d) 171 [Fong]. The Court then, however, refers to the first step of the process, and concludes thatthere is in fact no ambiguity. [26] In addition to reversing the mandated analysis, there are with respect difficulties in the Court’s approach to both steps. [27] With respect to the first step (which the Court of Appeal treats second), the Court does not actually engage with the wordingof the section.

There is no analysis of the wording, but simply a declaration that, in essence, “to touch” includes “to be touched by”. The juxtaposition of this statement with the reference to purposive

interpretation and Fong makes it seem that the Court has used apurposive

interpretation to come to the conclusion that there is no ambiguity. As noted above, however, this is not the approachmandated by the Supreme Court of Canada in statutory

interpretation. The Court can only look at the purpose of the

section if it isambiguous. [28] With respect to the second step, the reference to purposive

interpretation, the Court of Appeal makes reference to Fong. InFong, the accused ejaculated into a tissue, which he then asked the complainant to hold. He was charged under s. 152, and the AlbertaCourt of Appeal had to determine whether or not this conduct fell under the section. His argument, however, was not the argument madein Gray; rather, he argued that once his ejaculate left his body, it was no longer part of his body and therefore any invitation to touch itwas not an invitation to touch his body (para 9). [29] The Court of Appeal, in the course of its reasons, made the comment which forms the basis of the Ontario Court of Appeal’scomments in Gray (para 10):

Section 152 of the Criminal Code is one of the relatively recent amendments to the Code designed to prevent sexual exploitation of andinterference with young children. As such, it should be construed purposively in a manner consistent with the philosophy and rationaleunderlying Parliament's objectives. [30] That comment, however, is simply obiter; the Court of Appeal found that the conduct of the accused in fact fell squarelywithin the wording of the

section (para 10): To suggest that the word "touch" should be interpreted to mean that there must be physical contact between two persons or an invitationto engage in that contact in order for an offence under s. 152 to be committed would be to ignore the broad wording of this section. Thesection covers not only actual touching but also "indirect" touching. This we understand to include a case where as here, the appellant hasinvited a young child to act as a sexual repository for him by holding a tissue onto which he then ejaculated. Ejaculating semen onto a

tissue which the accused has directed a child to hold in her hands constitutes indirect touching of the child by the accused with a part ofhis body, his semen, through the medium of an object, the tissue. Or to put this in the terms of s. 152, the appellant invited the childcomplainant to indirectly touch his body through his semen -- with the use of an object, the tissue. That activity is proscribed by s. 152. [31] In the context of the present discussion, it is particularly noteworthy that in Fong, the accused invited the complainant totouch the tissue - that is, to take the active step the verb requires.

The issue was simply whether or not the wording of s. 152 prohibitedthis type of touching, which the Alberta Court of Appeal found it did by the

section referring to touching “directly or indirectly(emphasis added). Thus, the Alberta Court of Appeal’s analysis stopped at step 1, and the Court found it unnecessary to purposivelyinterpret s. 152 notwithstanding its obiter dicta regarding Parliament’s objectives. [32] As a result, the conclusion in Gray is, with all due respect, suspect. It relies on obiter from Fong, a case in which the wordingof s. 152 was found to be clear without resort to determination of legislative intent. Although Fong stopped at step 1 of the statutoryinterpretation, Gray takes it as authority to proceed to step 2.

The Court then reverses the order of the two-step process for statutoryinterpretation, and simply concludes that the words of the

section encompass wording not found in it. [33] The Crown in the present case has raised the case of R v G.D.G., 2013 MBQB 244, 298 Man R (2d) 119. That decision alsocited Fong but is otherwise unhelpful as it was a decision on the meaning of “for a sexual purpose”. The Court had to determine whetheror not that phrase included more than just the accused’s own sexual gratification. In the context of the facts of that case, the wording ofthe

section created some uncertainty and accordingly the Court applied a purposive analysis, in the course of which it referred to theobiter comments in Fong. As this simply confirms the two-step approach referred to above, it does not assist in determining whether theinterpretation of s. 152 in the case before me requires proceeding to step 2, or if the wording is clear and unambiguous as it applies toMr. Nippi. [34] Finally, the Crown raised R v Legare, 2008 ABCA 138, 429 AR 271. In the course of finding the accused not guilty under s.152, the Court referred to the principles of statutory

interpretation set out in R v Clark, 2005 SCC 2, [2005] 1 SCR 6, and cited paragraph43 of that decision: [43] It is now well established that "the words of

an Act are to be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v.Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26” [35] Of particular significance to the present discussion is the reference to Bell ExpressVu. Two paragraphs later than the portionquoted, namely at paragraph 28, the Supreme Court of Canada refers to the principle of strict construction of penal statutes (which werenot under discussion in Bell ExpressVu): [28] Other principles of

interpretation -- such as the strict construction of penal statutes and the "Charter values" presumption -- onlyreceive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy AttorneyGeneral for Canada, (SCC), [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis (1981), (ON CA), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander, (SCC), [1993] 2 S.C.R. 398, at p. 413;R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46. . .

Marcotte in turn says (p 115): It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed for theproposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting theliberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, byimplication. [emphasis added] [36] In my respectful view this passage, approvingly cited by the Supreme Court of Canada in 2002, answers the

interpretationquestion before me.

Section 152 is unambiguous with respect to the facts before me: Mr. Nippi was prohibited from suggesting to A thatshe touch him; he did not make that suggestion. Lacking ambiguity, there is no need to proceed to step 2 of the

interpretation process;indeed, not only is there no need, there is no authority for so doing. In the absence of ambiguity, the Court cannot use “legislativeintent” to create an offence where Parliament did not do so. [37] Parliament could have made it an offence to invite, etc. the complainant to touch or be touched; it did not do so. If the sectionread that way, I would have no hesitation in finding Mr. Nippi guilty, as the evidence clearly establishes that he asked that she allowherself to be touched by him.

The Supreme Court of Canada, however, has enjoined courts not to find penal consequences whereParliament has not explicitly created them. I certainly agree that Mr. Nippi’s conduct was reprehensible; in the absence of an expressstatement from Parliament that it is criminal, however, I am not prepared to make it so. [38] There may have been other offences that Mr. Nippi could have been charged with on these facts, for which he might well havebeen found guilty. I can however only deal with the charges presented by the Crown. I cannot distort the wording of the

section in orderto find an offence to convict Mr. Nippi of, where Parliament has not done so. [39] I accordingly find Mr. Nippi not guilty of count 1. Count 2 [40] Count 2 is the allegation that the accused exposed his genitals to A for a sexual purpose. In argument, the Crown conceded

that A’s evidence in this regard was vague. Although she referred several times to him being “butt naked”, she also stated that she only saw his face and upper torso - she clearly believed he was naked but did not look at his “private parts”. [ 41 ] Direct vision is not required in order to “see” something. Peripheral vision can certainly, in at least some circumstances, be sufficient to allow the observer to notice something. Had A testified, for example, that she did not look directly at the accused’s genitals but could see them from the corner of her eye, that would suffice.

Even her testimony as it was would have been sufficient, had she been able to testify that she saw his front and he was “butt naked”. As it is, however, I do not know if she noticed his nakedness from the front, the side or the back. Given that the charge is exposure of the genitals, it would not be made out if for example A observed the accused only from the back and saw that he was completely naked - a situation which would fully accord with her testimony. [ 42 ] The actus reus of the offence requires, inter alia , that the accused’s genitals be exposed to A.

As with any other essential element of the offence, the Crown must prove this beyond a reasonable doubt. Although the evidence certainly indicates that the accused was naked, I cannot find beyond a reasonable doubt that his genitals were exposed to A. I therefore find him not guilty of count 2. Counts 3 and 4 [ 43 ] I am satisfied, on the evidence, that B was attacked as she describes. There is no doubt but that she was sexually assaulted and accordingly that sexual touching occurred.

The only question is whether or not the Crown has proven, beyond a reasonable doubt, that her assailant was the accused. [ 44 ] As noted in the

summary of B’s evidence, she did not see her attacker. Her identification was based solely on the attacker’s smell. [ 45 ] I am not willing to give a great deal of weight to the identification of the accused as the attacker based on smell. The smell was not particularly distinctive nor obviously unique to the accused, since it was merely a combination of alcohol and marijuana.

If I discount that evidence, does the remainder of the evidence convince me beyond a reasonable doubt that B’s assailant was the accused? [ 46 ] The Crown’s case in essence relies on the fact that no other male is known to have been in the house at that time. Of course, equally, the accused is not known to have been in the house at that time. He was present in the house earlier in the evening, at which time he was the only male there; that is all the evidence shows. Did that change? Did he leave? Did some other male arrive? There is no evidence one way or the other.

The accused is certainly the most likely suspect, but the evidence of his identity as B’s attacker is purely circumstantial. [ 47 ] In a circumstantial case, conviction can occur only if the accused’s guilt is the only rational explanation that can be drawn from the facts ( R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 [ Villaroman ] at paras 17-22 ). That explanation, however, has to be grounded in the facts or lack thereof, not in pure speculation ( Villaroman , paras 35-43 ).

Is there, then, on the evidence before me a rational alternative to the identity of the attacker being the accused? [ 48 ] I find that there is, namely A’s grandfather. His presence in the house was not unusual, and he apparently would arrive without warning. If he had arrived after B went to sleep, she would have no way of knowing that he was present. There is no evidence to discount the possibility that he was present. I hasten to add that I am not accusing him of being the attacker, let alone finding that he was. However, he poses an alternate explanation, rooted in the evidence, to the guilt of the accused.

Accordingly, the guilt of the accused is not the only rational explanation that can be drawn from the facts. Accordingly, per Villaroman , I cannot conclude beyond a reasonable doubt that the person who sexually assaulted B was the accused. [ 49 ] As a result, I find the accused not guilty of counts 3 and 4. ___________________________ Q.D. Agnew, J