Her Majesty the Queen - v. -, 2012 SKPC 127

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 127 Date: August 3, 2012 Information: 24413222 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - C. J. S. M. Appearing: D. Bode For the Crown S. Wagner For the Accused JUDGMENT B. M. KLAUSE , J I. INTRODUCTION [ 1 ] C. M. is charged between January 24, 2006, and January 24, 2008, at Yorkton, Saskatchewan, with the following offences: (1) sexual assault on D. M., contrary to s. 271 of the Criminal Code of Canada ;

(2) for a sexual purpose touch a part of the body of D. M. a person under the age of fourteen years, contrary to s. 151 of the Criminal Code of Canada ; (3) for a sexual purpose, invite D. M. a person under the age of 14 years to touch directly a part of his body, to wit, his penis, contrary to s. 152 of the Criminal Code of Canada ; (4) commit an assault on D. M., contrary to s. 266 of the Criminal Code of Canada ; and (5) knowingly utter a threat to cause death or serious bodily harm to D. M., contrary to s. 264.1(1) (

a) of the Criminal Code of Canada . [ 2 ] The Information was sworn April 7, 2010, and the accused made his first appearance in Provincial Court in Yorkton on May 10, 2010. The Crown elected to proceed by Indictment on all charges, and the matter was adjourned for trial to October 19, 2010. The matter was brought forward on October 6, 2010, and the trial was adjourned to March 23, 2011, at the request of the defence. On March 2, 2011, the matter was brought forward and adjourned to August 3, 2011, for trial.

On August 3, 2011, the matter was again adjourned at the request of the Crown, and adjourned on a peremptory basis to December 8, 2011. The matter was again spoken to on August 11, 2011, and was adjourned on a peremptory basis on the Crown to January 23, 2012. The trial proceeded on that date. II. THE EVIDENCE [ 3 ] The Crown called one witness, D. M., who testified in the soft room via live video. She was born on […], 1996, and during the time frame of the Information would have been between 10 and 12 years of age. At the time of the alleged offences, she was residing with her mother, J.

M., her sister, two brothers and her mother’s live in partner, the accused C. M., also known as “S.”. [ 4 ] The complainant testified in a straightforward, relatively composed manner and described a series of events which occurred over the relevant time frame, by reference to where she was residing with the accused and her mother, in various locations in the City of Yorkton, Saskatchewan. [ 5 ] The following incidents form the substance of the Crown’s case against the accused: 1.

When she was ten and therefore living on Fenson Crescent in Yorkton, the accused put his hand on her legs when she only had a towel on after bathing, her brother walked in (she was unable to advise which brother) and the accused stopped the touching when the brother arrived. 2. The next incident she described, was when her family was at the park and she was home alone with the accused. She indicates that she was on the couch with a blanket with the accused, watching tv when he grabbed her hand and placed her hand on his penis.

She reiterated that despite having no previous penile experience, she was able to conclude it was a penis because she felt something under his shorts. In terms of time frame, she only guessed that it was summer because of the reference to a park, and the fact that she believes they were all wearing shorts. Nothing else happened that day. 3. The next incident was after the family had moved to 3 rd Avenue in Yorkton, when she was 12. It was a hot summer day and she had gone upstairs to retrieve the dog leash.

She indicated that the accused came upstairs into her bedroom, tried to pull her pants off and did succeed in pulling off her pants and underwear, and then proceeded to put his tongue on her vagina. She was unable to recall her position on the bed but indicated that she was disgusted and started to cry. It was at this time that she threatened to tell her mom about what had happened, and the accused grabbed her by the jaw, hence the common assault charge, and told her to “never threaten me again”, hence the threat charge. 4.

She did not recall anything else happening, but at some gentle prompting by the Crown, allowed that on one occasion he “put his penis by her vagina”, while they were living on 3 rd but she could not recall any other details of this incident, and that on a further

incident he had kissed her and put his tongue in her mouth. [6] These incidents were brought to the attention of her mother when her mother and the accused were involved with her in anargument over her seeing her brother, after he had been ejected from the house, and she was not supposed to have any contact with him,without her parents’ consent. In her own words, “it just came out”. As a result of this disclosure, her mother confronted the accused,who left the domicile almost immediately.

They have not resided together since that time and the complaint to the police was made. [7] The complainant was extensively cross-examined by counsel for the defence. The vast majority of questions were questions thatthe complaint did not know the answer to, or was unable to recall what had happened due to the effluxion of time. She further advisedthat the relationship between her and her step-father was not always bad and that her mother was generally the disciplinarian in thefamily, not the accused.

Essentially she confirmed her answers given in chief with very little departure from those responses. [8] That concluded the case for the Crown. The defence called one witness, the accused, who essentially outlined the livingarrangements between himself and the M. family. He is employed by the railroad as a conductor and apparently has no previous criminalrecord. He indicated that it was a dry house, that alcohol was not tolerated and that he was always concerned about the girls wearingclothes that were too skimpy.

He agreed that this whole incident came to a head when the complainant and her mother were arguingabout the complainant seeing her older brother and Ms. M. accused him of touching D. as a result. He went to the police station himself,volunteered to take a polygraph and was told by the police officer to go home. He is still in touch with the two older boys and hasalways regarded them as his family.

He denied any open mouth kissing, any inappropriate touching, no penis/hand contact, any violenceor threats and testified that there is no truth in these allegations. [9] The cross-examination was brief, and to the point. The accused reiterated his position, indicating that he had spent 11 years withthe M. family and indicated that the only arguments that he ever really had with the complainant were about her choice of clothing forschool. III. THE LAW [10] It is trite to point out that the onus is upon the Crown to prove each and every element of the offence beyond a reasonable doubt.

This onus never shifts and remains on the Crown throughout the proceeding. In order for the Crown to succeed in the context of thiscase, it must prove beyond any reasonable doubt that a sexual touching of the sort described by the complainant actually occurred. If Iam left with any reasonable doubt, that doubt must be exercised in favour of the accused. [11] This is a difficult case for both the Crown and the Defence. The Crown is faced with the evidence of a single witness withoutany supporting medical, family or corroborative evidence.

No statement was presented by the Crown that would indicate anyinvolvement by the accused nor was any additional evidence provided by the Crown in terms of opportunity or otherwise. Similarly theDefence is left with the unenviable position of trying to extract from a very young witness, embarrassing details, of a very personalmatter, which may, or may not, have occurred four to six years ago.

No records or detailed notes were kept, no statements were made toan adult at the time of the offence and apparently no notes were kept by the complainant, in terms of the activities alleged, or the dateson which they occurred. [12] The leading case in this area on the burden of proof is D. W. vs. The Queen (1991), (SCC), 63 C.C.C. (3d) 397, adecision of the Supreme Court of Canada. At page 409 of the Judgment per Cory, J.: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.

Thetrial judge should instruct the jury that they need no firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if the believe the accused. Secondly, if thedo not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in thecontext of the evidence as a whole: see R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.); approved inR. v. Morin, supra, at p.207.

Ideally, appropriate instructions on the issue of credibility should be given, not only during the maincharge, but on any recharge. A trial judge might well instruct the jury on the issues of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] This principle was embraced and expanded by the British Columbia Court of Appeal in R. v. C. W. H. (1991), (BC CA), 68 C.C.C. (3d) 146.

Wood, J.A. delivered the judgment of the court and at p. 155 quoted the above paragraph from R. v. W.(D.) and added the following condition: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit. [14] Ultimately the Saskatchewan Court of Appeal dealt with the same issue in R. v. McKenzie (P. N.) (1996), (SKCA), 141 Sask. R. 221 and combined C. W. H. with R. v.

W. (D.) to arrive at the following instruction to the trier of fact per Tallis, J.A.at paragraph four: Given the conflicting versions presented in the testimony placed before the jury, it was essential for the trial judge to adequately instructthe jury on this aspect of the case. While it is not necessary to adopt any particular form of language, I find the following passages in R.v. Rose (unreported B.C.C.A., November 12, 1992) to be instructive and useful: For these reasons it was vital that the learned trial judge clearly instruct the jurors, if they preferred the evidence of Ms.

Kelly over thatof the Appellant, as they obviously did, that they were nevertheless required to acquit the Appellant if they had a reasonable doubt abouthis guilt after weighing her evidence along with all the other evidence. In fact, both the Supreme Court of Canada and this Court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and R. v.C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given inthose two cases.

The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R. v. W.(D.) at p. 409. The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R. v.

C.W.H., at p. 155: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

It was stated by Cory J. at the same page that this precise language is not required in every case. It should also be noted that Cory J. wasdealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflictingevidence of the complainant and the accused. ...

[ 15 ] I also refer to Her Majesty the Queen and T. J. B. , 2009 SKQB 236 , a decision of Mr. Justice Acton at paragraph 31: The complainant was a sincere and credible witness. I am sure that she believed what she was saying to be the truth. She seemed to be quite certain what the actual acts were that the accused was alleged to have done to her. However, she was extremely vague on dates and times, particularly with respect to the activities in the home on Monk Avenue.

I am also aware the witness was approximately six to seven years of age at the time of the alleged incidents and therefore may not have a good comprehension of dates and times. [ 16 ] And again at paragraph 32: I am aware that it was extremely difficult for the complainant to testify and she did her utmost to relay matters as she believed them to be to the court. [ 17 ] It is noteworthy that all of these cases essentially deal with the evidence of children who testified that they were sexually abused and the accused in the same case testified that he had not sexually abused anyone.

In W. (D.) a sixteen year old niece testified against her 42 year old uncle; in R. v. C.W.H. , the complainant, was the natural granddaughter of the accused, who was 11 at the time of the offence and 16 when she testified; and in Mckenzie a 24 year old married father of three was accused of sexually assaulting several girls under the age of 14, who were being cared for by his mother in a group home. [ 18 ] In the instant case, I note for the record that this offence occurred between four and six years ago, when the complainant was between the ages of ten and 12.

It was not brought to the attention of her mother and hence the authorities, until the complainant was 12, some two years after the alleged last incident occurred on 3 rd Avenue, where the parties resided at the time of the matrimonial break-up. Some twenty months has elapsed between the time of the first disclosure in March/April of 2010, and the trial date on January 10, 2012. This matter has been set for trial on four previous dates before it was finally heard on January 10, 2012.

There was no evidence called on behalf of the Crown to corroborate either opportunity, or to support any detail of the complainant ’ s allegations. The allegations by the complainant were incomplete as to time, place and any significant detail, as to how long, or under what circumstances the assaults complained of occurred.

No written record was kept or maintained by the complainant in regard to any of the actions complained of and they were disclosed to her mother in the middle of a heated argument between herself, her mother and her step-father, the accused, because she had been caught in either a lie, or an attempt to subvert the house rules of no interaction with her estranged brother. This is found at page 80 of the transcript in an exchange between Mr. Wagner and the complainant at line 18: C. tried putting his mouth in, like, he tried saying stuff too. And did that make you mad?

Yeah. [ 19 ] This had the effect of diverting the argument about the complainant ’ s behaviour to that of the behaviour of the accused and focussing the light on his actions. This seems an odd time to raise an allegation of sexual impropriety. [ 20 ] The complainant is obviously a bright young woman who gave her evidence in a straight forward, uncompromising manner, with no attempt, in my opinion, to either exaggerate or invent any particular detail.

She was very young at the time of the offence and a significant amount of time has passed since they occurred and no doubt the very troubling details of the incidents complained of would suggest a desire to forget all about them. I believe that she believes these incidents to be true. [ 21 ] That however is not the end of the matter. Her evidence in cross-examination essentially repeated and reinforced the allegations that she detailed in chief. Unfortunately, many of the questions posed to her in cross-examination resulted in a stock answer of “ I don ’ t know ” or I don ’ t remember.

In reading the transcript I count 16 times in chief that she could not remember and 88 times in cross- examination. This is to be expected of any witness when testifying about matters that happened years ago and which have not been reduced to writing at the time they occurred. Unfortunately, the lack of detail and any corroborative evidence leaves the trier of fact with

a great deal of uncertainty over what actually transpired between the complainant and the accused. Obviously the accused, in living with the family, had the opportunity and environment in which to commit these offences; he was not a stranger. [ 22 ] The accused in his evidence was also compelling, not prone to exaggeration and he made no attempt to denigrate the evidence of the complainant in any fashion. He also advised that the complainant had made previous complaints of interference with her person by one of her school teachers and by one of their neighbours which led to no further action.

His evidence in chief, which was not contradicted, was that once he was advised of the complaint by his common law spouse, was that he left the house and immediately presented himself to the local police station to advise them of the problem and to propose that he take a polygraph. This is not something that one usually expects from a person charged with a serious sexual assault committed on a person to which you are in a position of trust. His position is simple: he is not guilty of any of these acts he is accused of and would not do this to a person who he considers to be his daughter.

In my opinion, he was equally as compelling and believable as the complainant. [ 23 ] I am therefore, in considering the evidence and the applicable cases, and in particular our Court of Appeal ’ s decision in McKenzie , at step 2 of the test: Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [ 24 ] I have carefully considered all of the evidence. I have reviewed my notes of the case, and had available to me the transcript of all the evidence heard. I have listened to the recording of the evidence heard in court.

At the end of all of this, I am simply unable to decide whom to believe. Or to put it differently, I believe both of them are telling the truth as they see it or recall it. I do not believe either of them are lying but I am completely unable to decide whom to believe and I therefore must acquit the accused on all charges. [ 25 ] Dated at the City of Yorkton, in the Province of Saskatchewan, this 3 rd day of August, A.D. 2012. ___________________________________ B. M. KLAUSE, J