Her Majesty the Queen - v. -, 2017 SKPC 088

1. IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 088 Date: November 14, 2017 Information: 90215351, 90215352 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gordon Clifton Benning Appearing: Ms. Lauren Ellis For the Crown Mr. Michael Weger For the Accused JUDGMENT KOVATCH, J Background 1. The accused, Gordon Clifton Benning, faces two charges:

1 . That between December 2014 and September 2016 in the said region, did break and enter a certain place to wit, a dwelling house, located at F[ … ] Street North, Weyburn, Saskatchewan and did commit therein the indictable offence of sexual assault on N.C. contrary to section 348(1) (

b) of the Criminal Code ; and 2 . That on October 1, 2016 at Weyburn, he did commit an assault on N.C., contrary to

section 266 of the Criminal Code . - - 1. Both Informations were sworn on November 28, 2016. The Crown proceeded summarily on the common assault charge and by indictment on the break and enter charge. With respect to the break and enter, defence elected trial by a Provincial Court Judge. Not guilty pleas were entered to both charges. By agreement, the trials proceeded simultaneously. All of the evidence was entered on the break and enter charge, and by agreement applied to the common assault charge. Reduction of the break and enter charge to sexual assault 2. The complainant rented a suite from the accused. Ms.

N.C. resided in that suite from December 2014 to September 2016. During this time, the accused went to the suite on many occasions. On some occasions he had authorization or agreement to enter the suite to make renovations or improvements. On other occasions, he went there to collect rent or to visit, and the complainant allowed him entry. The complainant presented evidence, that I will come to, that the accused came over without authorization, entered her suite and sexually touched her.

However, she was very non-specific as to how often these unauthorized entrances were made, and when a sexual touching may have occurred. The Crown did not forcibly argue for conviction of the break and enter charge. Rather, counsel were agreed that the charge of sexual assault is a lesser and included offence within count number one, and the issue is whether the Crown has proved the charge of sexual assault. As a result, I will dismiss the charge of break and enter, but will proceed to determine whether the accused is guilty of the lesser and included offence of sexual assault.

The written copy of text messages 3 . During the course of the trial, the defence produced a booklet that purports to be a transcription or reproduction of a very lengthy series of text messages between the complainant and the accused. He seeks to rely upon the text messages from the complainant to the accused, in their own right, and also seeks to utilize those same text messages for cross-examination of the complainant. Crown counsel objects to the admissibility of these text messages for either purpose. 4 .

The accused testified that he used an app that enabled him to download these texts from his phone to his computer. Thereafter, they were printed by the computer and its printer. He testified that he did not alter any of the text messages and did not delete any text messages. He agreed that he could not categorically state that this was a complete record of all text messages. Some may have been dropped off as the phone or computer reached a certain capacity, or some may have been accidentally deleted. 5 .

The complainant, N.C., complained that the texts were altered, and that this was not a complete and accurate record of all text messages. 6 . Crown counsel objected that these text messages should not be admitted as they were irrelevant, and that I should not allow cross-examination on the basis of these text messages. During the trial, I advised I would permit counsel to put the texts before the court and allow the cross-examination. Further, that I would determine the admissibility of these items as part of this judgment. 7 .

I am now of the view and rule that the written text of the text messages is admissible as some evidence that certain communications or statements were made by the parties to each other. What weight can be ascribed to those individual communications is another question. Further, that cross-examination by defence counsel on the basis of these texts is both appropriate and admissible. In the text book by Paciocco and Stuesser, The Law of Evidence, 7 th Edition, page 466, the authors make the following statements:

The opportunity to cross-examine in order to test or to challenge a witness ’ s evidence is a vital part of the adversary process. In a criminal case, the Supreme Court of Canada has affirmed that the accused has a right to examine witnesses for the prosecution - without significant and unwarranted constraint - as an essential component of the right to make full answer and defence. Further at page 467: Each witness who takes the stand puts his or her credibility into issue, and counsel in cross-examination are free to discredit or to “ impeach ” the witness ’ s credibility.

As indicated in the quotes the right to cross-examine is a broad one. It seems to me that defence counsel was well within his rights to ask the complainant if she made certain statements, and to argue that these statements are inconsistent with her evidence of being repeatedly sexually assaulted. As a result, I conclude that the texts are admissible as is the cross-examination based upon those texts. The Evidence 8 . The complainant, N.C., testified that she is 34 years of age, and has lived in Weyburn for approximately two in a half years. Prior to that she lived in Brampton, Ontario.

Originally, she hails from Jamaica. She moved to Saskatchewan for employment as a lab technician at the W[ … ] Hospital. 9 . She testified that she came to Weyburn on December 8, 2014, and initially stayed in a hotel. She was there for approximately one week. She began her job on December 13. Her boss gave her a list of names of individuals who had rental properties. The accused ’ s name was on that list. 10 . She called the accused, who picked her up. He showed her a property that was available. It was a fairly nice place, and was close to the hospital.

He showed her a number of other things in and around the surrounding area. On a Tuesday, she advised that she would rent this suite. 11 . She testified that the following morning, being a Wednesday morning there was a knocking or pounding on her hotel room door. It was the accused. She allowed him entrance, and they completed and executed a written rental agreement. She said that she then went to the bathroom, and when she came out the accused was dressed in only his speedo ’ s. She said she was angry and kicked him out. At first he did not want to go, but got dressed and left.

She said there was no physical touching or altercation. Later that day, following work, she again saw the accused, and he apologized. He said this was a lapse in judgment. Not long thereafter, the accused took her to his home, where she was introduced to his wife and family. 12 . Ms. N.C. said she lived in the suite from December 2014 until September 2016. During this time, the accused came to her suite on many occasions. During many of these occasions, he made verbal advances and tried to touch her. She said he would grab “ her breasts and ass ” . This always happened at her suite.

On one occasion, he tried to pull down her shirt and look down her shirt. On many occasions he touched her breasts and ass. She did not let him and lectured him and pushed him away. 13 . The complainant said that on a number of occasions, Mr. Benning went into and used her bathroom. Further, that on two occasions, he took a shower in her bathroom. 14 . She testified that she accepted his initial apology, and liked the accused. She kept reminding him that he had a family. She said she put up with the harassment and touching until she realized there was no end in sight. Ms.

N.C. said the touching happened on many occasions, however there was nothing specific she could remember about the incidents. She did say that she never consented to such touching. She testified that on two or three occasions, he made offers of accepting sexual favours for rent. She never accepted any of those offers. On one occasion she said that he suggested she let him give her oral sex and he would excuse the rent. The complainant said she broke down. This offer was sickening.

15 . The complainant testified that on Monday, September 10, 2016, the accused came into her suite, and touched her breasts. She kicked him out. The next day, Tuesday, the accused again came to her house and she kicked him out. Then, on Wednesday, September 12, 2016 the accused again came to her suite. This time, he was accompanied by another male individual. The accused told her that she owed money, and he had to ask her to leave the suite. Ms. N.C. said she was very angry and said that she would leave. She moved out by September 15. 16 .

By October 1, 2016, the complainant was in new rental accommodation, with a new landlord. However, her new building and suite were very close to buildings and suites owned and operated by the accused. On October 1, 2016, she was advised that the accused texted her new landlord, and warned that she “ was cunning ” . Ms. N.C. went to the accused ’ s building to confront him. She was accompanied by her friend, Alysha. She said she entered the building as it was open, confronted the accused and was yelling and screaming at him. At that time he said that is enough, and grabbed her and pushed her backwards.

Her friend Alysha recorded this on her cell phone. A couple of weeks later she reported everything to the police. 17 . Ms. N.C. said the accused would often attempt to supply her with alcohol. The accused bought her wine. He brought her a bottle of tequila from Mexico. Ms. N.C. testified that she had a number of drinks with him. She said there were a lot of touching incidents, more than 25. 18 . Defence counsel began his cross-examination regarding the October 1, 2016 incident. Ms. N.C. said that her new landlord showed her the text message from the accused. It said she was cunning.

She agreed she was very upset by this. Ms. N.C. saw his truck at the building and decided to confront the accused. She said she yelled into the building and he said come on down. She did and she approached him. The video was replayed. In the video, she complained of sexual advances and sexual touching. She said leave me the hell alone, and I can ’ t take anymore of your bullshit. She complained of him being in the apartment and bathroom. She told him to “ get back to your fucking children ” . The accused then said “ get the fuck out of here ” , and immediately pushed her.

It must be noted that there were just seconds, perhaps less than five seconds, between the time the accused told her to “ get the fuck out of here ” , and then pushed her. Defence counsel suggested that prior to this confrontation, she never said that he had touched her. Ms. N.C. indicated that she did complain about the accused touching and flirting with her. She agreed that in September when the accused and another individual came to see her, she was served with papers to evict her from the suite.

She agreed that it was only September of 2016 that she called the police, and that on November 17, 2016, she gave a formal statement to the police. 19 . Then there was a lengthy cross-examination with respect to the texts. The complainant agreed that Mr. Benning often gave her rides to work and to the airport. She said these were mostly unsolicited, and that he offered. She also agreed that she asked him about legal advice and issues respecting her daughter. Ms. N.C. agreed that he often took her to Wal-mart and to the bank. She agreed he took her daughter N. to a Halloween party. On another occasion Mr.

Benning gave her a ride to the Wholesale Club. He also offered to take her and N. camping with her family. She agreed that Mr. Benning bought her wine and gave her a bike helmet for her daughter. 20 . Ms. N.C. testified that the accused wanted rent paid by cash. She wanted receipts, but Mr. Benning never provided receipts and said that she did not need them. 21 . Defence counsel suggested that Ms. N.C. did not pay rent on time and rent was frequently in arrears. Ms. N.C. denied this. Defence counsel then confronted her with a very lengthy series of texts, where Mr.

Benning was asking about the rent, and asking to come over and pick up the rent. Ms. N.C. told counsel that the accused would say he is coming to get rent but was really coming over because he wanted sex. Ms. N.C. contended at this point in time that the texts were amended and that the accused had deleted the sexual conversations. She said lots of texts were missing. 22 . Defence confronted her with a lengthy series of text messages where Ms. N.C. requested a ride to work, requested a ride to the Regina Airport, asked to be picked up at the airport, asked for other rides, asked if Mr.

Benning would buy her some wine, asked if Mr. Benning knew a notary, wished him a happy birthday, etc. 23 . The complainant also agreed that on November 17, 2016, the accused came to her work place and served her with notice of an application to the Rentalsman, pursuant to which the accused was seeking back rent. She said that she felt that after moving out, the accused was stalking her, and that is why he came to her place of employment. The complainant then went to the police and gave the formal statement. 24 . The Crown also called Romaine Ingram. Mr.

Ingram testified that he is 26 years of age, and has lived in Weyburn since November 2014. He is also from Jamaica. Several of his friends knew the complainant N.C.. Mr. Ingram met her through them. Through the complainant, he met her landlord, the accused. He testified that on occasion when he was visiting with the complainant, the

accused also came to visit. 25 . Mr. Ingram testified that on one occasion in 2015, he got some groceries, and delivered them to the complainant ’ s suite. At this time, the complainant was at work. While the witness was there the accused came out of her bathroom. He testified that the accused said he was there to fix a pipe. The witness said he thought this “ was a bit weird ” . The witness said the accused left right away and went to doing renos in the attic. 26 . The witness also testified that on one occasion he was watching t.v. at the complainant ’ s suite. Mr.

Ingram said he looked up and saw the accused looking in a window. On another occasion, when he was leaving the complainant ’ s suite, at approximately 9 or 10 p.m., he saw the accused going through a fence to the neighbour ’ s yard. 27 . The witness also testified that whenever he was there, he did not see the accused do anything inappropriate. Mr. Ingram said he never saw the accused touch the complainant. 28 . Under cross-examination, the witness indicated that the accused was often in to do repairs or renos to the upstairs of the suite. Mr.

Ingram also agreed that the incident when he saw the accused going through the bushes, Mr. Ingram did not see the accused ’ s face. 29 . The accused Gordon Benning testified that he is 38 years of age. He owns 35 rental units. When he was younger, he had a serious ski accident and brain injury. Sometimes it takes him a little while to answer questions. 30 . Mr. Benning testified as to the layout of the suite. It has a smaller upstairs or attic area. This area required renovations. He began these renovations in January 2015, shortly after the complainant moved in.

It took a couple of months to complete those renos. He said he provided a rental discount for the first couple of months, while he would be doing those renos. 31 . Mr. Benning testified that he drinks a lot of water. He reached an agreement with the complainant that she would allow him to use her washroom. He would use the washroom when he was there doing renos. Often, the renos were being done while she was at work. He recalled the one situation, where he came out of the bathroom, and Mr. Ingram was present. The accused testified that on one occasion, he used her shower. 32 .

The accused testified that the complainant was frequently in arrears of rent. She had difficulty paying the monthly rental in one lump sum. After some time, he suggested that she pay rent bi-weekly. He said that at first, he just kept track of rent in his head. However, the complainant made it more difficult. He began keeping a ledger because of her. The accused kept a running balance of the rent owing. At the end, about $4000.00 in back rent was owing. This was the subject of the application to the Rentalsman. 33 . Mr.

Benning testified that on Tuesday, September 12, 2016, he went to the suite to remind her about rent being owed. She said “ I am not fucking paying you ” . He said he replied by saying “ if you are not paying, you are out of here ” . The next day he filled out a Form 7, a notice to evict a renter. On Friday he and Dan went to her place to deliver the notice. Ms. N.C. exploded at him and said she would leave. She did move out. Mr. Benning then completed the application to the Rentalsman regarding rent owed to him and he had to then serve that application.

By this time she was out of the suite and he did not know where she was living. He went to the hospital to serve her at work. Again he was with Dan. She told him to get out of there. 34 . He testified that he believed that she was renting a place across the street, from an individual named Tony. He said he did send a text message to Tony saying: “ be careful - she is cunning. ” Less than an hour later Mr. Benning was at his building showing a suite to a prospective tenant. At this time, the complainant came storming downstairs. He said he did not know how she got down there. She was yelling at him. Mr.

Benning asked her to leave two times, and then exploded and said “ get the fuck out of here ” . At this time, he showed her the way to the door. 35 . The accused testified that he tried to help her out. Ms. N.C. was frequently behind in rent. He would stop often to see about collecting rent and remind her about it. He said he would often drive by her place, as he had a number of properties in that area. He would often text are you home and can I come by? The accused denied ever entering the suite without her permission.

He denied that he ever offered a discount of rent for sex, and denied that he ever touched her sexually. He denied sexual comments. He did however admit that he flirted with her. He denied that he ever got undressed at her hotel room.

36. Under cross-examination, Mr. Benning did admit that he is “hands on with his tenants”. He attempts to help them out. He agreed with counsel that he knows the provisions of The Residential Tenancies Act 2006, SS 2006, c R-22.0001. Further, that herequires 24 hours notice to enter the suite without permission, except in an emergency situation. He agreed with counsel that he startedkeeping his ledger for rent in early 2015. He said it was getting too hard to keep track of when all of the payments were coming in. 37. The accused agreed that he often picked up the complainant and took her to the bank.

This he said was a strategy to getrent. He agreed that on average, he has probably spoken to the complainant about once per day. Mr. Benning agreed with Crowncounsel that the complainant is attractive, and that he would flirt with her. He agreed that on occasion they did drink alcohol together,for example on a social occasion when playing cards. He also agreed that he sometimes brought wine or a couple of beer when comingto collect rent. Mr. Benning agreed that he bought her a bottle of tequila from Mexico.

He testified that she liked to drink, and part ofhis strategy was to use alcohol as a reward to obtain the rent. Mr. Benning denied any physical contact with her except for a Christmaskiss. Mr. Benning denied any physical relationship with the complainant. 38. The accused was asked about a couple of angry text messages and said that when the complainant became drunk, sheoften sent him an angry message. 39. Counsel also cross-examined regarding the October 1st incident. Counsel suggested that the accused did not ask thecomplainant to leave, but immediately stated “get the fuck out of here”.

The accused said he would not be surprised by this. He alsoagreed it was very quickly after that, perhaps less than five seconds later, that he pushed her. He did agree in cross-examination, that hedid make physical contact with her and pushed her at that time. He also agreed that he was embarrassed by what was happening in frontof a potential tenant. 40. Mr. Benning denied deleting any texts, and said there were no texts to be upset about. Analysis The Charge of Sexual Assault 41. Both counsel referred to the case of R v W.D. (SCC), [1991], 63 CCC (3d) 397 (SCC).

The issue here iswhether the Crown has proved the offence of sexual assault beyond a reasonable doubt. Having examined all of the evidence, I have toconclude that the Crown has not proved the charge beyond a reasonable doubt. I reach this conclusion for the following reasons. 42. Firstly, the complainant’s evidence is too general, and lacks sufficient specific details to convince me beyond areasonable doubt. The complainant frequently said that the accused “touched her breasts and ass”. However, she was unable to providespecific details of specific encounters.

She could not provide dates or times or advise of the conversations that took place before or after,etc. 43. Secondly, the texts and her evidence did not show fear or avoidance of the accused. I would have thought that she mighthave displayed some fear or avoidance to the accused in order to avoid being inappropriately touched. 44. Thirdly, the texts disclose that on many occasions, the complainant requested contact and favours from the accused. Forexample, she often requested rides, in particular requested rides to the airport in Regina.

I have difficulty understanding why she woulddeliberately place herself in a very vulnerable position like that if she was often being harassed and assaulted by the accused.

45 . Fourthly, the texts and the cross-examination indicate that there was in fact a problem with rent being paid on time, and the accused was frequently making contact in order to obtain the payment of rent. This was denied by the complainant. I do not know why she would deny what is a fairly obvious fact on the whole of the evidence. 46 . Fifthly, none of this was reported to the police and there was no investigation or charges made until after the accused had commenced and served notice of proceedings before the Office of the Rentalsman, related to the collection of back rent. 47 .

None of the above establishes that the sexual assaults did not occur. I cannot determine and expressly do not determine that the complainants allegations are unfounded. I am certainly not determining that she has made things up. To the contrary, there is evidence to the effect that the accused ’ s relationship with the complainant was at best unprofessional and may even have been unhealthy or dangerous. But the accused is not required to prove his innocence. To the contrary, the Crown must establish guilt beyond a reasonable doubt.

For the above mentioned reasons, I have this lingering and uneasy feeling about matters. Quite simply, I am not able to determine whom I believe. I am not able to determine beyond a reasonable doubt that this sexual assault did occur. This reasonable doubt must be resolved in favour of the accused, and accordingly I find him not guilty of the charge of sexual assault. The Charge of Common Assault 48 . There is abundant evidence that the accused told the complainant “ get the fuck out of here ” and immediately pushed her. This was an unwanted touching consistent with and capable of supporting a charge of assault.

The only defence advanced by the accused was the defence of property provisions contained in

section 35 of the Criminal Code . 49 . There was evidence that the complainant lawfully entered the building and approached the accused. There was evidence that she was told to come on down. She was in a public hallway in the building, between the suites. There is nothing in the evidence that would allow me to conclude that she was not entitled to enter that hallway to speak to or confront the accused. I seriously question whether the defence of property provisions have any application to the case at bar.

I would conclude that the accused was not attempting to defend his property or prevent damage to his property. Rather, he was in an embarrassing situation and immediately assaulted the complainant to get her out of there. Under

section 35 of the Criminal Code , the accused was entitled to ask her to leave his property, and if she refused to do so, was entitled to use reasonable force to remove her from the property. By telling her to get “ the fuck out of here ” , he was clearly asking her to leave. In my view however, he was required to give her a reasonable opportunity to leave, before using force. Use of force to force somebody off of the property before they have had an opportunity to comply with this directive to leave the property is not reasonable force. 50 .

In these circumstances, I do not believe the defence of property is available to the accused, and find him guilty of the charge of assault. Dated at the City of Weyburn, in the Province of Saskatchewan this 14 th day of November 2017. ___________________________ D. KOVATCH, J

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